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The beginning steps
It is a good idea to start the probate process as quickly as possible after the death of the decedent. Obviously, funeral and burial arrangements, and other family matters need to be addressed first. Once these personal matters have been taken care of, it's important to get the probate process started. The process begins by hiring a competent attorney who can handle the probate for you, leaving you with as little responsibility as possible in regards to the decedent's estate. I pride myself on meeting with you to determine what needs to be done, efficiently filing all court documents, and moving the probate process along toward the earliest possible conclusion.
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General Purpose of Probate
In general, all steps in the administration of the estate will be directed toward three goals: collection and management of assets, payment of debts and taxes, and distribution of the balance of the assets as provided in the will. While it is the attorney's job to take care of preparing all legal documents, conducting all legal filings, making all court appearances, and in general move the probate toward a conclusion; it is the executor's job to make sure all assets are found, a list of creditors is made, and that proper disbursements are eventually made. If you end up as executor, you are limited in the duties you can conduct without court approval. It is thus important to communicate with your attorney before doing anything related to the decedent's property or creditors. If appropriate we will ask the court to grant you authority to administer the estate under the Independent Administration of Estates Act.
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Document intensive process
The probate process if full of standardized forms and other hand drafted legal pleadings that need to be filed with the court and mailed out to various interested parties. From time to time, throughout the process, documents are submitted to the probate court and reviewed by court representatives or the probate Judge. If all materials are in order as required under the California Probate Code and local court rules, the court order will be prepared and submitted to the judge for signature without the need for a personal appearance by myself as attorney or you as the representative. If any document is missing or requires additional information to support the petition, the court clerk will notify our office before the hearing to enable us to submit in advance the necessary information. In most circumstances, this will eliminate the need for a personal appearance by us or by you, until the final hearing.
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Collection and management of assets
After you have been appointed executor of the estate, you are to take possession of all the decedent's property. We will help you do this and will advise you on the management of estate assets. Securities, jewelry, deeds to real property, bank statements, and other assets must be managed very carefully by the representative. This is necessary because we will prepare an inventory and appraisement of the estate's assets, which will require a complete list of all the decedent's assets. Some assets do not go through the probate process, but I will still help you administer them. For example, life insurance, joint tenancy property and revocable trusts, generally do not go through the probate process. You should prepare a list of all the decedent's life insurance policies. We should also know about any beneficial interest they had in anyone else's life insurance policies. After we have examined those policies, we will be available to help you or any beneficiary complete and file the form.
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Handling debts
When the petition to admit the will is submitted to the court, a concurrent notice to creditors is published in the manner required by law. The notice must be published even if there are no known creditors. Creditors must present their claims within four months after the issuance of letters testamentary appointing you to serve as executor. (This issuance of letters occurs after the notice is published, so there is a date certain for this four-month period.) Any claims not presented are forever barred from collection. This includes claims you yourself may have, e.g., any sums you may have advanced to pay last-illness or funeral expenses. Claims should be made on special forms and must be approved by both you and the court before you can make payment. Accordingly, all claims should pass through our hands. For your own protection, you should not pay any claims without consulting us. We will be happy to provide blank forms to you or any creditors who need them.
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Handling taxes
California has no inheritance tax for any resident who died after June 8, 1982, except for the "pick-up" tax associated with the statutory allowable credit for state death taxes under Internal Revenue Code 2011. Depending on the gross value of the estate, it may be necessary to file a federal estate tax return. The federal estate tax return and the tax are due nine months after death. The estate has the option to value assets as of the date of death, or under certain circumstances as of six months after death. Before the date on which the tax is due we will make a rough calculation of the federal estate tax to enable us to provide you with an outline of the estate's cash needs for death taxes. A general outline of cash needs for all administration expenses will be made as soon as possible. It will be necessary to prepare and file federal and state income tax returns for the decedent for the period ending with the date of death. You may also be required to file income tax returns for
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Distributing the estate
At any time two months or more after the first issuance of letters testamentary, it is possible to petition the court for a partial distribution of estate assets. If the interests of the beneficiaries and the creditors are adequately protected, the court will ordinarily grant such a petition. A preliminary distribution can cause adverse estate tax results if a distribution occurs within the first six months after death and we desire to value the assets on the alternate valuation date (discussed above). Distribution of any portion of the residuary estate (but not specific gifts) will have income tax consequences, because such a distribution shifts taxable income from the estate to the distributees. Before the expiration of the two-month period we should confer about the desirability of making such a distribution. Final distribution of an estate can probably be made soon after the federal estate tax return is filed (usually nine months after the date of death). When all debts and t
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Commission and fees
Compensation for Ordinary Services. Under California Probate Code 901, you may receive commissions on the amount of the estate accounted for by you. You may either accept or waive the commissions for your services as executor. If you accept your commissions, the estate will be entitled to deduct them in computing the taxable estate for death taxes or, alternatively, in determining the taxable income of the estate. You will also be required to report these commissions as income. On the other hand, if you waive your entitlement to commissions, they will neither be paid and taxed to you nor deductible by the estate. Later we will give you an estimate of the amount of your fees and commissions for ordinary services. You are entitled to further allowances as the court may consider just and reasonable for extraordinary services, such as sales or mortgages of real or personal property; contested or litigated claims against the estate; preparation of the estate, income, sales, or other tax r
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Extraordinary Fees
Some of our services are covered by the fee for ordinary services and some by an additional fee or fee for extraordinary services. For our ordinary services, we as your attorneys are entitled to compensation at the same rate as your ordinary compensation. For any extraordinary services, the Probate Code provides that the court may set whatever fee it considers proper. You will be interested in knowing which of our services are extraordinary and which are ordinary, and the following information may be of some help. Services that the court considers extraordinary for the executor are considered extraordinary for the attorney as well. In addition to those items, we frequently find that a decedent owned property in another state, which usually requires extensive correspondence on our part. If there is an ancillary (second) administration in that state, we must render services not contemplated by the fee schedule to assist and coordinate probate proceedings. Examples of extraordinary servic
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Conclusion
We hope that this general outline of your duties and the major events that will take place during administration of the estate will be useful. Although matters may arise that we have not mentioned, we want to assure you that we will try to minimize any inconvenience to you. Conversely, many of the matters mentioned above may not arise in your administration. If you have any questions concerning probate in general or if you wish further details about any of the matters we have mentioned, please do not hesitate to call to set up an appointment to discuss.
