What are the duties of the
Executor of a deceased person’s Estate?
Robert Todd, Esq
How to make a will
- Find the deceased person’s assets and manage them until they are distributed to inheritors.
- Decide whether or not probate court proceedings are needed. (Nolo Probate FAQ.)
- Figure out who inherits property.
- File the will (if any) in the local probate court. Nolo Finding and Filing the Will.
- Handle day-to-day details.
- Set up an estate bank account.
- Use estate funds to pay continuing expenses.
- Pay debts. Notice to Creditor of Death.
- Pay taxes.
- Supervise the distribution of the deceased person’s property. White & Williams * Nolo.com
Common pitfalls include …
buying assets for yourself or a family member from the estate or trust, even at market price, American Bar Assoc
the duty of care,
requires a fiduciary to carefully manage trust or estate assets. “prudent investor rule,” which requires a fiduciary to use reasonable care, skill, and caution in managing assets. An executor or administrator is held to a “prudent man” standard, which is lower than a “prudent investor.” Assets must be sold at proper prices and on proper terms.
Duty of Impartiality
A fiduciary must not favor any beneficiary over another. the fiduciary must treat himself no better than any other beneficiary. Lindlaw.com
NO, it’s too much. How do I get out of this obligation?
A renunciation is a legal document that states the person named in the will as executor will not act as executor for the estate. Sign the renunciation form or petition and file it legal Zoom * Salvolaw.com * Legal Zoom *
Can a trustee resign?
Yes. If a trustee wants to resign, s/he can do so:
- As explained in the trust document;
- If the trust is revocable, by getting the person who has the power to revoke the trust to consent;
- If the trust is irrevocable, by consulting with all adult beneficiaries; or
- By getting a Court order after filing a petition asking the Court for permission to resign.
Unless the beneficiaries say they do not want one, the trustee must file an accounting of all trust transactions while he or she was acting as trustee. Santa Clara Court *
What if the acting trustee dies or resigns or can no longer be the trustee?
If a trustee dies or resigns, is conserved or is declared “incompetent” by a court, or files for bankruptcy, then the trustee can no longer act as trustee and must be replaced.
Some trusts have two or more co-trustees and the trust may say that the remaining co-trustee will be the sole trustee, or may say how a new trustee will be appointed.
If the vacancy cannot be filled, then a trust company may agree to serve if all adult beneficiaries agree. If that fails, any person who has a financial stake in the trust or any person named as trustee can file a petition to have a trustee appointed.
Any beneficiary who is 14 years of age or older can nominate a trustee, even though a minor under the age of 18 is not legally qualified to serve as trustee. Santa Clara Court *
What if the responsibilities are too much for me?
Consider hiring an attorney, bookkeeper, accountant or corporate trustee to help you. (A corporate trustee can manage the investments and do the recordkeeping.) If you feel you cannot handle any of the responsibilities due to work, family demands or any other reason, you can resign and let the next successor trustee step in. If no other successor trustee has been named, or none is willing or able to serve, a corporate trustee can usually be named. * Estate Planning.com *
california trust estate and probate litigation.com Excellent information, but their website is sometimes difficult to navigate. Excellent video’s
Beneficiary's right to know
CA Probate Code §16060 The trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration.
(a) A trustee shall provide a true and complete copy of the terms of the irrevocable trust, or irrevocable portion of the trust, to each of the following:
(1) Any beneficiary of the trust who requests it, and to any heir of a deceased settlor who requests it, when a revocable trust or any portion of a revocable trust becomes irrevocable because of the death of one or more of the settlors of the trust, when a power of appointment is effective or lapses upon the death of a settlor under the circumstances described in paragraph (3) of subdivision (a) of Section 16061.7, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of a contingency related to the death of one or more of the settlors of the trust.
...The part of the intestate estate not passing to the surviving spouse, under Section 6401, or the entire intestate estate if there is no surviving spouse, passes as follows:
(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
(2) Any beneficiary of the trust who requests it, whenever there is a change of trustee of an irrevocable trust.
(3) If the trust is a charitable trust subject to the supervision of the Attorney General, to the Attorney General, if requested, when a revocable trust or any portion of a revocable trust becomes irrevocable because of the death of one or more of the settlors of the trust, when a power of appointment is effective or lapses upon the death of a settlor under the circumstances described in paragraph (3) of subdivision (a) of Section 16061.7, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of a contingency related to the death of one or more of the settlors of the trust, and whenever there is a change of trustee of an irrevocable trust.
(b) The trustee shall, for purposes of this section, rely upon any final judicial determination of heirship. However, the trustee shall have discretion to make a good faith determination by any reasonable means of the heirs of a deceased settlor in the absence of a final judicial determination of heirship known to the trustee.
§16061.7. (f) The notification by trustee shall be served not later than 60 days following the occurrence of the event requiring service of the notification by trustee, or 60 days after the trustee became aware of the existence of a person entitled to receive notification by trustee, if that person was not known to the trustee on the occurrence of the event requiring service of the notification.
(a) A trustee who fails to serve the notification by trustee as required by Section 16061.7 on a beneficiary shall be responsible for all damages, attorney’s fees, and costs caused by the failure unless the trustee makes a reasonably diligent effort to comply with that section.
(b) A trustee who fails to serve the notification by trustee as required by Section 16061.7 on an heir who is not a beneficiary and whose identity is known to the trustee shall be responsible for all damages caused to the heir by the failure unless the trustee shows that the trustee made a reasonably diligent effort to comply with that section. For purposes of this subdivision, “reasonably diligent effort” means that the trustee has delivered notice pursuant to Section 1215 to the heir at the heir’s last address actually known to the trustee.
(c) A trustee, in exercising discretion with respect to the timing and nature of distributions of trust assets, may consider the fact that the period in which a beneficiary or heir could bring an action to contest the trust has not expired.
Three Don’ts at a Trustee or Executor
How to remove a California Trustee
When a loved one dies AIG
Steps to settling an estate
Locating Important Papers