Probate can be confusing-as the executor (also referred to as the personal representative)-you are expected to handle someone’s affairs in their best interests while simultaneously grieving. You have the obligation to safeguard assets, pay debts, and ultimately administer and close the estate correctly.
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The following article summarizes some common probate pitfalls and the steps you can take to avoid the traps.
What Duties Does an Executor Have?
After an executor has been appointed by the court, he or she is serving as a trusted steward for the estate and owes a fiduciary duty to the beneficiaries. In other words, an executor must act diligently, transparently, and equitably during the entire process. You will be working with the court, banks, and heirs while being able to keep good records and adhere to the will and the laws of the State of California.
The typical duties for executors will include:
- Locate, protect and value the assets of the estate
- Set up an estate banking account, and maintain accurate records
- Serve as the communication point with the beneficiary of the estate and provide updates on the status of the estate.
- File all required forms and tax returns while retaining a copies and receipts.
- Distribute the property until all debts and expenses are paid.
Missing Probate Deadlines in California
Probate in California operates in a court schedule and missing dates can slow down distributions and create costs. From filing your petition for probate with the court, to submitting the inventories and tax forms, the court authorizes the administration of the estate process and expects movement on deadlines. Some counties may require additional local forms, in addition to the state-wide, so make sure to check your county court’s website. If you find yourself with a deadline you didn’t expect or are wondering what to do next, consult a probate attorney before the matter becomes worse.
Watch for notices, hearing dates, and requests for evidence. Once you have been appointed and have your letters testamentary, create a calendar and reminder system for every filing or report. Diligence belongs in your duties as a fiduciary, so if you have any doubt ask the court clerk what the next event is so that you do not lose any inertia.
Mismanaging Estate Property
Estate property (see here for more insights) must be protected against loss, damage, and unnecessary exposure to risk. Estate property includes the decedent’s real estate, investments/assets, vehicles, keepsakes, etc. Manage everything as though it belonged to someone else, because it really does, and certainly document each and every decision. If a living trust is involved in the estate, then each party and task needs to be managed so that the probate and trust administration are coordinated.
Good estate management will look something like the following:
- Change locks or control access to secure all valuables and properties early on or immediately,
- Open estate accounts, never co-mingle personal and estate accounts,
- Obtain appraisals and itemize value based on fair market value before selling estate property,
- Keep written bids or estimates for all repairs, sales, and disposals so you can demonstrate to the court that you acted prudently
- Don’t distribute any funds from the estate until you know the estate will be able to pay its obligations or bills.
Failing to Notify Creditors
It is your responsibility to give proper and timely notice to creditors so that they can file claims in accordance with the allowed time. Omitting notice or delaying notice can leave you, and the estate, open to an unwanted surprise bill or obligation down the road. When it is applicable, publish your notice, give all formal notices to known creditors notifying them of the estate matter, and track all of your deadlines on when claims must be received. You should create a simple claims log for your evidence to track all of the claims, including date, amount, and your decision on each claim. This will allow you to begin to prepare the final account much more easily when it is time to summarize the claims log to the court.
Even after a decedent planned the estate properly and carefully, new obligations might surface once probate begins to address the final obligations and bills. Track every claim against the estate as distinction of whether it was accepted, rejected, or is in dispute. Have funds for taxes and final bills set aside in escrow before a distribution takes place to beneficiaries.
When to Seek Legal Help
You do not need to take the entire process on you own. Probate involves potential tax obligations, real estate transactions, and other court matters that could start to pile up questions quickly. Consulting professionals early on takes time away from the case and could help in avoiding conflict with family members.
Consult a professional when:
- The will is being contested or is unclear,
- The estate owns or is an owner in a business, or an ownership of real property out of the state,
- There are complex tax issues, or returns that are filable,
- The estate may be bankrupt or legitimately in debt,
- Heirs disagree over valuations or distribution of estate assets.
For local representation, practical advice, and estate processes contact:
Hunsberger Dunn LLP
Plaza Dr STE G, Tustin, CA 92780
714-663-8000
https://www.hunsbergerlaw.com/
We will guide you onward to the next step as well as prepare your filings and move your case forward confidently so you and the court can close the estate properly. Having professional support can reduce delays, costly mistakes, and family conflict.