Most of us have no idea when we’re going to die. To live life to the fullest during the time they have, some people choose to spend their resources lavishly and give no thought to what will happen when they’re gone. However, the same thing cannot be said of examples of people who plan their way through each step of life and prioritize leaving a strong legacy for their loved ones. These are the kinds of people who may want to know the answers to questions like, “what if the executor doesn’t probate the will in California?”
Let’s break that down a little. The latter type of individual is likely to do some real estate planning to minimize cases of intestate succession wrangles. When doing so, they will likely appoint an executor (a person appointed to deliver the last will and wishes of the deceased) when drafting their final will for their real estate property. Apart from real estate property, the will may also contain retirement benefits. The executor’s role mainly entails carrying out the last wishes of the estate holder, and the executor is often a relative or close friend.
The executor is like a personal representative to the deceased holding a legal title for presiding over their will. This individual is tasked with releasing the estate through probate to its heirs. To minimize the cases of the intestate estate, the individual draws a good estate plan on how his estate property gets shared when they pass on. The will is always written in an official language to enable the executor to perform estate checking before finally allocating the real property to its heirs. The testator should also outline the title of companies they own. They should indicate how the company benefits shall get divided among the intended heirs.
But what if the executor cannot serve their role due to illness, unavailability, or some other factor? Will the sharing of the estate property to intended heirs become a lengthy process? “What if the executor doesn’t probate the will in California?” As you can see, the executor plays a pivotal role in estate planning and probate proceedings. In this article, we’ll identify the role(s) of the executor in will preparation as well as their roles in the probate process and what happens if they’re unable to serve.
Roles of the Executor
When an individual is saddled with the role of the executor, they must brace themselves for the numerous tasks ahead. This role is often borne out of the deceased person’s respect for the executor’s integrity and trustworthiness, so many people take it very seriously as a sign of their relationship and living trust with the deceased.
Since California estate law dictate that all inheritance assets of the deceased must be accounted for among the heirs, a proper estate settlement should be carried out by the executor. It’s not always mandatory to seek the assistance of an estate law firm when the deceased’s family already has an executor. Such an individual will ensure the due estate planning strategies get implemented.
The executor’s role involves settling the deceased person’s debts and bills and distributing their real property to their heirs and beneficiaries in accordance with their stipulations and the state laws among other duties. Similarly to an estate lawyer, the executor will ensure that all tax returns have been filed. The title of property to be shared should also be accurate as per the will and no extra time needs to be spent proving this. This also entails making sure that each sole beneficiary gets engaged in the whole process including being shown the actual estate that needs division. Such property may also include the deceased’s probate estates.
Here’s a general idea of the duties of the executor:
- Filing the will with the local probate court
- Notifying the banks and government agencies of the decedent’s death through the provision of an original death certificate
- Determining the necessary kind of probate
- Settling and paying estate debts and bills
- Maintaining the estate until it can be distributed or sold in a fair market (providing social security)
- Filing of estate’s inventory with the court
- Paying estate taxes (including filling the personal income tax return form)
- Setting up a bank account for incoming estate funds and other ordinary income
- Representing the estate in court
- Distributing the deceased’s assets to beneficiaries
- Disposing of other assets
Now that we have gotten familiar with the roles of the estate executor, it is important to emphasize that probating a will is different from filing a will. Probating a will is key towards minimizing disagreements among family members. Let us proceed to the main discussion.
What If the Executor Doesn’t Probate the Will in California?
Earlier in this article, we stressed that probating a will is different from filing the will. It is very important for the will to be filed with the court upon the death of the testator (original owner of the estate), whether or not there is an estate or assets (real property).
As ascertained earlier in the article, the size of the estate is a major determinant of how the executor should proceed with the will. The will regarding estate assets should outline how the personal property for the deceased should be divided. The property to the beneficiaries should equally get divided. In California, state law provides that it is not necessary to probate a will if the total value of the assets of the testator as at the time of death, which are subject to probate, do not exceed the sum of $100,000 (one hundred thousand US dollars).
Since the estate is small, the procedure for the transfer of assets to the beneficiaries and heirs is simple and requires no legal document. In this type of situation, going by the state laws, the executor has every right to not probate the will.
It is rare to find family friends included as heirs of the deceased’s estate. Even if they may have catered for the deceased funeral bills, the will is exclusively for the immediate family members (or closest living relatives). Common assets for the deceased must all be included in the will; they cannot get handed to a beneficiary without probate. The cost of probate will also get accounted for by the immediate family.
According to the California Probate Code, if the estate must be probated, the executor must probate the originally signed will within 30 days after the death of the deceased. Failure to do so will put the executor in legal trouble with the beneficiaries and legal heirs of the estate who would have benefited from the will. The executor, therefore, holds a personal liability to delivering the will. This means that, yes, it is generally illegal for an executor to fail to transfer property to beneficiaries and this will lead to a criminal violation. Since the executor was allocated the sole responsibility of stating what was included in the will, they must declare all the assets subject to division among heirs.
Can Executory Powers Be Relinquished?
There are other situations that may make an executor unable to probate a will. These include the sudden death of the executor, the occurrence of a misfortune for the executor, or an emergency the executor must attend to. This move may significantly impact a probate court proceeding for a period of time. Some of the options may entail seeking a new legal representative for the deceased’s family.
What happens if the executor is unable to file the will and start the probate process? They have to pass the original signed will to someone else. This new person then must take the will to a proper court. A legal notice needs to be put forward regarding the change in executors. Usually, the laws for filing an original signed will within a stipulated time frame varies from state to state. An experienced lawyer will tell you that this ranges from 30 days to 3 months depending on the state. In California, the stipulated time within which a will must be signed is 30 days. This applies regardless of whether it’s the executive or another emissary who files the will.
If the executor of an estate dies, or if the executor is unable to perform their executor role for another reason, the probate court in the estate vicinity must appoint someone to take up the role of an executor by issuing what is called “letters testamentary.” This is a document issued by the court authorizing an individual who has been chosen as an alternate executor to take control of the deceased’s estate.
Keep in mind that if an executor is not available among the relatives or friends of the deceased, the estate may need to hire and pay for attorney fees for the services of a professional lawyer. If a personal representative from the deceased’s family is not available, a probate lawyer will be of great assistance.
Removing an Executor
It is also worthy of note that the rights and powers of an executor can be rescinded by the court, even if the executor wants to fulfill their role. It is possible for a living executor to be disqualified from the executor role if they are proven to be incapacitated, convicted of a felony, or if they express what the court or beneficiaries of the will believe to be a conflict of interest. Also, it the executor shows no signs of adhering to the laws of intestacy, they can easily get disqualified.
What If the Executor Does Not Probate the Will? The Legal Consequences
Probate, as we have defined in other articles, is the legal process in which the estate of a deceased person is managed, ensuring all debts are settled, taxes are paid, and proper distributions to beneficiaries are made. It is pertinent to note that if there are titles to properties and other belongings like vehicles, the probate process will play an important role in the distribution of such assets whether there is a will or not. That’s why, if the executor fails to probate the will, the beneficiaries and heirs of the estate have serious cause for concern and can choose to take action for a legal claim.
If an executor does not perform their responsibilities, the beneficiaries and heirs can ask the court to have the executor removed due to violation of probate rules. There are also situations where the executor could face charges for violation of the state probate laws. This can occur if the beneficiaries can establish in court that the executor intentionally decided to not probate the will because of some financial gain they intend to make from the entire estate. This is common in cases where the executor is also a beneficiary of the will or estate beneficiaries.
Let’s say, for instance, that the executor of the will is the only family the testator has. However, the testator decided to leave their estate to a friend, and they indicated this in the will. If the executor fails to probate the will then, the ownership of the estate would naturally fall to the executor according to the state law being the only family. If this is discovered, however, the executor would face criminal charges for the fraudulent activity.
What if the Executor Does Not Probate the Will? There Are Options!
Summarily, it is important to file the will as well as probate the will. Probating the will leave little or no doubt at all in the minds of the beneficiaries of the estate that things are being done in accordance with the decedent’s wishes, thereby leaving no room for litigation processes. On the other hand, an executor could get into a legal battle with the beneficiaries and heirs of the estate if they fail to probate the will and divide the assets to heirs.
In a case like that, the heirs and beneficiaries may sue for damages, claiming they were not given the complete assets to which they were entitled. Depending on the type of petition, they may resort to seeking legal advice to initiate the probate hearing process. Since they are seeking an inheritance for personal property, the rules related to probate assets will get applied.
What can be gleaned from this? If someone wants to name you the executor of their estate, make sure you’re up for the job. If you want to name someone the executor of your estate, make sure to ask first. You should not succumb to undue influence so that you probate assets in favor of one individual. And if you’ve been appointed an executor but can’t follow through, don’t ignore the situation; take steps to find a legal replacement immediately. You also seek additional advice from a probate lawyer. A probate attorney will help you provide valid claims as to why you no longer have authority over estate assets for the deceased.
We hope that this article has been helpful in answering any question you have about this topic. Check out other blog posts from A People’s Choice to find out whatever you need to know about the probate process as well as for the preparation of any legal documents you may need. And, if you need help with your estate planning or probate, make sure to contact us for effective and affordable service!
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