Los Angeles California Administrators and executors often need an executor course or an executor checklist of tips about probate and how to manage estate assets or what they should do in probate, as do those involved in ancillary probate in California. This is a short list to help you but covers only the basics of the executor’s duties and responsibilities in California. This is a mini probate executor course to help you avoid some of the common mistakes by executors in California. We offer an extensive probate executor class at our office for those who are not represented by counsel. The duties are the same for executors and probate administrators in California.
When should I file a Petition for Probate if I am named as the executor of a will?
Because the estate must be preserved, a California executor of an estate must not delay filing the petition for probate and must claim the position of the executor within 30 days from the date of death. If you have been named and do not file the proper paperwork in court, under Probate Code 8001 can effectively lose your position.
California Probate Code 8001 provides:
Unless good cause for delay is shown, if a person named in a will as executor fails to petition the court for administration of the estate within 30 days after the person has knowledge of the death of the decedent and that the person is named as executor, the person may be held to have waived the right to appointment as personal representative.
An Executor Must Gather all Estate Assets and Collect The Debts Owed To the Decedent.
The executor (Executor and Administrator) has the right to and must take possession or control of, all the property of the decedent to be administered in the decedent’s estate and must collect all debts due to the decedent or the estate. Giving notices to claimants is very important in probate. Creditors of estates have to be given notice and have a limited amount of time to file creditor’s claims in California.
Creditor Claims in probate:
A Creditor claim has to be supported by the affidavit of the creditor or the person acting on behalf of the creditor which has to contain certain statements:
(1) The claim is a just claim.
(2) If the claim is due, the facts supporting the claim, the amount of the claim, and that all payments on and offsets to the claim have been credited.
(3) If the claim is not due or contingent, or the amount is not yet ascertainable, the facts supporting the claim.
(4) If the affidavit is made by a person other than the creditor, the reason it is not made by the creditor.
(b) The personal representative may require satisfactory proof to be produced to support the claim. If a copy is provided, the copy shall be attached to the claim.
Many creditor mist this requirement and have claims that get rejected. The personal representative should check each claim and the court’s case summary to make sure all claims are addressed.
A California Executor Must Collect Rent.
The executor must and is entitled to receive the rents, issues, and profits from the real and personal property in the estate until the estate is distributed. It is a common mistake by executors to let family members live in the decedent’s home without rent. Because the executor must make the assets of the estate income-producing, if this situation exists, you must charge rent, or file a petition for instructions in the probate court.
A Los Angeles California Executor Must Prepare Tax Returns and Pay Taxes:
There are a variety of taxes which the executor must pay. For examples, Decedent’s last return, income and Estate, local and property taxes
The executor must pay taxes on time, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in his or her possession. This includes property tax, income tax, payroll tax, and estate tax. Make a list, and see a CPA as soon as you become an executor. If you are not sure whether the decedent filed returns, look for income information such as K1s or old tax returns in the decedent’s home to make this determination.
California Executors and Administrators Can Store Estate Assets With Some Persons, But Must Be Cautious!
Can an Ancillary Probate be started in California?
Yes, when an out of state resident dies and has properties in California, an Ancillary Probate or Ancillary Estate Administration can b started in California to handle the California assets. The executor or administrator of the out-of-state decedent applies to the Court here in California, asking the Court to direct its distributions to the ancillary executor. An ancillary executor is given priority in California.
Do you get paid as an executor, if you collected an asset, but have to give the property back?
The court may allow the executor reasonable compensation for services rendered in connection with the duties specified in this section as to property later determined not to be part of the estate of the decedent if the court makes one of the following findings:
The executor’s services were of benefit to the estate. If the court makes this finding, the compensation and the expenses and costs of litigation, including attorney’s fees of the attorney hired by the executor to handle the matter, are a proper expense of administration.
The executor’s services were essential to preserve, protect, and maintain the property. If the court makes this finding, the court must award compensation and the expenses and costs of litigation, including attorney’s fees of the attorney hired by the executor to handle the matter, as an expense deductible from the rents, issues, and profits received by the executor, or, if these are insufficient, as a lien against the property.
When acting as an executor, do not pay yourself as executor without a court order.
The Executor must invest the cash in interest-bearing accounts.
The executor must keep all cash in his or her possession invested in interest-bearing accounts or other investments authorized by law. The above does not apply to the amount of cash that is reasonably necessary for the orderly administration of the estate, such as money used to pay the mortgage and tax.
The Executor must recover the property of the estate.
The heirs or devisees may themselves, or jointly with the executor, maintain an action for possession of property or to quiet title to property against any person except the executor.
If the estate is opened here, but there are assets outside of California, you will need to open an ancillary probate in the state to collect out of state properties or sell them there.
Real property or tangible personal property can be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the executor, possession of the property by the executor will be necessary for purposes of administration. The person holding the property must surrender it to the executor on request by the executor.
If you are an executor, do not store the decedent’s personal effects in your own home. This can create a misimpression that you took the assets for yourself.
What if the executor accidentally takes over someone else’s property?
An executor who in good faith takes into possession real or personal property, and reasonably believes that the property is part of the estate of the decedent, is not:
(1) Criminally liable for so doing.
(2) Civilly liable to any person for so doing.
The Executor must find out whose property it is that is being marshalled.
The executor must make reasonable efforts to determine the true nature of, and title to, the property taken into possession.
The Executor rights with respect to Stocks are broad, and You Must Collect the Stocks for the Estate.
With respect to a share of stock of a domestic or foreign corporation held in the estate, or a membership in a nonprofit corporation held in the estate, or other property held in the estate, an executor may do any one or more of the following:
(a) Vote in person, and give proxies to exercise, any voting rights with respect to the share, membership, or other property.
(b) Waive notice of a meeting or give consent to the holding of a meeting.
(c) Authorize, ratify, approve, or confirm any action which could be taken by shareholders, members, or property owners.
The Executor must adequately insure the property of the estate.
The executor may insure the property of the estate against damage or loss and may insure himself or herself against liability to third persons.
If you fail to carry insurance on the estate property and there is a fire or other loss on the property, you as executor will be held responsible. Also, be sure to carry liability insurance. Adequate insurance should be discussed with an insurance agent familiar with probate.
The Estate Executor must not personally profit from the estate assets.
There is a difference in acting as a beneficiary and acting as an executor. Executors are not allowed to personally profit from the estate increases unless the will specifically so allows.
Don’t even think about buying the estate assets and then selling it for more. This is not allowed without a prior court order and can land you in much trouble.
You also must NOT commingle assets of the estate with your own assets.
Some types of losses are not the responsibility of the Executor.
The Executor is not accountable for losses by the decrease or destruction without his or her fault, of any part of the estate. This means market value fluctuation losses, which were not in his control, or could not be reasonably prevented. An executor should obtain advice from a financial advisor regarding prudent investment of estate assets.
Talk to us about executor training. Contact: Mina N. Sirkin Probate Specialist in Los Angeles has been licensed to practice law in California since 1992. Ms. Sirkin is Board Certified as a specialist in probate, estate planning and trust law in California, and a media expert in estates. To learn more about your role as an executor, contact us by Email at: [email protected] or by Telephone at 818.340.4479.
