The loss of a loved one is an emotional and stressful time, and the experienced probate attorneys at Cottle Keen Lopiccolo & Heyde, LLP can help relieve some of that stress by assisting you with the probate process and ensuring that your loved one’s wishes are known and respected.
What is Probate?
Probate is a legal process wherein the court oversees the management and distribution of a decedent’s estate. Probate is initiated when a petitioner files with the court for probate.
What is the Executor of an Estate?
Any competent adult can petition the court to initiate a probate and request letters testamentary naming an executor of the estate. The executor is the person charged with administering the estate. The executor may be afforded independent administrative powers. This means that the executor can make many decisions regarding the estate and disposition of assets without prior approval by the court. As such, the executor has significant authority over the management of a decedent’s estate.
If a person dies having created a will, an executor will probably be named in that will, although the court does not have to appoint that person as executor. If a person dies intestate, meaning without a valid will, then the court can appoint any competent adult as executor. It is therefore important to (1) determine wither your loved one had a will, and (2) file a petition for probate, or respond to a petition filed by another, if you wish to have any input in who is named executor.
How Does Probate Work?
Once letters testamentary are issued, the appointed executor must marshal the assets of the estate, and keep them safe. For example, the decedent’s house must be insured. The executor must maintain the house, and keep it, as well as all other assets of the estate, safe from damage or theft. The executor must prepare and file the decedent’s and the estate’s tax returns, and must pay outstanding obligations of both the decedent and the estate.
The executor will also develop a plan to distribute the assets of the estate, and once approved by the court, will be responsible for disbursing the assets and closing the estate.
What Rights Do Creditors of the Estate Have?
An executor is responsible for ensuring that all known debts of the decedent and the estate are addressed. However, if the estate is of insufficient value to pay all such debts, then state law specifies the order in which claims are paid.
Creditors will typically have four months to present their claims to the estate. If you have lent money to the decedent or to the estate, it is important that you file a claim in probate within the time period prescribed, or else you may lose your rights to repayment. It is important to consult with the probate attorneys at Cottle Keen Lopiccolo & Heyde, LLP soon after the death of a loved one so that you do not lose any rights you might have.
Is a Probate Required?
No, not always. A small estate could bypass probate. A decedent’s estate held in a living trust might not be required to go through the probate process. Likewise, assets held in joint tenancy, or as marital property, may not require a probate.
Is it Best to Avoid Probate?
There are many reasons why a probate may be unnecessary. For example, an uncontested trust could avoid the possible delay and cost which may be encountered when probating an estate. However, it is not always wise to administer an estate outside of probate. Examples of common issues which might best be resolved through probate include:
There is a question as to who the heirs are, or in what proportion they are to inherit
- Are there children from a previous relationship?
- Was there an intent to disinherit some heirs?
- Did the decedent amend the will or trust affecting the identity or the shares of heirs?
There is a dispute as to who should be charged with administering an estate
- Was there no named executor/trustee?
- Is the named executor/trustee unable or unwilling to serve?
- Is the named or proposed executor/trustee unqualified to act?
There is uncertainty as to the validity of the will or trust
- Was the will or trust truly created by the decedent?
- Have there been amendments or revocations?
- Was the decedent unduly influenced or coerced when drafting testamentary documents?
- Does the will or trust violate state law?
- Is the will or trust defective?
There is a claim that the estate’s administrator has mismanaged the estate
- Has the administrator acted incompetently?
- Has the administrator acted fraudulently or negligently?
- Has the administrator acted with partiality?
Heirs challenge the administrator’s proposal for disposition of the estate’s assets
- Does the proposed disposition adhere to the decedent’s wishes?
- Are there multiple parties who want the same specific assets such as an heirloom?
- Is there disagreement as to whether to distribute assets in-kind, or to liquidate assets?
When faced with such dilemmas, it is important to consult with experienced probate attorneys so that you understand your rights and ensure you are protected throughout this process
What is a Fiduciary Duty?
Fiduciary duty is that duty owed by an executor or trustee to act fairly, honestly, and in good faith when administering an estate. The executor/trustee cannot put his/her personal interests ahead of others. The fiduciary must act with prudence and diligence while executing his/her duties. Breach of fiduciary duty can lead to substantial loss to an estate or individual.
If you are serving as an estate’s executor, or if you are the beneficiary of an estate, it is important to consult with an experienced probate attorney to understand your rights, duties and responsibilities, and to ensure the wishes of the decedent are recognized and fulfilled.
We handle the following areas specific to Probate:
- Processing Estates
- Requesting an Accounting
- Trust and Probate Disputes
- Dispersing Trust Assets
- Challenging a Will
Contact Cottle Keen Lopiccolo & Heyde, LLP, your preeminent Orange County probate attorneys by phone at (714) 997-7870 to set up a consultation to learn about your rights and responsibilities as executor or beneficiary, and to ensure that the estate is administered fairly and efficiently.