During the probate process, the judge will name someone to manage and distribute a deceased person’s estate. If the person had a will and named an individual or organization, such as a bank, that they wish to carry out their last wishes, the probate court judge can make them the executor of their estate. It is important to avoid common mistakes executors make in California probate cases that can help you successfully manage an estate or complete an estate plan.

Probate Executor and Their Role

If a person dies and leaves only a will and no trust, under California probate laws, they will be subject to the probate process.

Under California Probate Code Section 8001, the overseer of a will must present it to the clerk of the San Diego County Superior Court within 30 days of learning of the person’s death.

If the overseer wishes to be named executor of the will, they file with the court a Petition for Probate (Form DE-111) and publish a notice. Once the probate court validates the will, it will formalize the executor and issue Letters Testamentary, granting them official administration of the will.

The 7 Most Common Mistakes Executors Make in California Probate Cases

Overseeing the management and distribution of someone’s assets after their death is a very important job, and when you’re not familiar with our state’s probate laws, errors can occur. Avoiding the seven most common errors can help support the estate plan and its execution according to the person’s wishes.

Lack of Understanding of Probate Executor

Not understanding what it means to be a probate executor can create several issues. If you agree to be the executor of a will during the probate process, the first thing you should do is familiarize yourself with California’s probate laws and hire a probate lawyer who can help you fully understand your duties and walk you through the process.

Failure to Follow Estate Plan

Failing to follow the terms of the will not only is against the wishes of the person who created it but can cause several complications during the probate process. The deceased person made their will to communicate their final wishes and prepared it to be carried out correctly. It is the executor’s job to navigate the successful outcome of those wishes. Not adhering to the will’s instructions can lead to mismanagement issues and beneficiary disputes.

Failure to Inventory

Fully assessing the inventory of the estate plan is crucial to a successful probate process. After formally being named executor, you have up to four months to provide a full asset inventory with their fair market value to the probate court. A mistake executors sometimes make is failing to adhere to the deadline or turning in an incomplete inventory, which can lead to a slew of legal issues.

Distributing Assets Too Early

While the executor is the person who will ultimately distribute assets to beneficiaries, they can’t do so until the probate court makes its final ruling. Distributing assets too soon can leave an estate without enough funds to pay creditors or outstanding debts, making the executor personally responsible to make up the difference.

Improper Communication with Potential Heirs

Part of the job of a probate executor is to keep all potential beneficiaries up to date on how the probate process is moving along. Sometimes executors forget or don’t want to keep open lines of communication with heirs, leaving them in the dark and possibly resulting in unneeded conflicts.

Not Notifying Creditors of the Probate

During the probate process, creditors could make claims against the estate. The probate executor must notify all creditors within four months of their appointment to give them enough time to make their claims. Not notifying creditors can lead to legal and financial issues for the estate down the road.

Mixing Estate Funds With Executor’s Personal Funds

Sometimes executors make the mistake of commingling an estate’s bank accounts with their own personal account, such as paying for estate expenses with their own personal money. This can lead to fund misappropriation questions and can make it very hard to get reimbursed for anything that comes out of the executor’s pocket later.

FAQs

Q: Who Is Named Probate Executor if There is No Will?

A: If there is no will, the probate court will appoint an administrator, rather than an executor, to manage the estate. The administrator is generally someone very close to the deceased, such as a surviving spouse, adult child, or next of kin. Or if no family members are available, a creditor or lawyer can be named the estate’s administrator.

Q: What Percentage of People Die Without a Will Naming Their Executor?

A: About 76% of Americans die without establishing a will, which means there is also no named executor for their estate. While no one wants to think about the end of their life, putting a will in place with a named executor can help speed up the probate process and provide peace of mind to your loved ones who need access to your assets when you’re no longer there.

Q: What Is Executor Misconduct?

A: Executor misconduct occurs when a court-appointed estate executor fails to adhere to specific legal responsibilities and conduct as outlined under California Probate Code Sections 9600–9606. If an executor mismanages a person’s estate, they may find themselves removed as executor by the probate court and can also be held liable for any financial losses the estate may face due to their actions. Executor misconduct can lead to delayed distribution of assets, which can mean added stress and financial strain for loved ones.

Q: How Can an Executor Provide a Smooth Probate Process?

A: The key to providing a smooth probate process is for the executor to fully understand what is being asked of them before agreeing to be legally appointed the executor. They should also do their homework to familiarize themselves with California’s probate laws and immediately retain a probate lawyer to help them through the process.

Hire a Probate Lawyer to Avoid Probate Process Pitfalls

Being named executor of someone’s estate is an honor and a privilege that should not be taken lightly. Hiring a probate attorney is one way to avoid costly mistakes and follow the last wishes of the dearly departed.

With more than 40 years of experience with estate and probate law, Paul V.L. Campo Attorney at Law is here to answer your probate questions and help you navigate potential pitfalls during the process. Contact our team today and the confidence you can trust on your side.