Probate administration is the process of transferring the decedent’s assets (defined as the assets of a person who recently died with a will (testate), or without a will (intestate), to the person or entities entitled to receive the assets. The main functions of probate are:
1) to collect the decedent’s assets;
2) ensure that assets or proceeds of the assets (through a sale of the assets) are used for payment of the decedent’s debts and taxes; and
3) to distribute the remaining assets or proceeds of the assets to heirs or beneficiaries. Probate administration of a decedent’s estate can be a very long (sometimes taking a year to a year and a half to complete), confusing, and a complicated process.
In the beginning of probate administration, an Executor (named in the decedent’s will if there was a will) or Personal Representative (if the decedent died without a will) will be appointed by the Probate Court (upon filing a petition seeking appointment) and will be given an Order for Probate and Letters of Administration to begin the probate of the decedent’s estate. One of the forms an Executor or Personal Representative must sign prior to receiving an Order and Letters is the Judicial Council of California Form DE-147 titled Duties and Liabilities of Personal Representative. This form can be found athttp://www.courts.ca.gov/documents/de147.pdf.
The form generally identifies the duties and responsibilities which apply to an Executor or Personal Representative in probate administration. The form is overly simple and logically so. However, and with all due respect to the Judicial Council of California (who created the form), it grossly oversimplifies the complexity of probate administration as well as all of the requirements and burdens placed upon an Executor or Personal Representative under California law. Ultimately, the form does state that if an Executor or Personal Representative fails to perform their duties or to meet the deadlines “the court may reduce…compensation, remove you from office, and impose other sanctions.”
Anyone named as an Executor in a will or wishing to be appointed as a Personal Representative of a decedent’s estate should carefully review their ability to take on such a large and complex task. Moreover, they should contact Chilina Law Firm or another law firm practicing in probate and estate law for a review of the probate matter to determine complexity and related issues and whether or not they are able to or want to take on such duties.
Authored by Greg Chilina and Co-Authored by Karen Chilina
Chilina Law Firm, a Professional Corporation, is a full-service estate planning, probate, trust administration, business law, and real property law firm that provides a wide-range of advising, transactional, and litigation services to its clients from its office located in Atascadero, California. The firm’s attorneys represent individuals and business entities in an assortment of transactional and litigation matters involving estate planning (including trusts, wills, powers of attorney, and medical directives), probate, trust administration, as well as general business law, contracts, corporate governance, land use, and real property. Chilina Law can be contacted by telephone at (805) 538-5038 or by email atinfo@chilinalaw.comor visit the Chilina Law Firm at www.chilinalaw.com. Chilina Law Firm is based in Atascadero, California and serves North San Luis Obispo County communities, including Santa Margarita, Atascadero, Templeton, Paso Robles, and San Miguel.
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