Admin of Estate
Probate Attorneys Serving Southern California
ADMINISTRATION OF DECEDENT’S ESTATE
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Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the “decedent”) to his or her beneficiaries. Below is a brief summary of the necessary steps to initiate the administration of a decedent’s estate:
(1) Determine the Executor/Administrator of the Decedent’s Estate
If there is a Will, then the custodian of the will (the person who has the will at the time of the person’s death) MUST, within 30 days of the person’s death:
- Take the original will to the probate court clerk’s office within 30 days.
- Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
If the custodian does not do these things, he or she can be sued for damages caused.
If there is no will and a court case is needed, the person who wants to be the administrator must file a Petition for Letters of Administration. The administrator is usually the spouse, domestic partner, or close relative of the dead person. The probate court will appoint an administrator to manage the estate during the probate process.
(2) File the Petition for Probate.
Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (Form DE-111) and other related forms. The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
The Petition for Probate has different options, like:
- Petition for Probate of Will and for Letters Testamentary
- Petition for Probate of Will and for Letters of Administration with Will Annexed
- Petition for Letters of Administration
In addition, there are two types of authority you can ask for in your probate case under the California Independent Administration of Estates Act (“IAEA”), i.e., “full authority” or “limited authority.”
“Full authority” basically allows the Executor/Administrator to take many specific actions without prior Court approval. However, that’s not to say they won’t be subject to later questioning by the Court or a beneficiary, but they can take care of business at a much quicker pace without delay. This includes selling personal property, selling stocks, and even selling real estate. In many instances, the Executor/Administrator is required to send a notice of proposed action at least 15 days prior to taking the action. That 15-day notice gives the beneficiaries the opportunity to object if they don’t think it’s a good decision.
Full authority is of particular importance when there is real estate that needs to be sold. This is because limited authority requires Court approval of the sale and going to Court for confirmation often results in significant delays that may result in losing the buyer. There are a few different ways for the Executor/Administrator to get full authority and different Judges rule differently but in generally the simplest way to get full authority is for the Executor/Administrator to post a surety bond (similar to insurance) or have all the heirs waive the requirement of a bond.
If there is no real estate that needs to be sold, then requesting for limited authority would suffice. There are no practical limitations for other assets and most Courts will issue limited authority without a bond or with a minimal bond amount by requiring all assets be put into court blocked accounts to prevent the Executor/Administrator from taking complete control of any cash.
(3) Administer the Probate Court Case
- The probate clerk sets a hearing date.
- The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any other person who is interested in the court case may file a Request for Special Notice (Form DE-154), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
- The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
- The petitioner must arrange for notice to be published in a newspaper of general circulation.
- A court probate examiner reviews the case before the hearing to see if it was done correctly.
- Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
- The personal representative gathers up the assets and prepares an Inventory and Appraisal to be filed. The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county. (Get more information on probate referees.)
- The personal representative provides formal notice to creditors with the Notice of Administration to Creditors and pays the debts.
- A final personal income tax return is prepared for the person who died.
- The probate court figures out who gets what property.
- A Report of Sale and Petition for Order Confirming Sale of Real Property is filed with the court so that sales of real property are confirmed by the court.
- If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
- The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
- After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.
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