101 Probate To-Do’s/Know List
Responsibilities pertaining to an Executor or personal representative:
1. Determine and carry out the decedent’s wishes with respect to funeral, burial, cremation, etc.
2. Obtain the Death Certificate
3. Locate the original Will, or Trust
4. Maintain the decedent’s home
5. Locate and protect the Assets, including decedent’s property
6. Prepare a complete inventory of all assets owned by the decedent at the time of death
7. Inventory is submitted to the court appointed probate referee
8. Take possession of all the estate’s property insofar as practicable
9. Collect all dividends, interest and other income, and deposit all such items in an interest-earning estate bank account (or accounts) until the estate is closed
10. Assets listed in the inventory plus certain other non-probate assets (such as life insurance, joint tenancy property, and trust assets) comprise the decedent’s estate for tax purposes
11. Pay Bills and Taxes
12. File all tax returns
13. Sign the Federal Tax return
14. Keep a detailed account of all receipts and disbursements for the estate
15. Keeping careful records is essential
16. Keep estate property adequately insured
17. Provide for support of the decedent’s dependents
18. Notify the State Director of Health Services (if the decedent was receiving Medi-Cal benefits)
19. File a petition with the Superior Court asking that the Will and any codicils (amendments) to the Will be admitted to probate as the decedent’s Will
20. Thoroughly check the decedent’s records and personal effects for evidence of creditor’s claims
21. Be careful with payment of claims
22. Make certain that insurance coverage on insurable assets are kept up to date and that the insurance amounts are adequate in light of the asset’s appraised values
23. Do not commingle one’s own funds with estate funds
24. Personal representatives are responsible for filing estate fiduciary income tax returns
Be aware of the following topics:
Issuance of Letters
25. Within 30 days after the decedent’s death, the person who has custody of his or her Will must file it with the County Clerk in the county of the decedent’s residence and send a copy to the named executor
26. Certified copies of the Letters Testamentary (of Administration) may be requested by banks, title companies, transfer agents, tax authorities and others
Notice to Creditors
27. A Notice to Creditors serves to advise all known creditors of the decedent
28. A Notice of Petition to Administer Estate published in the newspaper constitutes notice to all unknown creditors of the decedent
29. Creditors have 4 months following executor appointment and the issuance of The Letters within which to file their claims
Inventories and Appraisals
30. Independent appraisal of any real property or other estate assets may be advisable
31. Fees paid to appraisers are proper expenses of the estate and can be claimed as estate or income tax deductions
Estate Bank Accounts
32. Cash and uncashed checks in the possession of the decedent at the time of his or her death, except for cash in savings accounts, should be deposited in the estate checking account
33. All disbursements from the estate checking account should be made by check
34. Substantial amounts of estate funds should not be kept for any appreciable period in the estate checking account
35. Instead, funds not required for current expenditures and distributions should be kept in an interest-earning estate savings account
36. The decedent’s savings accounts, if any, should be transferred into the estate’s name
Records and Accountings
37. The record of estate receipts and disbursements will be needed in preparing the accounting required by the probate court
38. Checking and savings account records and statements supplied by stock brokers, trust company agents, mutual funds, and others provide much of the information needed to prepare accountings and tax returns
Notices of Fiduciary Relationships
39. The federal and California tax laws require that personal representatives notify the respective taxing authorities of their appointment and of their discharge
Taxpayer Account Numbers
40. Every estate that is required to file any federal tax returns must apply for an employer identification number, which is the estate’s tax account number
Federal Estate Tax
41. The US government levies an estate tax based on the decedent’s right to transmit property at death
42. The estate tax is normally paid by the estate
43. A Federal Tax return must be filed for the estate of a decedent if the estate has a “gross value” of $5,340,000 for decedents dying in 2014
44. Alternate valuation date: the date six months after the date of death
45. If the alternate valuation date is elected, the sale or distribution of estate assets can affect the federal estate tax due
46. Because of the opportunity to elect the alternate valuation date, the administration of the estate usually continues for at least one year
47. The federal estate tax return is due and estate tax must be paid nine months after the date of death
Gift Taxes
48. If the decedent made any gifts in the year prior to his or her death, it may be necessary to file federal and state gift tax returns
49. California no longer imposes a gift tax, but some other states still do
50. It may also be necessary to file delinquent gift tax returns for unreported gifts made by the decedent in prior years
51. Gift taxes paid after death are deductible on the estate tax returns, but any federal gift tax paid or payable with respect to gifts made within three years of the decedent’s death must be included as an asset on the federal estate tax return
Income Taxes
52. Final income tax returns must be filed for the portion of the year prior to the decedent’s death and are due by April 15th of the following year
53. Extensions of time to prepare such returns can be obtained if necessary
54. An estate is a separate taxpayer for federal and state income tax purposes
55. A federal fiduciary income tax return (Form 1041) must be filed for any beneficiary is a nonresident alien
56. A California fiduciary income tax return (Form 541) must be filed for any tax year in which the estate earns $1,000 or more of net (taxable) income, or gross income of $10,000 or more
57. The personal representative may select a fiscal year for the estate
58. Selection of a fiscal year may permit some reduction of total tax liability or at least a deferral of some tax liability
59. Unlike an individual, an estate is entitled to an income tax deduction for amounts of income or principal paid or distributed to certain beneficiaries during the year, who must in turn include those amounts in their income tax returns for that year
60. Significant income tax savings may be possible by proper planning
Real Property Taxes and Change of Ownership Forms
61. The personal representative plans to pay all real property taxes when due
62. The first installment of taxes on California real property is delinquent on December 10th, and the second installment is delinquent on April 10th
63. The county assessor of each county in which the decedent held real property must be notified first of the change of ownership from the decedent to the estate, and then upon distribution of the real property from the estate to the beneficiary
64. The change of ownership may result in a reassessment for property tax purposes, depending on the relationship of the transferee
Expenses of Administration and Compensation of Personal Representative and Attorneys
65. The expenses of administering estates vary depending on many factors, only one of which is the size of the estate
66. The expenses of administration may include court fees, certification fees, surety bond premiums, the California probate referee’s fees, agency fees, insurance premiums, expenses of selling assets, and the personal representative’s, accountant’s and attorney’s compensation
67. The largest costs are usually the compensation of the personal representative and the attorneys
Compensation of Ordinary Services for Personal Representative and Attorneys
68. A personal representative is allowed compensation for their services
69. Unless the Will makes special provision for compensation, the amount of compensation for “ordinary” services is fixed by California statute and is based on the value of the estate accounted for
70. This value generally includes the inventory value of the probate estate and income received during the period of administration
71. Compensation can be paid only after the court orders payment
Compensation for Extraordinary Services of Personal Representative and Attorneys
72. In addition to the statutory compensation discussed above, the probate court may, in proper instances, authorize payment of additional compensation to the personal representative and/or to the estate’s attorneys for “extraordinary” services rendered in the administration of the estate
73. There is no prescribed schedule of compensation for such services
74. The amount in each instance is fixed by the court on the basis of a declaration by the applicant as to the nature and extent of the extraordinary services rendered to the estate
75. We as attorneys (and our paralegal assistants) are frequently called upon to perform legal services in connection with the administration of an estate that are regarded as extraordinary in nature and are not covered by the statutory compensation provided for by the Probate Code
76. Such services commonly may include: handling sales or mortgages of real or personal property; contesting or defending litigated claims against the estate; preparing the federal and/or state estate, inheritance, gift, income, sales, property, or other tax returns representing the estate in an audit for litigation concerning any of those taxes; handling litigation relating to property of the estate; arranging for ancillary administration in other states where the decedent owned property; and preparing petitioner for instructions, to determine heirship, and for preliminary distribution
Agents for Personal Representatives
77. An individual who is not an experienced fiduciary is entitled to receive the statutory compensation for serving as a personal representative, even though he or she does not have the training or experience required to perform all the personal representative’s duties
78. We have found that many estates can be more efficiently administered if a nonprofessional personal representative hires others to perform some or all of the services that he or she is expected to perform
79. However, a personal representative is generally not entitled to reimbursement from the estate for the expenses incurred for such services
80. Most courts consider such expenses to be expenses of the personal representative, which must be paid from his or her compensation
81. If the personal representative wish to engage an agent to perform ministerial function, there are several alternatives available
82. Banks and some accountants serve as probate agents
Waiver of Representative’s Compensation
83. Compensation paid to a personal representative is taxable income to him or her
84. Under some circumstances, a personal representative who is also a beneficiary may benefit by waiving his or her right to receive compensation
Family Allowance
85. During the probate of an estate, a surviving spouse and minor children are entitled to a family allowance for their support, commencing with the date of death and continuing until further order of the court
86. The family allowance is obtained through a petition to the court, which settles the amount to be allowed
87. If a family allowance is considered advisable, we will take the necessary steps to obtain it
88. A family allowance will be taxable as income to the recipient
Preliminary Distributions
89. It is not necessary to wait until the estate is ready to be closed before making any distributions
90. The Probate Code specifically provides for preliminary distributions
91. However, a preliminary distribution may not be made before two months after the Letters Testamentary or of Administration are issued
92. If a distribution is made between 2 and 4 months after Letters are issued, a bond may be required to protect the rights of creditors
93. If a distribution is made more than 4 months after the Letters are issued, that is, after creditors’ claims are barred, a bond is not usually required
94. A personal representative may want to make a preliminary distribution of any cash or other specific bequests provided for in the Will
95. A personal representative may also want to make a preliminary distribution of income or principal to establish a trust created by the decedent’s Will
96. Income tax considerations may affect the proper timing of distributions and may make it preferable to delay any substantial distributions other than those to specific, demonstrative, and general legatees
97. An appropriate court order is required before the personal representative makes any preliminary distribution
Final Distribution
98. When all debts and taxes have been paid and the estate is ready for final distribution a petition should be made for final distribution, often with the help of an attorney, based on all records of receipts, disbursements, and assets on hand
99. If all is in order, the court will enter an order approving the personal representative’s account and report and ordering distribution of the remaining estate assets
100. This normally takes approximately three weeks after the petition is filed
101. A personal representative, often with the help of an attorney, then distributes the assets and obtains the necessary receipts from the beneficiaries
Updated 18 December 2021
-Referenced California Practice Guide, The Rutter Group
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