Expert Probate & Trust Services by Grossman Real Estate: Trust Us for Your Estate Needs.
When someone experiences the loss of a family member or friend, it can lead to legal proceedings related to their property. These legal processes can be time-consuming and complex. Seeking the assistance of a professional to guide you through these legal matters can help you avoid frustrating issues and delays that may otherwise arise. With my dual expertise as an attorney and a real estate broker, I understand the multitude of questions and concerns that need clarification. As a Realtor experienced in probate court sales and a probate attorney, Marc Grossman brings exceptional knowledge and experience to Grossman Real Estate clients.
As the executor of a will, you bear the responsibility of being honest and impartial. Your tasks include reviewing the deceased person’s will and overseeing their estate to ensure that all debts and taxes are settled before distributing the remaining assets to the beneficiaries in accordance with the deceased’s wishes. These responsibilities are considered fiduciary duties, representing the highest duty imposed by the law on one individual to act in the best interests of another. An executor carries a multitude of obligations, all subject to the scrutiny and jurisdiction of the probate court.
As an executor, you must make initial determinations, including the type of legal proceeding required and who must be notified. In addition to informing relatives to a certain degree, you may also need to notify government agencies such as Medicare, Social Security, or the Post Office. Furthermore, you must gather all assets while managing the estate’s property, taking on the responsibility of paying the estate’s debts and taxes for the final year of the decedent’s life. Determining the rightful heirs, providing proper accountings, and ultimately distributing any remaining property after settling the estate’s expenses are also your duties. As an executor, you are responsible for obtaining the necessary documents for the proper administration of the estate, including the last will, income records, bank statements, asset and debt schedules (including medical bills), investment account statements, appraisals, deeds, titles to real estate, and possibly personal property documents.
A deceased individual may appoint someone as their personal representative for their estate. However, even when a deceased person has made such an appointment, it requires court approval and can be contested by any interested party. A personal representative’s duties extend beyond those of a will executor and are mainly defined by California Probate Code Section 8404. This code also outlines a personal representative’s liabilities and allows the court to require them to post a bond to serve in that capacity.
To ensure that a personal representative fully comprehends their responsibilities and liabilities, the court will have them sign an acknowledgment of receipt of the “Duties and Liabilities of Personal Representative” in Probate Code Section 8404, which includes a statement that “An attorney is best qualified to advise you about these matters,” to protect the personal representative from blame. A personal representative’s scope of responsibilities encompasses all the real and personal property assets of the estate, all outstanding estate taxes and debts, as well as obligations to the beneficiaries and the court, including notifications, accountings, inventories, appraisals, expenses, and distributions. A personal representative must provide the legally mandated notices to all creditors within four months of their appointment.
A personal representative must responsibly manage the estate’s property and investments, which involves keeping funds in interest-bearing and insured accounts, managing risks and investments to fulfill their fiduciary duties to the beneficiaries, and overseeing any real estate assets of the estate. Commingling of accounts is prohibited, and court approval is necessary for expenditures and investments. The personal representative must also locate and take possession of all estate property and assess its value, subsequently filing an inventory and appraisal with the court, all within a statutorily prescribed time frame. Any changes in ownership must be executed through the appropriate deeds, filings, and recordings.
The straightforward answer is no, you are not required to have a Realtor or a Lawyer, and you can handle the processes independently if you are capable. However, probate involves statutes, regulations, rules, timelines, and requirements that must be navigated, and failure to do so correctly can result in severe consequences. While other probate realtors can provide some information about the process, they cannot offer legal advice because they lack the qualifications. Probate real estate matters come with distinct requirements for forms, disclosures, pricing criteria, and notices. If legal issues or complications arise in the sale, a real estate broker cannot provide legal advice and would recommend that clients consult a real estate attorney. Similarly, if you have a probate attorney, they may not have all the answers regarding the real estate transaction and related disclosure requirements that a real estate broker could provide. While no one is obligated to engage either an attorney or a Realtor for a real estate transaction, Real Estate Broker and Attorney Marc Grossman can offer assistance that goes beyond what other Realtors can provide. If you are currently or will be an executor of an estate, you bear the weight of dealing with all real and personal property.
Standard Probate Fees for the Attorney and Personal Representative
The minimum fee for a probate attorney is determined by Probate Code § 10810 and is calculated as a percentage of the total value of the probated estate. The formula defined in Probate Code § 10810 is as follows:
For the purpose of this provision, the estate’s value accounted for by the personal representative includes the total appraisal value of the property in the inventory, plus gains over the appraisal value on sales, and receipts, minus losses from the appraisal value on sales, without considering encumbrances or other obligations on estate property as per Probate Code § 10810(b). Mortgages and other loans are not factored into the fee calculation, nor are disbursements for debts or expenses.
Both the probate attorney and the personal representative are entitled to receive this fee, and the court has no authority to reduce the amount of these fees. The exception to this rule is if the personal representative has unreasonably delayed the estate’s closure or engaged in mismanagement of the estate, in which case the Court may impose a surcharge. Additionally, any fees received by the personal representative will be recorded as income on their personal tax return, so they may opt not to take a fee if they expect to receive property from the estate as an inheritance, which is not considered income.
Fees cannot be paid without a Court Order, though reimbursement for expenses advanced by the Personal Representative or the Attorney, such as filing fees, publication costs, etc., may be reimbursed without the need for a Court Order.
Extraordinary Compensation
Under California Rule of Court Rule 7.703, the Probate Court can grant extra compensation, referred to as extraordinary compensation, to both the Personal Representative and the Attorney for specific services rendered. The court must approve these fees before they can be disbursed. When awarding extraordinary fees, the court may consider the amount of statutory compensation to determine a fair and reasonable amount for extraordinary fees.
Examples of extraordinary services for which a personal representative may receive compensation include:
Examples of extraordinary services for which an attorney may receive compensation include:
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