When someone passes away, the property making up their estate will be distributed to their heirs and beneficiaries. Typically, the estate is required to go through probate in order to be distributed. This will involve many steps such as proving a will, if there is one, locating the property and creating an inventory, appraising property as necessary, paying the debts and taxes of the estate, and finally distributing the property that remains. These are primarily the executor duties. Here is what you need to know if you are to serve as an executor of a loved one’s estate.
The executor must first be appointed
Before the probate procedure can get underway, the court must appoint an executor to manage the process. When there is a will, that document will generally identify who the executor should be. If that is not the case, then the court will be required to appoint someone to serve in that role. The executor is expected to be impartial in representing of all parties who have an interest in the estate. The executor is required to take possession of the estate property and distribute it property accordingly, once debts and taxes have been paid.
Executor duties include initiating the probate proceedings
One of the first steps in fulfilling executor duties is filing the petition to initiating the probate process. The petition is filed with the California Superior Court in the county were the decedent was living at the time of death. The petition is needed for the court to schedule a hearing, which is typically held within 30 days of filing the petition.
The executor must issue notices to those with an interest in the estate
Once the petition is filed, a notice of hearing must be published at least three times in the local newspapers. The executor duties include mailing the notice to every person named in any existing will, along with all legal heirs of the deceased. The executor must also be provide notice to potential creditors.
If there is a will it may need to be “proven”
If a will exists, it will likely be necessary to “prove” the will is valid unless it qualifies as a “self-proving” will. In some situations, the will may contain specific language and reference an affidavit from each witness who signed the will. Having these elements will make it unnecessary to prove the validity of the will. Every state has its own laws regarding whether or not self-proving wills are recognized and, if so, how they must be created.
The executor must collect the assets and create an inventory
One of the main duties of the executor is to take possession of all of the deceased’s assets that are subject to probate. There are several types of estate planning tools that are not required to go through probate. If the title on an asset must be transferred into someone else’s name, the executor will take care of that. The following types of assets that require only a title change include stocks and bonds, mutual funds, brokerage accounts, bank and credit union accounts, physical assets such as real property, motor vehicles, boats, and planes. The court typically requires an inventory of the estate property. In some cases, an appraisal of real and other property may be required.
Legitimate debts must be paid by the executor
Once the executor provides notice of the death to creditors, those with debts owed by the estate must submit a claim. If the debts are determined to be valid, they will be paid from the estate by the executor before any other distributions can be made. This would include bills and funeral expenses. California requires creditors to submit their claims within 4 months of the appointment of the executor.
The executor must be sure all estate taxes are paid
The executor is also responsible for ensuring that all estate taxes are paid. In most cases, an executor would not be held personally responsible for estate taxes. However, if the estate has been distributed before the taxes are paid and sufficient property does not remain to pay those taxes, personal liability could be imposed.
Providing the accounting and closing the estate by the court
The final step in the probate process is closing the estate. This step requires providing an accounting of all transactions taken by the executor relating to the estate. A final petition summarizing the estate and reporting all actions taken on behalf of the state will be filed with the court. The petition also includes the fees to be paid to the executor and the estate attorney, if there was one. As long as there are no objections and the court approves the accounting, then an order will be entered closing the estate. At that point, the executor can then distribute the remaining assets to heirs and pay any necessary fees.
Join us for a FREE seminar! If you have questions regarding responsibilities of executor in probating a California estate, or any other estate planning needs, please contact the Schomer Law Group for a consultation either online or by calling us at (310) 337-7696.
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