Writing a will affords numerous benefits. A main one is that, by writing a will, the individual is able to specify who should inherit their property and assets on their death. But another advantage is being able to name the person who will shepherd the will through probate.
While it is possible to pick an attorney or accountant, it is more common for the individual to select a trusted family member or friend as their personal representative. This person is termed the executor of an estate. Think of the executor as the captain who steers a will through the sometimes rough seas of the probate process. Their job is to ensure that the decedent's last wishes are carried out.
The executor is responsible for the estate's distribution every step of the way, starting from the filing of the initial petition for probate to the final act of distributing assets to the heirs. California state law demands a lot of an executor, including unfailing loyalty to the beneficiaries, and provides for their compensation from the estate assets.
File Petition for Appointment
When the person writing a will, the testator, names an executor, the first duty of that person on the death of the testator, is to file a petition for probate. This document includes a copy of the will and the decedent's death certificate and must be filed with the California Superior Court in the county where the deceased person was living at the time of their death. The petition includes a request to be named executor. Generally, the court appoints the person named in the will as executor and issues the official documentation called Letters Testamentary or Letters of Administration that allow the executor to access the decedent's property.
Give Notice of Petition
When the petition for probate is filed with the court, this triggers the requirement for a hearing. The court clerk schedules a hearing that takes place some 30 days later. The notice of hearing must be published a minimum of three times in a local newspaper. The executor must make this happen, and also mail a copy of the notice to everyone named in the will along with the legal heirs (close family members) of the deceased. Under California law, the executor must also provide notice to potential creditors.
Prove the Will
Did the testator actually sign the will? Did they know what they were doing at the time? These are the questions behind the need to prove the will. In some states, the witnesses to the will signing must come to the probate court to testify or use special language in a notary affidavit to make the will self-proving. This is not necessary in California. As long as the will is witnessed and signed by two competent adults who are not beneficiaries, it is not necessary to prove the will. If that is not the case, the executor must prove the will.
The executor must inventory all the property that belongs to the estate including bank accounts, cash, personal property, real estate and securities such as stock certificates. They must also collect any debts owed to the deceased -- business debts, for example, or a final paycheck.
Marshall Probate Assets to Begin Estate Administration
The primary job of the executor is to distribute the decedent's estate assets to beneficiaries named in the will. In order to accomplish this, they must locate and take possession of all of the deceased’s property and probate assets. The executor may have some of the property appraised and must ultimately prepare an inventory of the estate property.
Transfer Title to Non-probate Assets of the Estate
Some assets that belonged to the decedent in life may not be subject to probate. These are called non-probate assets. For example, some bank or brokerage accounts, life insurance policies and assets in living trusts that have named beneficiaries need not be probated. That means that the decedent, while alive, specified in writing who was to receive the asset when they died.
Other assets, like real estate, may be held in joint tenancy or community property with right of survivorship. That real estate becomes the property of the remaining individual on the title upon the death of the other. If the title of one of these accounts, or physical assets like real property or motor vehicles, needs to be transferred into someone else’s name, the executor must arrange that.
Locate and Pay Creditors
While the executor's primary duty is to the beneficiaries, creditors must be paid before any probate property can be distributed. Creditors in California have four months to make claims for outstanding debts in probate court, but smaller bills like the decedent's outstanding electricity or phone bills are often paid directly by the executor.
Prepare Estate Tax Returns
The federal estate tax must also be paid if the estate qualifies, as well as income taxes if the estate earns over $600 during the tax year. The executor completes IRS Form 706 and IRS Form 1041 if estate income tax is due. California does not impose estate taxes and no filing is required. If the estate does not have sufficient funds to pay credits and taxes, the executor must sell estate property to cover the debts.
Close the Estate
The final job of an executor in California is to take actions required to close the estate. The executor prepares a written accounting of all actions taken, which is included in a petition to the court together with the proposed distribution of the estate. The petition must include a statement of fees paid or to be paid to the executor and the estate attorney, if applicable.
If the court finds no issues with the accounting, and there are no objections, it approves the petition and issues an order concluding the estate. At that time, the executive can distribute the remaining assets. If there are not enough assets remaining to fulfill the bequests contained in the will, the court apportions the remainder of the estate to beneficiaries.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.