Being named the executor of a will in California can often be a little overwhelming, especially if you have no idea what to do. That’s why in this article, we’ll be guiding you through everything you need to know about being an Executor of a will; your duties, things to keep in mind, and more so that you can fulfill those duties without any issues.
What is an Executor? And How Do You Become One?
The Executor is someone who deals with the estate of a person who has passed away. In other words, they are responsible for the execution of the will.
In most cases, this person has been nominated in the will of the person who has died. However, this isn’t always the case, but we’ll talk more about that later on.
After the executor accepts the nomination, he then has a fiduciary duty to the beneficiaries. Don’t worry; we will be going into more detail on what fiduciary duty means later on in the duties section.
Do You Have To Accept The Nomination?
No, you are not legally required to accept the nomination. If this is the case, the court will have to appoint another person they deem best-suited.
However, most nominated people accept the nomination because it’s usually a close friend or relative who wanted them to execute the will. Many like to see this as a last favor to the person who has passed away and want to do everything possible that it’s done in their best interest.
And in a way, it’s one of the greatest compliments that a close friend or family member can give because it shows how much they trust the executor.
What if no Executor is Nominated or The Executor Declines The Request?
In some cases, there was no executor nominated, or the executor declined the request. If this is the case, then the court will have to appoint another person to be the will’s executor.
Again, this is not as common because there will usually be an executor nominated who wants to fulfill that request. However, it does happen.
Duties of an Executor of a Will In California
Now that we have covered what an executor is and some of the basic details, let’s look at an executor’s duties.
What To Do Before You Carry Out Your Duties
Before you carry out your duties, a court must appoint you as the executor. So, if you have only been named the executor, you should wait until you have officially been appointed.
How do you know when you’re officially appointed? The court will issue Letters testamentary. This document is given to you by an authority, and it allows you to gather assets and manage them.
If you have only been named the executor, not appointed, there is a slight chance that someone tries to challenge it. And, If you act before you are appointed, then someone challenges the nomination, it can lead to all sorts of trouble.
Fiduciary Duty definition
As we mentioned earlier in this article, you will have a fiduciary duty that you owe to the beneficiaries.
The fiduciary duty is the highest duty known to law. It means that the person has a legal and ethical relationship with one or more of the parties involved. This is the same duty that a parent would have to their child.
If the fiduciary duty is breached, personal liability can be posed upon whoever has breached it. So, in this case, it would be the executor (you). However, if you always act in the beneficiaries’ best interest and are always careful, then this should never happen, so you don’t need to worry.
Duty To Creditors
As an executor of a will, you also owe a duty to the creditors of the estate. As an executor, you must notify all the known creditors for the person who has passed away and ensure that they are paid correctly. Some executors provide creditors with forms they must use to claim against the estate for what they’re owed, but this is option (and in fact some attorney recommend against it, as it makes the job of the creditor easier).
Practical Duties of an Executor
After the court approves you as the official executor, you manage the entire estate, just like a business owner would manage their own business. This means you manage the debts, taxes, assets, etc.
This duty even includes legal management. For example, if there is a legal action brought against the estate, the executor has the responsibility to defend it. The same goes for if the estate would have a legal claim against another party.
Executor of a Will California: Everything Else You Need To Know
Below is everything else you need to know about being an Executor of a will in California.
Is The Executor Paid?
In California, the Executor is entitled to a statutory fee based on the value of the estate. If you know the value of the estate, you can use our probate calculator to determine what the statutory compensation would be. The statutory fee that the Executor is entitled to is equal to the statutory fee that a probate attorney would receive for representing the executor. In addition to a statutory fee, in California the Executor can request to be paid “extraordinary fees” for extraordinary services. For example, the Executor can request extraordinary fees for any work performed in selling real property that is part of the probate estate.
If the executor is also a beneficiary, the fee that they receive is usually declined. This is because the fee for being an Executor is taxed, while inheritance isn’t.
Get a Court Order Before Paying Yourself
If you do need to pay yourself from the estate, you must get a court order first. While you have full power over the assets inside of the estate, you must still follow the correct order of distributing the assets. This order is to ensure the creditors are paid first, then the beneficiaries, and then you.
And, if you want to pay yourself, you must have a court order first. Under California probate law, there is a hearing for the final distribution that takes place, and once the judge approves the order for final distribution, then the executor can write him or herself a check for their services, and this is when the probate attorney gets paid as well.
How Long Does This Process Take?
Usually, the process of the assets being probated and distributed will take around a year. However, this varies from case to case because of the different tasks involved. You should expect this process to take at least nine months, and for more complex estates where there may be additional legal issues, it can even take longer than a year. There are certain timelines that need to be followed. For example, once someone is appointed the executor (which can take around 2 months, depending on how busy the court is), there is a four month creditor claims period. After four months have passed, the executor files a petition for final distribution, and to get a hearing date for the final distribution can take place another 2 months or more. Due to Covid-19, expect longer delays due to the courts being closed to the public and/or having a reduced probate staff.
How Does The Executor Manage All The Tasks?
Of course, the executor probably can’t work on all of these tasks on their own. That’s why they hire professionals such as accountancy, insurance brokers, attorneys, etc., to help with the tasks using the estate’s liquid assets.
The funds that they use to cover expenses are of course taken from the estate before the distribution, meaning the executor will not have to cover those themself. For example, the Executor can be reimbursed for court filing fees, paying the newspaper publication fee, paying the probate referee for appraising the property, and other miscellaneous court fees. In addition, if the Executor uses out of pocket money to pay the mortgage on the property for example, he or she can be reimbursed for those expenses.
Need More Help?
We hope this article on being an executor of a will in California has been helpful to you.
If you are looking for a California will lawyer, we are happy to have a chat.