What is Estate Administration?
Estate administration occurs after someone passes away. If someone has assets at the time of their death, their estate should be administered. Typically, the three ways in which as estate is administered is by either:
- Trust;
- Will; or,
- Intestate succession (no will or trust exists).
Unfortunately, when someone dies, it can be an emotionally stressful time to address administration of their estate. Despite that, some important things may need to be dealt with quickly, such as mortgage issues, property taxes, life insurance, retirement or investment accounts, notifications to banks, public entities, Social Security, medical providers or landlords. Addressing these things without legal help can be overwhelming.
The caring attorneys at Advocas Law Group are here to help you during difficult times.People often seek restraining orders in conjunction with other legal matters, such as a civil lawsuit, criminal charges, or a family court matter (divorce, child custody, visitation, etc.).
Administration of a Will
Nobody can act on behalf of the estate until the Probate Court judge appoints an administrator of the estate. An Executor is simply the person named by the decedent in the will to administer the estate, but the executor has no power to act without court orders.
Among the things required to probate a will are court forms and declarations to fill out and file properly, notices to provide, service upon people and entities as required by law, marshalling the assets (and identifying debts), and a host of other duties. If these duties are not performed in accordance with state statutes, the probate examiner’s office may reject certain filings, leaving you to figure out on your own how to remedy them and prolonging the time before a personal representative of the estate is appointed to act. Also, if an administrator does not act in accordance with the law or the will, such as failing to provide notice to certain parties, failing to distribute assets, or fails to pay debts, the administrator can be held personally liable and sued.
If a will is identified and located, Advocas Law Group guides and manages the process of probate every step of the way, so you aren’t burdened with trying to figure out what to do on your own.
Trust Administration
Trust Administration is performed by the person whom the Grantor (or Settlor) has named as Successor Trustee. There are a whole host of duties the successor trustee is obligated to perform, such as making sure immediate things are addressed (life insurance, funding of funeral expenses, etc.) and then inventorying and marshalling assets, determining insurance, changing deeds, etc.
It is important that the successor trustee act diligently. Even though one of the goals of having a trust is to avoid probate, the Probate Code still applies to the administration of trusts and the successor trustee has a host of responsibilities and duties. Many people are unclear about their role as successor trustee and run into trouble during their administration of trusts.
I tell clients to think of the role of a successor trustee as a captain who is delivering a ship and its contents to its intended destination, navigating waters with many mines. Neither the ship nor its contents belong to the captain. For example, care must be taken not to commingle trust assets with the trustee’s assets, the successor trustee cannot use trust assets for any personal benefit, complete and accurate accountings must be regularly provided to beneficiaries, sub-trusts must be established (if the trust calls for that), care must be taken if assets are to be invested.
In short, trust administration can be tricky. But Advocas Law Group is here to help you with your trust administration needs. We employ accountants with experience in providing Probate Code-compliant accountings. Even the most experienced and savvy captains employ pilots for the navigation of unfamiliar waterways. Advocas Law Group is here to help.
INTESTATE SUCCESSION
What you do when a loved one dies without a will.
When a person dies without having a will or trust in place, the decedent’s property passes by what is called “intestate succession.” For an administration of a decedent’s estate where the decedent had assets and had no will, the estate must go through probate court. In California, Probate Code Sections 6400 through 6455 address the law as it pertains to intestate succession.
Once a probate is opened (filed) with the court, someone will be appointed the administrator (personal representative) of the estate and administer the estate in a manner that the decedent would have designed his or her estate plan, had that person had a will. This may differ from what the decedent may actually have wanted, or even expressed in conversations throughout the years, but probate court is a court of law (which follows the Probate Code) rather than a court of equity (what is considered “fair”).
If for example, the decedent had an estranged spouse or an estranged child, the estrangement typically will not be considered by the court. Another example is that probate code makes no provision for a longtime domestic partner whom the decedent never married. Even if the decedent verbally made his or her wishes known, no exceptions are made where no valid will exists. Nor are there any exceptions made based on need or special circumstances.
Under the laws of intestate succession, close relatives (spouse, children, parents, siblings) will take the decedent’s property instead of distant relatives.
Contact us today to learn more.