A married person would generally name their spouse, but if the spouse was not living, then they would usually name the ultimate beneficiaries, so a child or children could be appointed as co-executors. Sometimes, depending on who the ultimate beneficiaries are, the person would name a third party professional fiduciary- a person, an individual, or a company whose business is to administer these estates. If there is nobody who is willing to do that, the county would administer the estate, so there are a lot of different options. Can Someone Jump over All Those Hurdles and Just Get an Attorney?Yes. Some attorneys do this but not very many, however it is a possibility. Attorneys who get involved in the probate cases are usually the ones who are hired by the personal representatives to prepare all the necessary court documents and petitions and advise the personal representative on what needs to be done to legally administer the estate, but it is very rare for the attorney to actually serve as the personal representative. What are the differences between the duties of a personal representative and an attorney?Whoever has been named as the personal representative is completely responsible for administering the estate. The personal representative has to wind up the business, if there was a business, and negotiate with the banks regarding any mortgage on any real property so that the real property does not get foreclosed on. The personal representative may also have to sell the real property, close the bank accounts, pay all the debts and bills, file taxes for the decedent and file taxes for the estate, notify social security, collect any life insurance proceeds and do an almost endless list of things. The attorney for the personal representative would guide that person through all of his or her responsibilities and would make sure it gets done, because ultimately, everything has to be approved by the court. The case would not drag on and on if the personal representative did not know what to do or was not getting things done effectively. It is basically the lawyer’s responsibility to help the personal representative get the case finished. Does an executor get paid?Yes, and that is one of the few attractive things available to executors and administrators, because they do get paid a fee. Every state is different, but with regard to California law, the fee of the personal representative is set by statute for the basic fees, and it is based on the value of the assets that are handled through the probate. It is the exact same schedule that the attorneys get paid on, except it is called a “fee” for attorneys and it is called a “commission” for the personal representative. In California it would be 4 percent of the first $100,000, then 3 percent for the next $100,000 and it would go down to 2 percent of the next $800,000 and then down to 1 percent of the next $8 million. The court sets the fees for estates larger than that. The attorney and the personal representative would also be entitled to extraordinary fees if there was anything extraordinary going on with the probate. Extraordinary fees would be for something above and beyond a normal probate case, such as if there was the sale of a business, or if there was any litigation over creditors’ claims or maybe a will contest with a disgruntled heir, then obviously there would be some extraordinary fees for that as well. What Happens If Someone’s Personal Representative Failed To Perform His Or Her Duties?The personal representative can be removed by the court. The court sets deadlines. Typically if the deadlines are not met, the court sends out an “order to show cause”, which means the personal representative would have to come in and show why he did not fulfill his duties on time. There might be a good reason for it, but the court will evaluate this and ultimately if the judge determined that the person was not fit, then the judge would simply order him or her to be removed as personal representative and they somebody else would be appointed. The personal representative can be held personally responsible if there were any damages to the estate because of their negligence or malfeasance, and they would have to repay any losses that they caused, which is why there is usually a bond for the protection of the estate. If the estate was worth a million dollars, then the court would require a million dollar bond if somebody filed to become the executor or the administrator. The bond would be there to reimburse the estate for any losses that the personal representative may cause. Is There Anything An Executor Or A Personal Representative Can Do To Make The Process Go Quicker?The person would have to be organized, keep track of everything, and get things to the attorney on a timely basis so the appropriate petitions can be prepared and filed. It is a lot of work, and a lot of executors and administrators find it very difficult to keep up with their regular job and life while still administering the probate. The person would also need to hire an attorney who is familiar with probate and who does it on a regular basis, and make sure the attorney communicates with them and does all the things that the attorney is supposed to do. Other than that, not much can be done to speed up the probate. How Much Does Probate Actually Cost?It’s very expensive. The very rough rule of thumb estimate is that five percent (5%) of the gross value of the estate is eaten up by probate costs and fees. For more information on Personal Representative In Probate Process, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (949) 660-0007 today. |