You may have been flattered when you were asked by a loved one or friend to be the executor for their estate. However, now that they've passed away and it's time to get to work, the responsibility seems overwhelming.
If you've never had this role before and you're not an estate planning attorney, it's all too easy to mismanage things, end up with family members and other beneficiaries suing you for executor misconduct and run afoul of the law -- even though you were trying to handle things properly.
"Executor misconduct" is a frightening term. Following are four common examples of it.
Failing to record the will
If the estate plan includes a will, it's essential to file it with the court. It's best if the deceased person made you fully aware of what was in their estate plan and the identity of their attorney. Unfortunately, if they didn't, you'll have to do some digging to locate the most current will and other estate planning documents. If you can't find a will, you'll need to go to court so that the person can be declared to have died intestate.
Failing to find and protect assets
It's best when all assets are detailed in the estate plan. However, not everyone includes all of their assets. Even when they do, you may not always know where they are. It's your job as executor to locate all of the deceased person's assets and to secure and preserve them until the estate is settled.
It's essential to know what debts, bills and taxes need to be paid from the estate before assets are distributed. It's also important to know which creditors have priority over others. Only after all debts and other financial obligations are taken care of should you begin the asset distribution phase of settling the estate.
Taking unreasonable payment for your services
People can designate in their estate plan what percentage of their estate they want their executor to take for their services. If the decedent didn't do that, you can look to the California Probate Code for guidance. However, don't just take the amount of money you believe you deserve.
The best way to avoid these problems is to consult with an estate planning attorney at the outset of dealing with the estate. If the decedent didn't have one, find an experienced California estate planning attorney to help you.