“You can’t take it with you when you go.” It’s a cliche, yes, but it is also a truth that matters. If someone dies with a valid will, the probate court will probably appoint the executor named in the will to manage the deceased’s possessions. The role of the executor is not easy, however.
Who Is the Executor?
The executor is the person who makes sure that the distribution of your estate after you die complies with your wishes, as expressed in your last will and testament, as well as California law. The “estate” is everything that the deceased owned at the time of death, both tangible and intangible, minus anything that was removed from the estate during the deceased’s lifetime, such as the assets of a living trust.
What Are the Responsibilities of an Executor of an Estate?
The executor of an estate has duties that can result in significant liability if you fail to perform them properly. Following is a description of some of these duties.
Make a Copy of the Will and File It
Make a copy of the will and file the original with the probate court. Remember that if the probate court determines that the will is invalid, your nomination in the will is also invalid. In this case, the court will declare the deceased intestate, and it will name an administrator to distribute the deceased’s assets according to California intestate succession law.
Obtain the Death Certificate
Soon after the deceased is declared dead by a medical professional, local authorities will issue a death certificate. Normally, the funeral home will obtain the death certificate for you. If it doesn’t, you can obtain a California Death Certificate from the state Department of Public Health.
Notify Banks and Government Agencies About Death
Certain organizations will need to know about the decedent’s death. The most common parties to notify are the Social Security Administration, the banks that administer the decedent’s bank accounts, and life insurance companies.
Make a Decision on What Kind of Probate Is Necessary
You need to determine what type of probate you need to petition the court for, if any.
Some alternatives include:
- A spousal property petition for property the spouse will inherit.
- A small estate affidavit. If the estate is small enough, you can use this to avoid a court appearance altogether.
- Simplified probate procedures, if the estate is small enough; and
- Formal probate.
You also need to petition the court to name you as executor. You are likely to need a lawyer for this, especially if the decedent did not name you in the will (if the named executor is deceased, for example).
Set Up Bank Accounts in the Name of the Estate
You use estate bank accounts to collect debts that third parties owe to the estate and to pay debts that the estate owes to creditors.
Inventory Estate Assets
You must create a comprehensive list of estate assets and liabilities, and you must file an Inventory and Appraisal with the probate court. You must also maintain estate property in good condition until it is distributed or sold.
Represent the Estate in Court If Necessary
You must defend the estate in court (through lawyers) if someone sues the estate. An estate creditor might file a claim against the estate, or someone might contest the will. In any of these cases, you represent the estate, not any of the beneficiaries.
Pay Debts and Taxes, and Collect Assets
You must set up a bank account for the estate. You must determine the estate’s accounts receivable and collect them, and you must pay the estate’s debts. You must also file a tax return for the estate and pay any taxes due out of estate funds. You might have to sell some estate assets to pay its debts.
Distribute Assets
Among the executors of an estate’s responsibilities, distributing assets is perhaps the most important. You must distribute any remaining assets to estate beneficiaries according to the will and within the bounds of California law.
Now Is the Time to Begin
At Barr & Douds, we can help you create an estate plan that is individualized and tailor-made to reflect your needs and desires so that your beneficiaries will not face any nasty surprises after you die. Alternatively, if you have been named executor of an estate, we can help you fulfill your responsibilities.
Contact Barr & Douds today, either online or by telephone at (925) 660-7544.
