Call for an initial consultation: 510-402-1579
We Speak Korean – 한국어로 도와드릴수 있습니다

Don't Make A Move
Without Knowing Your Options

Newark Family And Estate Law Blog

An executor plays an important role in your estate plan. This person assumes the responsibility of closing your estate at the time of your death.

Considering the number of responsibilities an executor oversees, you will want someone you trust to fill this role. Looking for specific characteristics might improve your confidence that you have found the right person for the job.

Integrity

The person responsible for closing your estate will handle a lot of sensitive information. This could include access to your bank accounts, investments and other assets. You will want an executor who has integrity and will honor and respect your final wishes. The person you choose should treat you with dignity, as well as show respect and compassion to your family members.

Speaking with your executor ahead of time is a great way to reiterate your intentions. Highlight your wishes for an ethical and timely closing of your estate on behalf of the people you care most about. Discussing your expectations at the start may improve your executor’s understanding.

Attention to detail

Even one missing detail during the closure of your estate can have detrimental consequences. According to CNN, some responsibilities of an executor may include the following:

  • Filing tax returns
  • Processing claims from creditors
  • Distributing your property to heirs

Finding someone with impeccable attention to detail can provide reassurance. Other characteristics that you might also want to look for include organization, patience, financial stability and empathy. Your decision to think carefully about who you name as an executor right now, could be the only reason your surviving family members have a successful outcome later on.

California’s Probate Code recognizes surviving spouses as rightful heirs of a deceased’s estate. The California Legislative Information website notes that the probate court may verify the end of a marriage by a divorce decree.

Although a legal separation could have taken place, the separation document may not generally confirm that a couple divorced. When a spouse dies before the divorce proceedings end, California’s probate court may act based on the contents of an existing will.

Who may inherit my property?

As noted by the Judicial Council of California, the executor named in your will introduces it to the probate court after you die. Your executor gathers your assets and pays your debts. The probate court may review your will and verify your assets’ titles before transferring them to your named beneficiaries.

If you and your spouse own property together, your death may result in your spouse taking ownership. As described by Bankrate.com, surviving spouses generally become sole owners of properties that name couples as “joint tenants with survivorship.”

Who may inherit my assets if I die without a will?

If a spouse dies without a will, the probate court may distribute property under California’s intestate succession laws. SmartAsset.com explains how surviving spouses may inherit all assets acquired during marriage. This type of property distribution could occur when a California couple is childless and the deceased does not have a surviving parent or sibling.

With a surviving child, parent or sibling, however, a surviving spouse must divide half of the deceased’s separate property when no will exists. Separate property includes gifts or inheritances received during a marriage. It also includes assets obtained before the wedding date.

Divorce may require careful planning when facing an illness or a life-threatening injury. To avoid property distribution under California’s intestate succession statutes, you may create or revise an estate plan to fulfill your wishes.

If you have elderly parents, you may want to encourage them to put their financial affairs in order. After all, creating a comprehensive estate plan is one of the more effective ways for them to maintain control over end-of-life matters.

You can probably trust your parents’ estate plan to reflect their genuine intentions. Still, senior citizens are often susceptible to undue influence. This type of manipulation happens when someone supplants his or her interests over your parents’ wishes.

Isolation

It is not uncommon for seniors to experience both loneliness and isolation. If your mother and father have lost contact with close family members and friends, they may be looking for a caregiver or another person to fill the void. If this person has unscrupulous intentions, he or she may be able to cajole your parents into drastically changing their estate plan.

Incapacity

When you think about mental incapacity, you may envision an all-or-nothing change. That often is not the case, though, as older individuals tend to lose mental capacity over time. Put simply, if your parents are not capable of making financial and legal decisions, someone may be waiting to take advantage of their cognitive decline.

Ageism

According to a recent study in the Journal of Psychiatry Research, older individuals often experience extreme ageism. This type of discrimination includes differential treatment because of actual or perceived age.

If your parents are sensitive to ageism, they may be reluctant to ask relatives and friends for help with complex estate planning matters. This, of course, may leave them vulnerable to undue influence from someone they know less well.

If you can stop undue influence while your parents are alive, you can protect both their interests and your inheritance. After they die, though, it may be necessary to contest the estate plan to ensure you receive your fair share of your parents’ wealth.

Your parent may ask you to serve as the executor for his or her estate. As executor, you will be responsible for passing your parent’s assets to heirs after your mother or father has died. If you agree to the request, you should know how to locate your parent’s assets when the time comes to take up the duties of your parent’s executor.

Ideally, your parent would provide you with a list of assets and their corresponding locations. Still, it is possible your family member may forget where something valuable is. This is why you should be thorough to the point of considering unexpected locations when you try to locate your parent’s assets.

Check the home of your parent

In the event you put up your parent’s home for sale, be sure to go through each room carefully. U.S. News and World Report explains that sometimes people stash away assets in hiding places. The article mentions instances where individuals discovered a decedent’s assets in places like a bread box or the back of a sock drawer.

Remember that valuable assets such as stock certificates or property deeds are small and are easy to hide. So it may not be enough to move out your parent’s furniture before selling the home. You would probably have to pull out the drawers and check underneath them or inside the furniture for hidden documents. Also consider combing through places like the attic, in closets, a den or a basement if the home has one.

Be aware of unclaimed property

In some instances, a person loses or does not claim property and it ends up in the hands of the government. The government will hold on to the property until someone claims it. Under these circumstances, the government has escheated the property. Common examples of escheated property include safe deposit box contents, uncollected wages, insurance benefits, and stocks and bonds.

You may find out if your parent has any unclaimed property by checking California’s unclaimed property website. If your parent does have escheated property, the state should allow you as the executor to take possession of the assets. Taking steps to look for assets in unexpected places may help you realize your parent’s wishes to the fullest extent possible.

As you plan your estate, you want to make your executor’s job as easy as possible. If you expect to leave unpaid debts when you die, how should your executor tie up your financial affairs?

American Bar Association explains how executors navigate debt and expenses. Set your estate administrator up for success and peace of mind.

Executor responsibilities

Executors must know when to settle outstanding debts when a person dies, and the same applies to estate administration expenses. After determining debt due dates, estate administrators should either let creditors know whether to expect a payment delay or clear the debt. To avoid unnecessary issues, executors must pay real estate taxes, property bills and casualty insurance bills sooner rather than later.

Estate administrators may want to consult with experienced professionals to understand how to spend trust and estate assets the right way. Improper spending and neglecting to protect estate assets could cause legal liability.

Filing tax returns

Executors may need to file tax returns while settling an estate. Examples of such tax returns include generation-skipping tax and final income tax. Sometimes, decedents cannot file tax returns during the last year or final years of life because of health issues. Estate administrators should do a bit of digging to learn whether the deceased filed all necessary returns. Executors may need to file a federal estate tax return if the decedent’s estate value does not fall outside California’s current estate tax exemption amount.

Well-informed executors often have all the information they need to perform their responsibilities. Do your part to help them help you and your loved ones.

Estate planning is a critical aspect of planning for the future. Even if documentation is already in place, second marriages cause the need for change.

According to the Pew Research Center, remarrying is on the rise for individuals aged 55 and older. Those within this demographic must be aware of certain estate planning factors. This is especially true if children are already in the mix, thus creating a blended family.

Estate planning and second marriages

Questions about estate planning arise after remarriage. You need to decide which assets are to be separate instead of owned together. Is either of you bringing debt into the marriage? Will there be new debts now that you are a pair in the eyes of the law?

Further, ask yourself if you want to retitle your homes or bank accounts in each of your names. What about current beneficiaries named in your wills? You will want to alter yours so that your ex does not receive anything. Consider starting fresh and creating a brand new one together.

Think about whether you want to continue working with your current financial advisors. It may be time to start fresh with another agent.

Estate planning and blended families

If your current spouse has children, consider their needs. Have you and your partner discussed which are to receive particular assets? If you have children together, how will that change the distribution of valuables?

Many estate planning variables should change after you remarry. Mull over these matters so that everything reflects your current marital situation.

Estate planning includes naming a trusted individual to serve as your estate’s personal representative. While many individuals choose a spouse or an adult child, you may require an administrator experienced in managing complex or varied financial matters. In California, your estate administrator is also known as your personal representative.

Under California’s laws, your representative must submit your will for probate after your death. As noted by the AARP, he or she also oversees the payment of your outstanding debts and taxes. You may prefer an estate administrator with whom you can comfortably share your financial secrets.

How much confidential information may I share with my representative?

Before the probate court distributes assets and property to your heirs, your representative typically settles your financial obligations. You may need to share the location of your will and a list of all your financial accounts.

If you bank online, for example, your representative needs access to your accounts. You may leave your username and password with your chosen administrator and provide instructions regarding how to update or close your accounts. Your representative may also dispose of items such as personal letters or prescriptions that you prefer your heirs not see.

How may an administrator begin the probate process?

The probate process begins with your representative ordering copies of your death certificate from the California Department of Public Health. Financial institutions, for example, generally require a copy before transferring your account’s remaining funds to a beneficiary. Your representative may need to contact creditors and lenders to settle unpaid debts from your estate’s funds.

A skilled administrator may sell your property and distribute the proceeds to your creditors and heirs. By leaving specific instructions in your will and naming your beneficiaries, a trusted individual may effectively carry out your wishes.

In most cases in California, after a death, an estate representative will close out the estate through the probate process. The California Courts note that smaller estates may not need to go through probate and an informal estate representative will complete the process.

When the formal probate process is necessary, the court appoints one or more estate representatives.

If the deceased named someone in a will

A judge usually appoints the person or persons who the deceased named in his or her will. However, there may be exceptions. For example, according to the California Probate Code, a judge may not appoint someone who is a minor or someone who is a ward of a guardian or conservator. In that case, the judge may simply appoint the guardian or conservator or may choose someone else.

Likewise, if there are conflicts of interest or another challenge by those who have an interest in the estate, the wishes of the deceased may not stand.

If there is no will

The courts have a list of priority for who may be the estate administrator if the person died intestate. This begins with the spouse or domestic partner, then moves to the children, then the grandchildren, then other issue of the deceased. The list continues in this order:

  • Parents
  • Siblings
  • Nieces and nephews
  • Grandparents
  • Children or grandchildren of grandparents
  • Children or grandchildren of a deceased spouse or domestic partner

The person with priority may nominate someone else, and the judge will consider that nomination before the next person in order of priority unless the nominated person is further down on the list than the grandparents.

Other factors may apply, and much of the outcome is dependent on the discretion of the judge, so it is wise to have a thorough understanding of the Probate Code before filing a challenge.

When a person dies without a will or any form of estate plan in California, a host of important outcomes await decisions. Unfortunately, for the deceased’s family members, the legal responsibility of making said decisions rests with the courts.

People who wish to prevent familial discord and desire to provide support and comfort to their surviving family members may find a solution in designating an executor. Individuals who assume this responsibility may function as a liaison in implementing an estate plan and overseeing its success.

Finding the right person

The responsibility of executing an estate is not a job for just anyone. People must thoughtfully consider their options to select someone they fully trust, as well as someone who is in an objective position. Kiplinger suggests that people consider an executor that is fairly young and financially stable. They should also demonstrate emotional awareness, patience and have generally good mental health. Other important characteristics include the ability to make logical and realistic decisions and a clear understanding of an executor’s tasks.

Considering the role of executor

Equally as important as selecting the right executor is the process whereby candidates decide whether or not to assume the responsibility. For such a serious task, people must respectfully request permission from the person they wish to name as an executor. According to AAG, people asked to execute an estate plan must carefully consider their decision to accept by looking at three important aspects. These include the following:

  • Their temperament and relationship to the person and his or her family members.
  • The amount of time they have available to conduct important responsibilities.
  • Their skillset and the availability of resources to aid in overseeing an estate.

People who spend adequate time analyzing how their decision will impact their life may make a better choice in the long-run. When an executor is confident and comfortable with his or her responsibilities, their effort will provide a successful outcome.

Time is money and when someone passes away, it becomes an unfortunate fact. Heirs may need access to the estate to pay up bills they may have cosigned on or to care for dependents. Because of this, while probate is an important part of estate administration, you might also want to consider setting a few assets aside that go directly to heirs. 

There are several options available to make this happen. Here are a few of them. 

Use account beneficiary features 

If you have a life insurance policy, you already have a beneficiary named. Double-check to ensure this is still the person you want to receive your money. Did you know that even your bank accounts and investment accounts might have beneficiaries designated too? MarketWatch recommends looking into Transfer on Death and Paid on Death features. Check the website or make a few calls. 

Create a small estate 

MarketWatch explains that, in California, a small estate is worth $166,250 or less of probate assets. If you can reduce how many assets pass through probate using the tips above and others, your heirs may get access to probate assets much faster and pay fewer fees. You may need to fill out some paperwork ahead of time and keep an eye on your assets to ensure you do not pass the threshold. 

Keeping an updated will in the state of residence 

MarketWatch estimates that 60% of Americans do not have any estate plan in place, including a will. Of those who do, some may have created a will in a former state of residence and never updated it. This might drag out the probate process and cause states to spend a lot of time deliberating over which one is responsible for what assets. Perhaps, even worse is having no will at all as the state decides who gets what. 

Some families prefer to ensure items go through probate so that everything gets accounted for and follows due process. Even so, keeping probate assets at a lower value may benefit your heirs in the short and long term.