The entire surviving family feels a loved one's passing. But when it comes to carrying out the decedent's final wishes, not everyone has an equal say.
In many cases, only one person is responsible for administering the will - the executor or personal representative.
Being named as the executor or personal representative can be overwhelming at first. You are suddenly in charge of carrying out your loved one's wishes, they expressed through their estate planning documents.
While this is an honor, the will is a legal document that gives you certain powers and legal duties to carry out.
If you are or will be in charge of administering a will in California here are some things you should know.
Do You Need to Hire an Attorney in California
You have no legal obligation to use an attorney to administer the estate or trust.
But, California estate and trust laws can seem complex and hard to follow. That’s why many people use a qualified California estate attorney to make things easier and help them follow all the necessary procedures.
Remember, estate and trust lawyers have years of experience and do this every day. You may only do this once or twice in a lifetime. Carrying out your loved one's last wishes and distributing their lifetime of assets is not a time when you should be struggling to learn how the law works.
Your Role in Administering a California Will or Trust
Part of your role administering a will includes gathering the deceased's accounts and property information, paying debts, managing the money and property, then distributing the money and property to the chosen individuals or charities named in the will.
The same is true of trust administration. The trustee, and typically the trustee alone, is in charge of managing, investing, and distributing the trust's accounts and property according to the instructions in the trust document.
You are responsible for ensuring that the trust and estate administration goes according to plan as laid out in your loved one's will or trust, possibly with the assistance of a lawyer.
The Attorney-Client Privilege Does Not Extend to Family Members
You may choose to involve other family members to support you in your meetings with the attorney, especially in the beginning phases of the administration. Sometimes, your responsibility seems overwhelming.
Wills and estates are often the cause of great family tension and arguments. Bringing others to meetings can provide greater transparency and make all the parties feel included.
But the attorney–client relationship extends solely to you. The attorney has a legal duty to you as the executor or administrator. The attorney-client relationship does not include other family members, no matter how close or involved they are.
Key Parties in California Wills and Trusts
Wills and trusts are estate planning tools that allow people to transfer their accounts and property to others when they pass away.
Larger California estate plans might include both a will and one or more trusts. Although wills and trusts are different types of documents, they use similar language to identify the key parties involved in distributing the loved one's assets.
Understanding the key parties gives you a better understanding of everyone's role in the administration.
Wills and trusts are estate planning tools that allow people to transfer their accounts and property to others when they pass away. It is possible to have both a will and a trust that are part of a larger estate plan. Although wills and trusts are different kinds of documents, they use similar language to identify the key parties involved in asset distribution.
Understanding the key parties will help you to better understand everyone’s role in the administration.
- Testator - The person who creates a last will and testament to be carried out upon their death.
- Trustmaker - (also called a grantor, settlor, or trustor) - The person who creates a trust.
- Executor - (or executrix, sometimes called a personal representative). - The person appointed to fulfill the wishes of the testator in accordance with their will. Usually, the testator chooses the executor when they create a will.
- Trustee - The person who administers the trust on behalf of the trustor.
- Beneficiary - A person (or business entity, such as a charity) who receives accounts or property from a will or trust.
- Heir - Someone entitled to receive some or all of the decedent’s property under a state’s default laws when the decedent dies without a will.
Who is the Fiduciary?
A fiduciary is somebody granted legal authority to act in the interests of another. This is an important role that comes with legal duties and obligations.
Executors and trustees are by their very nature fiduciaries. They have been given legal authority by the testator, trustmaker, or the court to carry out the distribution of the testator’s or trustor’s estate accounts and property.
A fiduciary’s legal duty, known as a fiduciary duty, extends beyond the estate.
Fiduciaries must act in the best interests of beneficiaries.
Whom Does the Attorney Represent?
As the executor or trustee, when you hire an attorney to help you with the estate or trust administration, you are the client.
The attorney-client relationship extends solely to you. The attorney has a legal duty to you and can only take direction from you.
You might also be a beneficiary of the will or trust that you are administering. You need to understand that although the attorney represents you only in your capacity as the executor or trustee.
The attorney is there to assist you with the administration. They are not there to advise you on your rights as a beneficiary under the will or trust.
Also, you may allow a family member to attend your meetings with the attorney. At or before the meeting, the attorney will likely explain to your family member that they represent only you as the executor and no one else.
Keeping Beneficiaries in the Loop
Family members and beneficiaries want to know what’s going on with the estate. What does the will say? Who gets what? Did I inherit anything? When is the distribution?
This normal curiosity is just human nature.
But California wills and trusts can be complex and difficult to understand - and sometimes even more challenging to explain to well-meaning but curious family members.
Most executors and trustees in California choose to hire an attorney to help them carry out the terms of these legal documents. And, as an executor or trustee, you owe a fiduciary duty to beneficiaries to communicate with them and keep them reasonably informed about the progress of the administration.
Sometimes, it makes sense to invite beneficiaries to your meetings with the attorney, especially if the estate or trust administration is very complex. Allowing the attorney to explain and answer questions is always easier and more accurate than trying to remember everything the attorney told you.
During the meeting, the attorney can answer basic questions from beneficiaries about what to expect during the administration. But, the attorney can't give legal advice to the beneficiaries or act on their behalf.
Sadly, some beneficiaries become contentious and challenge the administration of the will. They often hire their own attorney, who can then communicate directly with the estate's attorney. This is not the time for you to be without a qualified California attorney helping you with the estate and trust administration.
What Should You Do Next?
As an executor or trustee, you want to carry out the wishes of your loved one.
But you also have to deal with the following all applicable California estate laws and procedures, legal filings, gathering documents, communicating with beneficiaries, paying bills, paying taxes, administering the estate, and more.
It is overwhelming.
Call for a free consultation and let us help.
San Diego Legacy Law is a qualified California law firm specializing in estate and trusts.
Call today for a free consultation and learn your next best steps.