If you have recently been appointed as the personal representative of an estate in California or if you are drafting your will now and trying to decide whom to choose to administer your estate, this guide is for you.

What is Probate?

Probate is a court procedure by which a decedent’s estate is gathered, assessed, and distributed to any valid creditors left behind and to the beneficiaries of the deceased person’s estate.

Not all assets will be considered a part of the decedent’s estate for the purposes of probate. Financial assets with a beneficiary designation will pass outside of probate to the named beneficiary. A properly set up and funded trust will also keep assets out of probate, and they can be distributed immediately and without Court approval in accordance with the trust terms and instructions. Remaining assets will be distributed in accordance with a valid will through the probate process. If there is no valid will, the estate is considered “intestate” and will be transferred to heirs in accordance with California laws of intestacy.

How Long Does Probate Take?

The average probate administration can take between six and eighteen months, depending on the complexity of the estate. In California, there is a “simplified procedure” for estates that meet certain qualifications (between $20,000 and $150,000 in assets, among other requirements).

What is a Personal Representative?

You may have heard the term “executor” used to describe the person who administers an estate. In the State of California, this person is called the “personal representative.”

The personal representative is responsible for administering the will on behalf of the decedent in accordance with the terms of the will. Throughout the probate process, the personal representative is held legally responsible for protecting the decedent’s assets (including his or her home, savings, personal property, and any other probatable asset). This legal responsibility, or fiduciary duty, requires that the personal representative must at all times act and make decisions in the best interest of the estate.

Although the personal representative is named in a deceased person’s will, the role is actually conferred by the Probate Department of the Superior Court. A personal representative is an officer of the Court, and the Court appoints this person and holds he or she accountable. Personal representative duties do not commence until the Court Clerk issues “Letters Testamentary” to the personal representative.

If the personal representative designated in the will is unwilling or unable to serve, a successor representative can step into the role or the Court can designate a replacement.

Who is Qualified to be a Personal Representative in the State of California?

A personal representative may be an individual (usually a trusted friend or relative), bank, or trust company. To be qualified as a personal representative, this person (or entity) must meet the following requirements:

–       Over the age of 18

–       Not disqualified by the Court as unsuitable.

What Does a Personal Representative Do throughout the Probate Process?

Serving as a personal representative can be a lot of pressure (especially if the will is contentious, assets are difficult to locate, heirs are anxious to receive their inheritances, or there are a lot of creditors seeking to be paid out of the estate), and there is a lot to do. The best way to get through the process is to remain organized and follow each step of the process methodically.

In order to fulfill his or her administrative duties under California law, the personal representative must:

  1. Obtain the decedent’s Death Certificate. The personal representative is often responsible for the funeral and/or burial arrangements. The funeral home can issue as many death certificates as are needed.
  2. Find estate planning and other important documents. In addition to the will, the personal representative should also attempt to find paperwork related to insurance, investment accounts, funeral plans, bank accounts, real property, valuables (and documents that verify the value of antiques and collectibles), business interests, and any other documents that can help value the estate.
  3. If the decedent had a will, the personal representative needs to locate and submit it to the Court within 30 days of the individual’s death. The personal representative named in the will is responsible for filing a petition for probate with the Superior Court.
  4. Identify and properly value the decedent’s probate assets. Within four months of being appointed, the personal representative must file with the Court an inventory of the property to be adminstered in the probate proceedings. This inventory should include all real property, investments, bank accounts, personal property, and any other probatable assets that comprise the decedent’s estate. Sometimes, the deceased person will leave the personal representative a list of assets and where to find them. However, it is not always this easy.

The documents listed above, as well as any other information regarding assets, may be found in a file cabinet or safe deposit box. If there is no clear place where documents are held, the personal representative should check with the attorney who drafted the decedent’s will. He or she may have a record of assets on file. Once a list has been found or created, the personal representative will need to determine the total value of the estate.

  1. In California, the personal representative has a duty notify all known or reasonably ascertainable creditors to whom the decedent was indebted. Notice should be given by completing the Notice of Adminsitration to Creditors form and mailing it to each known creditor, within the later of
  • Four months of the date the personal representative was appointed, or
  • Thirty days after the personal representative was made aware of the creditor.
  1. During the period when creditors are making claims against the estate, the personal representative should spend time valuing, consolidating, and liquidating assets to allow for distribution. The personal representative is responsible for hiring any professionals needed to properly administer the estate (including attorneys, CPAs, appraisers, and investment advisors).
  2. Defend the estate from improper claims and pay all valid claims. The estate is responsible for paying the valid creditor claims of the deceased person. Claims should either be accepted or rejected within thirty days of receiving each claim. If the amount of all valid claims exceeds the total value of the estate assets, the heirs are not responsible for covering the balance. The Court will prioritize the creditors if there are not enough assets to cover all valid creditor claims. Absolutely no distributions should be made to anyone before the Court determines that all creditors have been paid.
  3. File any required tax returns and pay any outstanding taxes due.
  4. Pay the expenses associated with administering the estate.
  5. Distribute all remaining assets in accordance with the will.

When Does the Probate Process End?

After all valid claims have been paid, the personal representative can submit a final account and petition for distribution to the probate court. This petition will be set for a hearing, and the Court will issue an order approving the final distribution to any heirs.

Can a Personal Representative Be Compensated for His or Her Work?

In the State of California, the personal representative is entitled to compensation from the estate for his or her services. By statute, personal representatives can earn a fee of 2-4% of the probatable estate. As the size of the estate increases, the percentage decreases. The personal representative is also entitled to reimbursement for reasonable expenses such as the cost of death certificates, travel costs, engaging professional services, etc. Any fees paid to the personal representative must be approved by the Court.

Can a Personal Representative Hire Professionals to Help?

It is highly recommended that personal representatives do not attempt to navigate this process alone. A team of professionals with the proper experience can make the probate process a much smoother and more manageable one and can help avoid costly mistakes. An experienced probate attorney is highly recommended and will guide the personal representative through the legal steps of the probate process. He or she can also serve a valuable communications role when dealing with family members and beneficiaries.

A tax professional will likely be necessary to file any final tax returns and assess tax liabilities that may arise from the inherited assets.

Appraisers will also likely be necessary to determine the fair market value on real estate, antiques, collectibles, and any other assets of undetermined value.

Ask a California Probate Attorney for Assistance

If you are named a personal representative in a California will, or have questions about serving in such capacity, you should seek the counsel of an experienced probate attorney, like the ones at Leisinger Law, for assistance. Even in the simplest of probate estate matters, many legal issues can arise. To learn more about administering a probate estate in California, give us a call at our Covina office, at (626) 331-1515, to schedule an appointment with one of our experienced probate attorneys today!