Probate is the judicial process where a representative of a deceased person’s estate, sometimes referred to as the “Personal Representative” or “Executor,” proves to the Court that the assets of the estate are to be distributed in a specific manner.
If a decedent left a valid Last Will and Testament (“Will”), the decedent is considered to have died “testate,” and the Will can provide direction to the representative and to the Court in determining what beneficiaries are to receive which assets at the time the Court orders distributions. If the decedent did not leave a valid will, the decedent is considered to have died “intestate” and the probate code will instead determine how the estate will be distributed. The question of the validity of a Will or the existence of one is not always a simple determination and may require the Court’s help.
In addition to proving a Will, the personal representative will also be responsible for collecting and valuing assets of the Estate and suggesting how the Estate’s assets will be distributed. This representative will owe a fiduciary duty to the beneficiaries of the Estate to safeguard the assets and to act in the beneficiaries’ best interests. Beneficiaries may bring claims against the representative for breach of this fiduciary duty which will require litigation and could potentially lead to personal liability.
The work of the personal representative is time consuming and detail-oriented and requires familiarity with the law and the judicial process. When a personal representative is not familiar with either, managing a probate process may become a challenging and stressful process, especially in light of just having lost a loved one.
If you are tasked with acting as a Personal Representative or Executor in a probate proceeding, or do not even know what or if probate is the proper path, it’s important to speak to an experienced probate administration attorney early on in the process. Contact one of our knowledgeable estate planning attorneys to set up an appointment to discuss your facts and circumstances further.
The material in this article, provided by Chauvel & Glatt, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute, legal advice or promise similar outcomes. For information on your particular circumstances, please contact Chauvel & Glatt at 650-573-9500.
