In situations where someone dies and leaves a Will, there is usually a person named in the will as “executor” to handle the decedent’s property and final wishes. That person will usually be formally appointed by the probate court as the Personal Representative for the estate.
However, if there is no Will, or if the Will fails to name an executor, or the person named is unable or unwilling to be executor, then the probate court will appoint someone called an “administrator” to handle the process and they will act as the Personal Representative in the case.
In either case, the person selected has no authority to act as Personal Representative until s/he is appointed by the court and formal “Letters Testamentary” or “Letters of Authorization” are issued by the Court Clerk.
What are My Obligations as the Personal Representative in a Probate Case?
Once appointed by the probate court, the Personal Representative is responsible for managing the estate and following probate rules and procedures and must complete the following tasks:
- Determine if there are any estate assets to go through Probate or if any estate assets can avoid Probate all together (See How to Avoid Probate in California);
- Locate and inventory the estate assets and manage them during the probate process. This process could take up to a year or longer and may involve deciding whether to sell real estate or securities owned by the decedent (See Understanding Basic Probate Procedures);
- Collect payments that are owed to the estate, including rents, interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits);
- Establish and manage a checking account to hold money that is owed to the estate;
- Ascertain who is entitled to receive money or property under the will. If there is no will, the Personal Representative will be required to follow state law (probate code sections 6400 – 6414 , called “intestate succession” statutes) to determine which of the decedent’s heirs are entitled to property of the estate;
- Value or appraise the estate’s assets;
- Provide formal legal notice to creditors and potential creditors of the probate case and the deadlines for creditors to file claims, according to state law;
- Investigate the validity of all claims against the estate;
- Pay funeral bills, outstanding debts, and valid claims;
- Apply estate funds to pay outstanding and continuing expenses (e.g. mortgage payments, utility bills and homeowner’s insurance premiums);
- Handle day-to-day details, such as forwarding mail, disconnecting utilities, updating insurance information, terminating leases and credit cards, and notifying banks and government agencies, such as social security and Medicare;
- File tax returns and pay income and estate taxes, including a final state and federal income tax return covering the period from the beginning of the tax year to the date of death;
- After securing court permission, distribute the estate property to the people or organizations named in the will, or to the decedent’s heirs if there is no will; and
- File receipts for distribution and final reports with the probate court to conclude the case and finalize the estate.
Am I Required to Act as the Personal Representative if Named in the Will?
You are not required to serve as the executor or the Personal Representative even if you are named in the Will. The Probate Court can appoint the alternate executor to be the Personal Representative. If there is no alternate executor, or if that person doesn’t want to serve, the Court will simply name an Administrator to act as Personal Representative. However, this might end up being the “Public Administrator” which is usually a branch of the County government and that might not be in the best interests of the decedent’s wishes.
Can I Resign as the Personal Representative of the Estate?
If you decide to be the Personal Representative, you can resign at any time. However, you may have to give an “accounting” to the Court for the time you served to be sure you acted properly during your time as the Personal Representative. There could be liability to you as Personal Representative for actions taken OR for failure to take proper actions during your time as the Personal Representative of the Estate.
Do I Need to Hire a Probate Attorney to Handle the Probate Case if I’m the Personal Representative?
Although the law doesn’t require that you have an attorney, it is almost certainly a good idea to retain a skilled Probate Attorney to handle the legal process involved. A Probate case is a formal civil court matter and it is subject to an extensive set of laws and court rules that are confusing, complex and sometimes contradictory. (See California’s Probate Code here).
An experienced Probate lawyer will be certain that you meet all deadlines and avoid mistakes, delays and liability for your actions in the Probate case. Further, a lawyer (or better, a Free Legal Liaison) can sometimes help avoid disagreements among family members over minor or major issues.
How can a Free Legal Liaison Help Me as the Personal Representative in a Probate Case?
To be clear, the Probate lawyer represents the interests of the personal representative ONLY, not the beneficiaries, heirs or family members. In fact, the Probate lawyer will not be able to disclose any information to those other interested people due to attorney-client confidentiality. Therefore, those heirs and family members may become suspicious and untrusting of the lawyer and, possibly, of you as the Personal Representative. Therefore, it is recommended that you also have a Legal Liaison who is free to discuss all the matters involved with all interested parties including the extended family.
If you need assistance locating a probate attorney or if you need help working through the process even if you already have an attorney, please view information about the Free Legal Liaison Program.