The Do’s And Don’ts Of Probate

Edited by Bob Brumfield

Executors and administrators are court-appointed personal representatives of the estates of individuals who have passed away. To that end, they are tasked with a number of duties and responsibilities, and they are held to a strict fiduciary standard with regard to the actions they take in carrying out those duties.

If you have a loved one who has passed away, we strongly encourage you to get in touch with a qualified probate administration attorney as soon as practicable. Your attorney will assist you with the extremely complex probate administration process from beginning to end, and will serve as a trusted advisor on whatever legal issues may arise.

If you’ve been nominated by the decedent’s will to serve as the Executor of an estate or have a loved one who has passed away without a will — and you have minimal or no experience handling probate administration matters — you may be feeling a bit lost and a bit nervous. These are perfectly normal reactions, as the failure to adequately perform your duties as Executor or Administrator of an estate can lead to personal liability.

Consider the following dos and don’ts when it comes to being the Executor or Administrator of an estate in California.

Don’t Make Payments Without California Court Approval

Executors and Administrators must inventory estate assets, communicate with creditors and taxing authorities, pay taxes and debts of the decedent, make payments for various services (— such as professional appraisals, tax preparers, and attorneys) — and, eventually, distribute the estate assets to the rightful beneficiaries. Failure to adequately accomplish these tasks may result in personal liability for breach of fiduciary duty.

It’s important to note, however, that Executors and Administrators cannot make payments and distributions without first securing court approval. In addition, special procedures must be followed when selling or liquidating estate assets.

Securing court approval for routine expenses or sale of assets can slow things down considerably. If you wish to avoid having to obtain court approval for every payment or asset management decision, then you can request that the probate court grant you full powers as the estate representative. If the request is granted, the need to obtain court approval for most such actions can be avoided.

Don’t Act as the Executor Before a Formal Appointment in California

Being nominated as Executor in a loved one’s Will is often considered an honor. However, you may not move forward with your duties until you have been formally appointed by the court. In California, the fact that the Will names an Executor is not — in and of itself — a guarantee that the court will appoint the named individual as Executor. The court must still “vet” you to ensure that you can handle the responsibilities at issue.

Do Identify and Notify All Creditors and Beneficiaries

The probate process in California is designed to ensure that all creditors and beneficiaries secure what they are entitled to receive from a decedent’s estate. As the Executor or Administrator, you must give creditors and beneficiaries the opportunity to engage in the process — It is your duty to notify all known creditors and beneficiaries regarding the passing of the deceased individual. You are also obligated to provide certain specifics regarding the probate hearing process.

Do Be Cognizant of Applicable Deadlines for Executors

Executors and Administrators must not only inventory and appraise the estate assets, identify and serve notice upon creditors and beneficiaries, and manage the assets, but they must also do so within applicable, very rigid deadline periods.

For example, Executors and Administrators in California have four months from the date of their appointment to complete a comprehensive inventorying and appraisal of the estate assets. An unjustified delay may give rise to penalties and additional administrative burdens. Under certain circumstances, a lengthy delay may even be deemed a breach of fiduciary duty and expose the Executor to personal liability.

Do Make Sure to Collect Remaining, Unpaid Assets 

As the Executor or Administrator, it’s part of your job to identify all the assets belonging to the deceased individual — including those that are still unpaid — and secure them on behalf of the estate. These assets may include unpaid salary, retirement benefits, healthcare benefits, disability benefits, and payments under contract. If a third party prevents you from collecting the unpaid assets, you may need to request a court order to compel payment, or may need to actually file a lawsuit on behalf of the estate.

Guidance on Being Executor or Administrator of an Estate in CA

Executors and Administrators are tasked with an enormous range of duties and responsibilities when closing out an estate. As such, it’s worth consulting with an experienced probate administration attorney who can provide professional and effective representation for navigating the twists and turns that define the California probate process.

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About the author

Bob Brumfield

Attorney Bob Brumfield has been practicing law since 1984 and regularly receives the “Top Lawyers in California” award as well as the “Client Distinction” and “Client Champion” awards from Martindale-Hubbell.

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