Trust administration and probate are the processes that determine what happens to a family’s assets after a death. Done right — with a properly drafted and funded plan — they can be handled privately, efficiently, and without court involvement. Done wrong, or without planning, they become expensive, public, and slow. The difference almost always traces back to decisions made long before the death occurred.
Last year I worked with a client who signed his trust documents on May 2nd. He died on May 3rd. In the time between signing and death, there was no opportunity to transfer his financial accounts — worth several million dollars — into the name of his trust. Under most circumstances, those assets would have been subject to probate, with all that entails in terms of time, cost, and public exposure.
That is not what happened. Because the trust was properly drafted — including a Pour-Over Will and a Schedule A listing all intended trust assets — I was able to file a Heggstad Petition with the court, demonstrating that it was the client’s clear intent to have those accounts in the trust, and that the transfer had been impossible given the timing. The petition was approved. The assets transferred to the trust. The beneficiaries avoided many months of waiting and saved significantly on fees compared to a full probate proceeding. That outcome was not luck. It was the result of documents drafted correctly — with the right provisions in place — by an attorney who knew how to use them when it mattered most.
Most families don’t know there are two distinct processes for settling an estate. Which one applies depends not on whether a person had a will or a trust — it depends on how their assets were titled at death.
A court-supervised public process for transferring assets owned in the decedent’s individual name with no beneficiary designation or survivorship rights. The court appoints an executor or administrator, oversees the process, and all filings — including financial details and beneficiary identities — become part of the public record. Commonly takes 12 to 24 months in California.
A private process handled by the successor trustee without routine court supervision. Applies when the decedent created and funded a living trust. Generally faster, less expensive, and entirely private. The trustee takes over management of trust assets immediately after death — no court appointment required.
The most important practical question is not simply whether the decedent had a will or a trust. It is how the assets were titled at death. A bank account in the decedent’s individual name with no beneficiary designation may require probate even if the decedent had a trust. A house titled in the name of the trust is administered through the trust. A person can have both processes running simultaneously on different assets.
California’s probate reputation is well-earned. Even an uncontested matter commonly takes twelve to twenty-four months. The costs are set by statute — and calculated on the gross value of probate assets, not the net equity after mortgages or debts.
On a $1 million estate — not unusual for a West Valley homeowner — the combined statutory fees for attorney and executor run to approximately $46,000. Additional costs include court filing fees (typically around $800), publication fees for notice to creditors (around $300), and bond premiums that can run into the thousands depending on estate size. Critically: these fees are calculated on the gross value of real property, not the equity. A home worth $1.2 million with an $800,000 mortgage generates fees based on $1.2 million.
The most common misconception among successor trustees is that trust administration is an informal process — collect the accounts, pay a few bills, distribute the remainder. In California, that assumption is materially wrong.
Although trust administration usually occurs outside court supervision, the successor trustee is immediately subject to fiduciary duties, statutory notice obligations, accounting duties, tax and creditor considerations, and potential personal liability for missteps. The three most consequential errors trustees make:
California Probate Code Section 16061.7 requires the trustee to notify all trust beneficiaries and the grantor’s legal heirs — including heirs who receive nothing under the trust — within 60 days of the grantor’s death. The notice must contain specific statutory language that starts the 120-day trust contest period. Failing to send it, or sending it only to named beneficiaries without including all heirs, can leave the contest period open indefinitely and expose the trust to future litigation.
What would have avoided it: Identify all beneficiaries and all intestate heirs immediately after death. Prepare a compliant notice, serve it within 60 days, retain proofs of service, and calendar the 120-day contest period.
Trustees often feel pressure from beneficiaries to distribute assets quickly. But distributions should not occur until the trustee has identified all assets, determined debts and expenses, addressed taxes, considered creditor exposure, resolved title issues, and allowed relevant contest periods to run. Premature distributions are dangerous: if a later creditor claim, tax liability, or administrative cost arises, the trustee may need to recover funds from beneficiaries — or face personal liability for the shortfall.
What would have avoided it: Establish a reserve, complete an inventory and valuation, review creditor and tax obligations, wait for contest periods to end, and prepare a full trust accounting with a written distribution plan for beneficiary approval before any distribution.
Every receipt, disbursement, reimbursement, and distribution must be documented. Commingling trust funds with personal funds creates legal exposure and makes accounting impossible.
What would have avoided it: Open a separate trust bank account immediately, retain all statements and invoices, maintain a transaction ledger, and prepare a formal accounting for beneficiary review before final distribution.
Founder, The Estate Planning & Elder Law Firm
Probate is not inevitable. It is the default process for assets that weren’t planned around.
The strategies that avoid it are straightforward — but they require action before a death occurs, not after.
California law does not require it, but the fiduciary duties, statutory notice requirements, and personal liability exposure involved make experienced legal guidance strongly advisable — particularly where there are multiple beneficiaries, significant assets, tax considerations, or any dispute. A trustee who gets it wrong may be personally liable for the consequences.
A Heggstad Petition is a California court petition asking a judge to confirm that an asset belongs in a living trust even though it was never formally transferred. To succeed, the petition must show two things: first, a Pour-Over Will directing that any probate estate is to be transferred to the successor trustee of the trust; and second, that it was the decedent’s intent that the asset be in the trust, which is demonstrated through Schedule A of the trust — the document listing the assets the grantor intended to place in the trust. A successful petition can spare a family from full probate on specific assets and is a remedy I have used frequently in my practice.
The minimum timeline is governed by California law. The trustee must send the required Section 16061.7 notice within 60 days of death. From the date notice is given, beneficiaries have 120 days to contest the trust — so at minimum, distributions should not occur until approximately four months after the notice date. In practice, most trust administrations take longer once asset valuation, creditor review, tax obligations, and accounting are factored in. That said, where there is no apparent dispute among beneficiaries, I routinely include a waiver of notice form that, when signed by all beneficiaries, eliminates the 120-day waiting period and allows the administration to move more quickly. Trust administration is almost always faster and less expensive than probate.
It is a statutory notice required under California Probate Code Section 16061.7 that the successor trustee must send to all trust beneficiaries and legal heirs within 60 days of the grantor’s death. It must contain specific statutory language that starts the 120-day period during which the trust can be contested. Failing to send it correctly — or at all — leaves that contest period open, potentially exposing the trust to litigation years later.
Sometimes. Assets with valid beneficiary designations, joint tenancy property, and accounts with payable-on-death designations pass outside probate regardless of whether the person had a trust. California also has a small estate affidavit procedure for estates under $184,500. For larger estates without a trust, probate is generally unavoidable — which is why planning ahead matters.
The trustee should immediately identify all trust and non-trust assets, determine who the beneficiaries and legal heirs are, prepare and send the Section 16061.7 notice within 60 days, open a separate trust bank account, and consult with an estate planning attorney to confirm authority and understand their specific obligations. Taking these steps correctly from the start prevents the most common — and most costly — trustee errors.
The decisions made in the first weeks after a death determine how the entire process unfolds. A first conversation is straightforward — we review the situation, explain what California law requires, and make sure the trustee or executor understands their obligations before taking any action. No obligation. Just clarity at the moment it matters most.
