The person who creates a trust is called the “grantor.” The grantor often administers the trust as the named trustee until they become incapacitated or die. When either occurs, the person the grantor named as the successor trustee will begin to manage the assets of the trust and administer the distribution of assets to beneficiaries as directed by the trust document.
While everyone should have a will, there are two major benefits to also having a trust as part of your estate plan. First, if all the grantor’s assets are included in the trust, the estate will not have to go through probate upon the grantor’s death. On average, it takes nine months for an estate to go through probate in California, but it can take years if the estate is complex, or if a will or heirship is challenged.
Attorneys representing the probate estate are entitled to what is called a "statutory fee" based on percentages that decrease as the estate gets larger. For example, an attorney’s statutory fees for an estate valued at $500,000 would be $13,000. Trust administration likely will take less time and cost less in attorney’s fees than settling an estate through probate.
Additionally, because the estate does not go through probate (which is a public judicial process), the decedent’s assets and beneficiaries remain private with a trust.
The Role of the Trustee
The trustee is the person who manages the trust then distributes the assets according to the grantor’s wishes. Grantors often name themselves as the primary trustee and name someone else as a successor trustee. The successor trustee takes over management of the trust upon the incapacitation or death of the grantor.
The successor trustee has six major responsibilities in their role:
- Identify beneficiaries of the trust by knowing who the beneficiaries are and how to locate them.
- Pay administrative expenses, including the grantor’s funeral and burial costs, insurance premiums for assets, asset appraisal costs, and fees for accountants and attorneys for services rendered on behalf of the trust.
- Address debt, including mortgages, loans, credit cards, and medical debt.
- Distribute assets according to the provisions of the trust by making sure the grantor’s wishes are carried out as specified.
- Prepare the trust’s taxes every year until all assets have been distributed and there are no more assets belonging to the trust.
- Create a reserve fund to cover things like maintenance and repair of trust assets. For example, if real property needs to be maintained, money from the reserve fund would pay someone to maintain it, so long as that property is an asset of the trust.