Why You Need an Attorney When You Become an Executor

| Dec 11, 2019 | Executors And Fiduciaries |

Why You Need an Attorney When You Become an Executor
When you are named the executor, or personal representative in California, of someone else’s estate, you may not even be aware that you have been nominated for this fundamental probate role. It could be that someone such as your parent named you without letting you know, or that the designation had long since been forgotten.  Whatever the case may be, when a loved one passes away, and you are the named executor, you will have numerous legal obligations and responsibilities. At a time like this, having the advice of an experienced California probate attorney is essential.

What does an Executor of a Will do?

When you are a named executor (personal representative), someone else has nominated you to be responsible for filing his or her will with the probate court and managing their estate when they pass away. Once appointed, the executor will be given documents that allow him or her access to the deceased person’s financial accounts and other information so that they can manage the estate. The executor will have to inventory the person’s assets and find out about his or her debts and report this information to the probate court. Then, the executor will be required to provide notice to any known creditors and heirs about the probate case. The executor will also have to make sure valid debts and taxes are satisfied. After these debts are paid, the executor will distribute the remainder to the decedent’s heirs.

What Can’t an Executor do?

An executor can’t change what the testator put in his or her will even if he or she disagrees with their decision. Further, if the will was not properly executed before the testator’s death, the executor cannot sign or otherwise cure the problem with the document. Also, the executor cannot conceal assets or fail to notify known creditors of the probate case. The executor cannot distribute estate assets to heirs before paying existing debts and taxes. Additionally, an executor can’t start the probate process before the testator’s death or prevent heirs from contesting a will.

Here are some of the reasons why you need an attorney when you become an executor:

The California Probate Process is Complicated

The nominated personal representative is required to locate and file the decedent’s will with the probate court within 30 days of the individual’s death.  Filing the will with the probate court begins the process. You must then ask the court to designate you as a personal representative. At this point, the process gets complicated and having an experienced probate attorney can help you avoid numerous serious mistakes.

Assessing the Estate

Once your request to be the personal representative is granted, you will have specific duties and the legal authority to complete particular tasks, including conducting an inventory of all assets and debts. Depending on the size of the estate, it may or may not need to go through probate. An experienced California probate attorney can help you assess the estate and determine if probate is necessary and if there are any assets that may be exempt from the process. A probate attorney can also provide advice about conducting the inventory and preparing your required inventory report for the probate court.

Notifying Creditors and Paying Debts

As a personal representative, you will have to identify the decedent’s debts and notify creditors that the individual has died, and the estate is before the probate court. The notice requirement is critical, and it’s vital that you follow the right procedures. Your California probate attorney can assist you in performing a search for the creditors and making sure that they are properly notified according to California law.  You will also be responsible for approving or denying debts to be paid from the estate. Your counsel can help you review debtor claims and determine their validity.

Managing Taxation Issues

As the personal representative, you will be obligated to file a tax return on behalf of the estate and prepare and file other tax documents. A California probate attorney can review the filings and help you ensure that you are providing complete and accurate information.

Navigating Through the Legal Aspects of the Probate Process

Unfortunately, the California probate process has numerous procedures and rules that can create confusion. A California probate attorney can assist you in navigating through the court’s procedural requirements and the laws that apply to the probate process.

Dealing with Heirs

When you are dealing with an estate, there can be potential problems with heirs. Managing allegations that you breached your fiduciary duty to the estate or otherwise acted improperly as a personal representative can be distressing.  One of the best ways to avoid these types of accusations and other problems with heirs is to work with a California probate attorney throughout the process.

At the Law Offices of Alice  A. Salvo, we are California probate attorneys who can provide you with the advice you need to successfully perform the duties of being a personal representative.  Please contact us online or by phone today to start your solution. https://www.salvolaw.com/

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