Mistakes Executors Generally Make
Being named the executor of a family member’s (or other loved one’s) estate is, in many ways, an honor. The executor is the person responsible for administering the estate. If the law requires, a probate must be initiated. Probate is the legal process a probate court uses to make sure the deceased person’s creditors are paid through estate settlement and if anything is left the distribution of the estate consistent with applicable law. If you have been named the executor of an estate, you are legally required to wrap up the estate’s affairs, pay legitimate creditors, arrange for the payment of any income and estate taxes, and distribute the estate assets pursuant to applicable law.
However, many people are unaware of the important and sometimes legally confusing role that the executor is being asked to assume and the law applicable to the administration of the estate and the role of the executor. When acting in the capacity of an executor one must be aware the probate process can be complicated.
Among numerous factors, complexity usually depends on the size and nature of the assets to be probated, the number of parties involved and how well those parties get along. All too often, executors without quality legal guidance make mistakes during the process of carrying out these responsibilities—mistakes that expose the estate to litigation, increased tax liability and other potentially serious consequences. Most often, it is advisable to retain the services of a competent probate attorney.General Basic Probate Steps
1. In the Event There is a Will the Executor Named in the Will Must File a Petition for Probate. The petition for probate must be served on beneficiaries, heirs and possibly others, as prescribed by law. The notice of the hearing established by the court must be published in a publication recognized by the court.
2. If there is a Will, the Court will admit the Will and appoint the petitioner as personal representative.
3. If there is no Will, the Court will appoint an administrator. Notice of the court hearing on the petition must be provided as provided by applicable law, including the publishing of the notice of hearing in a court recognized publication.
4. Notice Must be Given to Creditors. Once the personal representative is appointed, the personal representative must give formal notice to all known creditors pursuant to applicable law. The personal representative determines which creditor's claims are legitimate to be paid from the estate assets.
5. The probate estate property must by inventoried and appraised by the court appointed appraiser, including real property, stocks, bonds, business interests, etc.
6. Once all matters are completed under applicable law the personal representative will petition the court for the authority to transfer the remaining assets to appropriate persons.Common Costly Mistakes
1. No Outcome in Mind. “Be done with it and get it over” must never be the goal.
2. Not Educating Yourself on the Probate Process and Not Retaining the Services of a Competent Probate Attorney. It is common for situations to arise where you realize you are in over your head. You should consider retaining the services of a competent person to assist.
4. Failure to Timely and Properly Take Control of and Faulure to Protect Estate Assets. You must take exclusive control of estate assets. For example, as an executor you do not want to allow another person to have access to estate assets. Secure real estate to prevent loss. Losses can result from break-ins. Real property should also be protected against loss for nonpayment of taxes and mortgages.
You should ask the post office to forward all mail so that you have access to the decedent’s mail. When mail piles up, it is a sure sign that the property is vacant inviting burglars or vandals. In addition, decedent’s mail will make you aware of important notices and claims from creditors and/or lenders. Also, when mail piles up, it is a sure sign that the property is vacant.
3. Choosing Friends Over the Right Professionals to do a Particular Job. Remember, you might need a probate attorney, realtor, tax advisor, etc. Well-meaning friends may not be the best choice. Make sure you pick your team of professional experts that will get the job done correctly.
4. Not Keeping Accurate Accounting Records. Accurate record keeping is a necessity in that you will run into major problems when trying to conclude the estate. Also, you may fail to include proper schedules. Even if the schedules are property you may find yourself placing erroneous entries on them. At the time of settling the estate all financial numbers must be correct, align and make sense.
5. Failing to Timely Conclude the Estate. Once executors get to the end of an estate, oftentimes they just distribute the money without ever timely or finally closing the estate. In California, before the estate can be closed, the representative must file a Petition for Final Distribution. This generally includes three parts:
- You must provide an accounting (unless waivers have been signed by all persons entitled to distribution;
- You must provide a report, consisting of a complete summary of the actions taken, and
- Finally, you must ask the court to approve the accounting (if filed), approve the distribution of the estate assets, plus any additional matters that require court approval (such as allowing fees to the representative or the attorney).
In your time of grief, dealing with probate can be overwhelming. More importantly, the average person does not have the necessary experience, such as, dealing with courts, probate law and local court rules and procedures. Please contact me if you wish to gain more information on Orange County or California probate. I can be reached by phone at (949) 243-0408, by email at email@example.com or through my online contact form.