Probate is a complex and often misunderstood process. Probate is the process of settling a deceased person’s estate.
During the probate process, a personal representative of the estate is named who is empowered to act on behalf of the estate, the deceased’s creditors are paid, and the remaining assets are passed to heirs. If the deceased had a Will at the time of death, then the probate court will take the deceased’s wished into account during the probate process. If the deceased did not have a Will, then the rules of intestacy are followed.
The personal representative (also called executor or administrator) plays an key role. The personal representative has right to control the estate and make all of the decisions. The personal representative also has numerous responsibilities towards those who may benefit from the estate, whether creditor or heir, as well as to the probate court.
Once appointed, the duties of a personal representative are many. Among the most common duties are the following:
- Filing court documents. Throughout the probate process, starting with the request for appointment as the personal representative to the final order for distribution, numerous court documents need to be filed. Filing the correct court documents, at the correct time, fully and completely filled out will ensure the process moves smoothly.
- Marshaling the estate assets. This will include taking control of any assets owned by the estate, such as real estate, bank accounts, stocks and securities, and any other interests. It may even include the right to file a lawsuit on behalf of the deceased.
- Notifying creditors and heirs. At several points during the probate process, creditors and heirs are entitled to receive notification and information about the estate. Giving timely notification will avoid unnecessary delays, if not avoid unnecessary disputes.
- File final tax returns. The deceased’s final tax returns need to be filed. If a refund is owed, then the personal representative needs to collect the money. If taxes are owed, then the personal representative needs to pay the taxes from the estate assets.
- Distribution of assets. At the end of the probate, after the estate’s expenses and creditors have been paid, the personal representative is responsible to make sure the assets are distributed to the heirs according to the deceased’s Will or the intestacy law.
In California, the complete probate process can easily last for a year or longer, even with the easiest cases. That time can be increased by conflicts involving the estate, missteps in administration of the estate, or by failing to follow all of the probate requirements.
Whenever acting as the personal representative of an estate, having the support of an experience probate attorney is essential. The attorney’s role is to guide you through the process as quickly and easily as possible.