After the owner of an estate passes away, the state goes through probate. Probate can be a somewhat expensive and difficult process in San Diego, CA, and there are many executor duties. A probate attorney can help you to set up your estate to make these duties as simple as possible, or even serve as an executor if you wish to spare friends or family this duty. An attorney can also help an executor fulfill all their duties more smoothly and quickly.
Executor Duties During Probate in San Diego, CA
Organizing and Filing All Documents
The first step is to find and organize all the documents related to the estate and file the will with the probate court. Bear in mind that since the probate court will want the original will, it’s wise to make multiple copies and have them notarized. Other documents that need to be gathered including the death certificate, any documentation about trusts, deeds entitled to all property, and whatever documents relate to financial accounts or life insurance policies.
In California, the executor named in a will must file a Petition for Probate of Will and Letters Testamentary in the superior court where the decedent lived within 30 days. It’s also important for the executor to go through the terms of any trusts belonging to the estate at this point to begin fully understanding next steps.
Notifying Everyone
The process of going through all this documentation should allow the executor to work out all the entities that will need to be notified of the decedent’s death. This will, of course, mean first the loved ones and any beneficiaries who are not relatives. It’s part of the duty of the executor to keep all beneficiaries in the loop about everything happening with the estate, and this should be an ongoing process.
The executor must also notify any other party that has an interest in the decedent’s death. This would include all creditors, the Social Security Administration and the DMV, as well as the IRS, the post office, any landlord, and all banking entities. If the executor can’t find some of the beneficiaries, there’s a very specific process that must be followed at that point. This process allows the courts to verify that a good faith attempt has been made to find all beneficiaries and creditors.
Valuing All Assets
One of the most time-consuming duties of the executor is taking a complete inventory of all estate assets and then valuing them so they can be distributed according to the terms of the will. The finalized inventory is usually filed with a probate court, and it’s often necessary to hire professionals to make sure that these appraisals are done properly. These experts could be anyone from art experts who give an evaluation of a collection of fine art to someone particularly skilled at valuing a business that needs to be sold or divided. All estate debts must be calculated as part of this process, as well.
Another important part of this process is confirming ownership of all assets. There may be property that is jointly owned, such as a business or real estate, and some property may be community property that belongs to a spouse with right of survivorship. It’s important to understand all of this so as to fully understand what is included in probate and what is not. There will also be some assets that do not go through probate even if the estate itself does. This may include trusts, life insurance policies with a specific person named as a beneficiary rather than the estate itself, and more.
Managing Assets
Other management tasks can involve selling assets that need to be divided, coordinating with trustees, collecting debts, and keeping a written record of everything done involving the estate’s assets. Executors can expect to be frequently required to produce documents tracking all their financial activities related to the assets under their care.
Proving the Will
Before any assets can be distributed, the executor must prove that the will is valid and legal. California recognizes three types of will: attested, holographic, and statutory.
Attested Wills
These are wills that are typed out, prepared by an attorney, and signed in the presence of a minimum of two witnesses. The witnesses must then sign an attestation clause under penalty of perjury: meaning that if they are found to have lied about having witnessed the will being signed by the testator, they can be charged and prosecuted for perjury. This type of will is considered “self proving,” which means no additional testimony is required to establish that it is valid. If you’re in the process of preparing a will, know that this is usually the simplest type for your executor to deal with.
Holographic Wills
These are wills that have been signed and written by the testator in their own handwriting, rather than typed. For this type of will to be accepted, there must be a way of verifying that the handwriting belongs to the deceased. Someone familiar with their handwriting will need to affirm that they know this to be the testator’s handwriting. It will help if this type of will is also written in the presence of witnesses.
Statutory Wills
The final type recognized in California is the statutory will. This is a pre-printed form with blanks that the testator or a representative fill out. It’s simple to find forms online, but it is important that they be developed according to California’s laws. These must also be signed in front of at least two witnesses who are not beneficiaries, and if that has been done, it may not be necessary to do anything else to prove the validity of the will.
Paying Debts and Taxes From the Estate
All taxes and all legitimate debts must be paid before the estate can be distributed to the beneficiaries. If the estate does not have enough money to pay the debts, that’s a good idea to speak with a probate attorney quickly to discover which debts have priority. Certain assets are protected from this process, but not many, and taxes always take priority over other debts. In some cases, it may be necessary to sell assets to cover these debts.
Distributing Assets and Closing
Once all the debts have been paid, assets can be transferred to all the beneficiaries and the estate can be officially “closed.”
Contact a Probate Attorney for Help
Managing an estate going through probate is a time-consuming, complicated legal process. It must follow the law at every point, and failing to do so can land an executor in serious trouble. Always talk to an experienced probate lawyer to make sure that all steps are being followed correctly and there will be no issues with the courts. For help with your estate, whether you’re planning it now or are an executor trying to get through probate, contact Frisella Neilson, APC in San Diego now.
