The Personal Representative and Probate: Duties and Responsibilities

How Kavesh, Minor & Otis, Inc. Can Help You in Your Role as an Estate Executor

Serving as an estate executor can be a rewarding way to honor a loved one’s legacy. However, acting as an executor comes with many responsibilities. Aside from opening a probate claim in the right court, there are many steps to take before it comes time to distribute inheritances. You may be expected to take an inventory of the deceased person’s possessions, repay outstanding debts, and even defend the estate from legal contests. Any mistake or oversight—no matter how minor—could have far-reaching repercussions, both for heirs and yourself.

You do not have to take on the challenge of probate alone. The Law Firm of Kavesh, Minor & Otis, Inc. has spent decades helping Californians make sense of succession. Our lawyers discuss the role of executors in estate administration and how to minimize your risk.

Understanding an Executor’s Role in Probate

An executor, sometimes termed a “personal representative,” is an individual appointed to administer the estate of a deceased person. The duties of an executor are many and may include the following:

Opening a probate case

Serving notices of probate to interested parties

Marshalling and managing estate assets

Paying debts and defending the estate against legal challenges

Distributing inheritances to heirs and other beneficiaries

Almost anyone can serve as an estate executor, but the position is most often delegated to a surviving spouse, adult child, or trusted attorney.

California’s Legal Requirements for Estate Executors

Executors are typically chosen by a testator before death and cited in a last will and testament. However, if the decedent passed away without an estate plan, the court may appoint someone to the position.

Although some states have lengthy legal requirements for personal representatives—stipulating that they must live in-state or have a record free from any criminal convictions—the California Probate Code states that an executor must be:

At least 18 years of age

Of sound mind, meaning they have not been found incapacitated by a court

Even if an executor meets these requirements, they are not obliged or bound by law to accept the position and all the responsibilities that go with it. Some estates are too large or complex for any one person to oversee by themselves—especially if they have a full-time job or live in another part of the country.

An Overview of an Executor’s Core Responsibilities

Initiating Probate

If the decedent wrote and maintained a valid will, the executor must typically serve the appropriate court with notice of the deceased person’s death and their intent to open probate.

The executor, if in possession of the will, must:

Take a copy of the original will to the clerk of the local probate court.
File a Petition for Probate in the same county where the deceased person lived and resided at the time of their death.

Petitions for probate must be filed within 30 days of death.

Serving Notices to Heirs, Creditors, and Other Interested Parties

After the executor has filed a petition for probate, they must provide notice of proceedings to heirs, beneficiaries, and—eventually—the estate’s creditors.

The California Probate Code requires that notice be served in both of the following ways:

Completing Form DE-121, Notice to Petition to Administer Estate, and sending copies to all interested parties through first-class mail
Publishing a Notice of Petition to Administer Estate in a newspaper in general circulation in the city where the deceased person lived before their death—this notice should be published at least three times

Both forms of notice must be served in precise accordance with state and local law.

Marshalling, Inventorying, and Managing Estate Assets

Executors are responsible for protecting and preserving an estate. One of the most critical and time-consuming tasks that executors must complete is that of gathering estate assets. In California, this process is termed the “marshalling” of estate assets, and it involves the collection and inventorying of all possessions of value.

However, marshalling estate assets is rarely as simple as reading through a will and ensuring that every item mentioned therein can be found. Instead, executors are legally required to do a thorough search of the decedent’s home and other holdings. This may involve:

Searching through bookshelves, filing cabinets, and storage boxes
Accessing the deceased person’s emails and looking for evidence of any financial accounts or insurance policies not mentioned in their will or trust
Tracking down and opening any unlisted storage units or safe deposit boxes

After the decedent’s possessions, accounts, and holdings have been marshalled and inventoried, the executor must manage them with respect to the estate’s interests. This may mean overseeing business operations and income streams or re-investing stocks and other assets subject to market fluctuations.

Paying the Decedent’s Outstanding Debts

Creditors, much like heirs, have a legal right to be informed of probate proceedings. Executors must therefore:

Notify the decedent’s creditors
Give creditors sufficient time to make claims
Review, approve, or deny any creditor claims

Although creditors can lay claim to certain types of inheritable assets, not all creditor requests have equal merit. It falls to the executor to determine which claims should be paid and which should be discarded or disputed.

Distributing Inheritances

Once an estate’s assets have been marshalled, the executor must file a Petition for Final Distribution. Distribution typically involves:

An accounting of remaining estate assets
A report of administration, including all actions taken by the executor during administration
A final petition asking the court to approve the executor’s accounting and the final distribution of assets, as well as any further matters that may require court approval

If the petition is approved, the executor must pay any valid creditor claims before distributing inheritances.

The distribution of inheritances must be performed in accordance with the terms of the deceased person’s last will and testament. In the event of any uncertainty—such as ambiguous language or a beneficiary filing a lawsuit contesting the terms of the will—the executor must act in the estate’s best interests, which sometimes necessitates going to court and defending the estate from litigation.

Closing the Estate

The last step in estate administration is the filing of Form DE-295 for Ex Parte Petition for Final Discharge and Order, which informs the court that distribution has been completed and requests that the executor be relieved from their position and their obligations to the estate.

The Big Risk of Administering Probate Alone

Administering the estate of a parent, relative, or other loved one can be a great honor, but it is one often accompanied by no small measure of risk.

During estate administration, executors may encounter challenges, including the following:

Settling disputes with and among heirs
Assessing and making determinations on the validity of creditor claims
Collecting and managing a variety of different assets, some of which—like investments—may require in-depth financial knowledge or industry-specific expertise
Balancing their role as executor with the demands of employment, family life, and other personal obligations
Paying out of pocket to file fees, serve notices to interested parties, and travel between counties or states

Executors, like anyone else, can make mistakes. However, executors are—quite unlike others—bound by a legal concept termed “fiduciary duty.” Having a fiduciary duty means that you are required to always act in the best interests of the estate. Even small mistakes, like missing a filing deadline or failing to serve proper notice to an interested party, could constitute a breach of this duty. And when fiduciary duty is breached, even inadvertently, executors could be held personally liable for any resulting damages.

Do You Need The Help Of An Estate Planning And Probate Attorney In California?

If you need legal help with an estate or trust issue you should speak with an experienced estate planning or probate lawyer as soon as possible. Contact us online or call our office directly at 800.756.5596 to claim your space at one of our free, informative seminars. Your attendance will qualify you for a discount for our estate and trust administration services. Our estate planning firm proudly serves clients throughout California from our main office in Torrance, as well as those in Redondo Beach, Manhattan Beach, Hermosa Beach, Segundo, San Pedro, and Rancho Palos Verdes.

When You Want the Very Best for Your Loved Ones, Choose Us.

Experience and Expertise. Estate planning and post-death administration are all we do. Our attorneys have over 70 years of combined expertise in the field, and three of our attorneys have passed an additional Bar examination and peer review process to become State Bar Certified Specialists in Estate Planning, Trust and Probate Law. Two of our attorneys also have Master’s Degrees in Tax Law, giving us unique insight into how estate tax and income tax will affect your family’s inheritance.

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