The Importance of Choosing the Right Estate Administrator

Glossary

Estate executor – An individual appointed by a probate court who is responsible for managing and administering an estate and is named as executor in the deceased’s will.

Estate administrator – An individual appointed by a probate court to manage and administer an estate when there is no will naming an executor, the named executor is deceased or otherwise cannot serve, including because they are disqualified or were suspended or removed.

Personal representative – An overarching term for a person who is responsible for administering an estate, encompassing the role of executors, administrators, and trustees. 

Testator – An individual who creates a will to be followed upon their death, explaining their wishes for the distribution of their assets to relevant beneficiaries.

Intestate succession – The legal process for guiding the distribution of assets based on state law when someone passes away without leaving a will.

Letters testamentary – Documents issued to an executor by a probate court that authorizes an executor or administrator to begin the estate administration process, either by following the will or state intestacy laws.

Introduction

As you grow older, part of the peace of mind you want is to make sure that your loved ones and family members are taken care of according to your wishes after you pass away. This does require work and pre-planning on your part, but if you take care and put effort into the front end, then you can rest easy knowing you have done your part to secure a better future for the people you care about the most. ​There are many things to consider when creating your estate plan, and one of the most important is understanding how to choose an executor to act as your estate administrator. 

The language and roles in estate administration can be confusing, so it’s important to clarify some terminology. An executor or estate administrator is the person who will handle the administration of the estate, also known as the personal representative. A personal representative is a broad term encompassing both executors and administrators, the person responsible for administering a deceased person’s estate and handling their affairs.

The roles of executor and administrator differ in a few ways. If you nominate a personal representative when you create your estate planning documents, that person is called the executor. If you have no will or do not name an executor in your will,  or the named executor is deceased or otherwise cannot serve, including because they are disqualified or were suspended or removed, then an administrator will be appointed by the court. Both administrators and executors must be empowered to act on behalf of the estate by the probate court, and neither may take any action on behalf of the estate until appointed by the court.

When creating a will, choosing an executor for your estate is essential for ensuring your estate assets are distributed to your beneficiaries and heirs as you intend. Understanding how to choose an executor to serve as estate administrator and what factors you should consider will ensure a smoother administration process, make sure your beneficiaries and heirs get their rightful inheritances, while upholding your intentions. 

Understanding the Role of a Personal Representative

A personal representative plays an integral role in the probate process. They have several duties that help ensure estate assets are managed and distributed appropriately after a testator passes away.

In cases where a decedent left a will, the executor named in the will usually will serve as personal representative, and they will manage the estate and distribute assets to ensure they fulfill the outlined wishes in the will. 

If the decedent did not leave a will, the personal representative will still work to fairly distribute estate assets to beneficiaries, heirs, and creditors according to state intestate succession laws. When following intestate succession laws, because there is no will, the personal representative is not guided by the intentions of testator, and instead is guided by controlling state intestacy laws and probate laws to ensure they act in the best interests of the estate.

Altogether, some of the responsibilities of a personal representative include:

  • Gaining approval from the probate court to initiate the probate administration process and notifying all beneficiaries, heirs, and creditors
  • Collecting all the assets of the deceased and approximating their value
  • Providing an accurate accounting of assets and debts to the probate court
  • Notifying potential creditors  to which the decedent owed debts based on a review of financial and tax records 
  • Soliciting creditor claims, assessing their validity, and settling the debts
  • Paying expenses like funeral expenses, appraisers’ fees, tax debts, medical bills, and other related expenses 
  • Requesting authority from the probate court to take actions like selling property and distributing assets
  • Distributing assets remaining after expenses and debts are paid to heirs or other beneficiaries according to the terms of a will or state intestate succession laws
  • Resolving disputes between heirs and beneficiaries through informal negotiation, settlement conference, mediation, or probate estate litigation  
  • Maintaining accurate records of finances, other assets, and actions to comply with fiduciary duties and state probate laws 
  • Accounting for transactions surrounding property, finances, or other assets to heirs, beneficiaries, and the state at least yearly or as reasonably necessary

Choosing an executor requires careful thought and consideration to ensure that all the above responsibilities are carried out effectively.

Once an estate executor has been selected, it’s crucial to formalize your decision in writing. This can be accomplished through a formal will or by creating a separate written statement in your handwriting and signed by you explicitly stating your choice of executor. Doing so will help effectively communicate your wishes, minimizing the likelihood of confusion or disagreements in the future.

Why Choosing an Executor is Crucial

An executor has many responsibilities and plays an integral role in effectively carrying out a decedent’s wishes and ensuring the smooth administration of the estate. Knowing how to choose the right executor for your estate is crucial for the following reasons.

Ensuring Efficient and Smooth Distribution of Assets

An estate executor is responsible for distributing all assets to the appropriate parties in line with the terms of a decedent’s will. The executor should exercise careful attention to detail to ensure they uphold the wishes of the testator while distributing all assets accurately, timely, efficiently, and cost-effectively..

A competent executor can help prevent delays in the probate estate administration process and ensure all assets are transferred to the estate beneficiaries in accordance with the will, or, where there is no will, to the intestate heirs, and follow probate legal processes—this usually involves transferring the title or deed from the testator to the beneficiary.

Minimizing Conflicts and Legal Complications

Choosing the right estate executor can be key to minimizing conflicts and potential legal complications. During probate, disputes may arise surrounding ambiguity in a will, an heir’s or beneficiary’s right to assets, creditor claims, lawsuits, or transactions entered into by the decedent or even the executor during the administration. Executors may have to navigate and resolve these disputes using methods such as informal negotiation, settlement conference, mediation, or litigation.

However, disputes are less likely to arise when a testator appoints a trustworthy individual to oversee the administration process and closely follow their fiduciary duty. A personal representative who upholds their responsibilities, follows probate court procedures and deadlines, and is communicative with all parties will minimize concerns among beneficiaries, heirs and creditors while complying with state probate laws.

An executor can reduce the likelihood of conflicts and legal contests by: 

  • Securing appointment as executor from the probate judge and receiving letters testamentary from the probate court
  • Ensuring all estate transactions are approved by the probate court
  • Carefully understanding the wishes of the testator and understanding the terms laid out in the estate planning documents
  • Maintaining detailed records of transactions surrounding the estate
  • Providing reports of transactions to the probate court, beneficiaries, and heirs at least annually and as reasonably necessary
  • Ensuring transparency through consistent communication with beneficiaries, heirs, and other interested parties throughout probate

Protecting the Interests of Beneficiaries

Beneficiaries have specific rights to an inheritance as outlined by a will or other estate planning documents. An executor ensures that these rights are preserved by understanding the terms of the will and working to uphold them—they should closely follow the wishes of the testator as they distribute assets among beneficiaries and safeguard assets for any vulnerable individuals, like minors or dependent adults.

With these responsibilities, it’s important to choose an executor who is impartial, responsible, and capable of making difficult decisions that prioritize the long-term well-being of all beneficiaries.

Key Factors To Consider In Choosing an Estate Executor

Because an executor has so many responsibilities, a testator should choose an individual with the professionalism and skillset to carry out these responsibilities appropriately. To ensure the best possible outcome for your estate administration process, you should consider the following traits. 

Trustworthiness and Integrity

An executor has control over all the assets of an estate when administering it—in some cases, these assets can be extremely valuable, such as multiple properties or expensive family heirlooms like jewelry or artwork. 

An estate administrator may responsible for managing all the following assets:

  • Real property
  • Bank accounts
  • Digital assets like cryptocurrency
  • Intellectual property
  • Mortgage payments
  • Life insurance policy disbursements
  • Investment accounts
  • Retirement accounts
  • Social security benefits
  • Valuable personal property, such as jewelry or artwork
  • Vehicles

It’s important to choose someone who you feel comfortable trusting with all the above assets. You must be able to rely upon this person to distribute these assets appropriately without mismanaging them or acting in their own self-interest.

You can often ensure trustworthiness by choosing an executor with experience in estate administration and a track record of positive testimonials or choosing an individual with whom you have a long history with. If you have additional concerns about an individual’s trustworthiness, you can also contact an estate administration attorney who can provide support in administering your estate.  To further protect your beneficiaries and heirs, you can always require an executor to be bonded or insured.

Financial Acumen and Organizational Skills

An integral part of the role of a personal representative is distributing assets to the designated beneficiaries and heirs as outlined by the estate planning documents or, where there is no will, in line with intestate succession laws. To distribute assets effectively, the executor should have keen organizational skills and competence in handling financial matters.

Marshaling assets, securing them, preparing them for distribution, and distributing estate assets requires great attention to detail to account for the value of assets, distribute the assets to the appropriate parties, and ensure the right steps for transferring ownership. Accurate accounting and reporting are also key factors. To close out the probate process, the personal representative will have to provide a detailed accounting of all disbursements and asset transfers for court approval.

Communication Skills

A personal representative is responsible for keeping all beneficiaries, heirs, and other interested parties in an estate reasonably informed about the estate administration and the transactions surrounding the estate. They are also expected to report to the probate court regarding financial matters, document and communicate estate asset transactions, and address potential conflicts that may arise among, beneficiaries, heirs, creditors and other interested parties. With these responsibilities, it’s important that any executor has strong communication skills to keep everyone informed and the probate process moving forward.

Family dynamics in a probate case can also be difficult to navigate, as probate can be a contentious and sensitive process. An executor’s communication skills should include the ability to respond and act with patience and empathy in difficult situations. This includes being able to make difficult decisions to uphold the wishes of the decedent and communicate why these decisions were made, even in circumstances where some may not fully agree.

Availability and Commitment

Estate administration can be an involved, lengthy and time-consuming process. This time commitment depends largely on the estate, its complexity, family dynamics, and the number of assets involved. The amount of work required for the full probate administration process can take a year, two years, or sometimes several years with the most complex estates. 

The personal representative will be tasked with numerous duties, which can take considerable time, such as overseeing the deceased individual’s assets and property, coordinating and communicating with beneficiaries, and addressing any legal or financial issues that emerge.

The process can take even longer if there are disputes in the process, delays in the administration process, unnecessary court hearings, or disputes over the language or terms of the will.

The process can be delayed by factors like: 

  • Taking control of family businesses, rental properties, etc.
  • Securing and protecting property
  • Coordinating appraisers to value assets
  • Filing petitions with the probate court to approve actions
  • Selling real estate properties
  • Resolving disputes between beneficiaries 
  • Soliciting and resolving creditor claims against the estate

In any case, it’s important that an executor has the time and availability to commit themselves to handling the estate administration process while being responsive to any number of delays that can occur.

Having the executor reside near where the administration will occur, for example, can be beneficial, as certain responsibilities, like managing physical property with regular upkeep and maintenance, checking mail, and attending court sessions, are often necessary, although having local counsel can help alleviate these issues where an executor is not local.

Knowledge of Legal and Financial Procedures

Personal representatives must be able to follow procedures required by the probate court and state law for carrying out estate administration. A representative must also be aware of all deadlines involved in probate administration as specified by California state law. 

These procedures include: 

  • Lodging with the court the decedent’s will within 30 days of the decedent’s death
  • Filing with the probate court the petition for probate to be appointed as executor of the decedent’s estate
  • Securing letters testamentary from the probate court so the executor has the authority to begin the probate administration
  • Notifying beneficiaries and heirs of the probate process
  • After appointment as executor, notifying known creditors within four months of receiving letters testamentary from the court
  • Maintaining detailed accounting of transactions surrounding the estate and its assets
  • Coordinating with the probate referee to have estate assets valued
  • Processing creditor claims and paying those deemed to valid
  • Submitting a final accounting of assets and transactions to the probate court for approval 
  • Petitioning the court for approval to distribute assets to beneficiaries and heirs

Understanding important legal and financial procedures is essential for following these steps properly and avoiding unnecessary delays and costs. 

With all of the responsibilities and nuances involved in the process, it is often a good idea for a personal representative to work with an experienced estate and probate administration attorney. An attorney can provide valuable guidance and ensure peace of mind throughout several steps in the administration process, ensuring they understand their legal duties, the necessary steps in gaining approval from the probate court, and any reporting requirements outlined by state law.

An estate planning attorney can assist you in setting up a clearly worded will and living trust that defines who gets what, how all your assets are to be distributed, and by whom. An experienced estate planning attorney can help you make sure what you intend to happen to your estate is what happens.

An estate administration attorney will know exactly what steps to take regarding the disbursement of your assets. Acting as a neutral third party, they can minimize any family squabbles and legal challenges, allowing for a quick and smooth process.

Steps To Follow When Choosing an Estate Executor

With the importance of the estate executor role, testators should do their due diligence in the selection process. To choose an effective executor, you should consider engaging in thoughtful diligence to find the right fit. To select an estate executor, consider the following steps:

  • Identifying potential candidates – Potential candidates may include family members, friends, or professional advisors. In this step, consider the candidates’ personality and skill sets to narrow down the most practical options.
  • Conducting interviews and assessments – Interviews and assessments will allow you to better assess their suitability for the role. Be sure to include relevant questions about their desire and availability to serve, experience levels, approach to the process, and skill set.
  • Consulting with legal and financial advisors – Legal and financial advisors can help you narrow down your best option for your estate executor.
  • Making an informed decision – Once you have done your due diligence, you should weigh all the varying factors to determine the best executor. Consider the context of your case, what steps will be necessary to carry out the terms of the will, and who will best be able to fulfill these responsibilities.

By carefully evaluating each candidate’s skill set, experience, and approach to the role, testators can ensure that the chosen executor is well-equipped to fulfill their duties and carry out the terms of the will effectively.

Common Mistakes To Avoid When Choosing an Executor

Choosing a reliable executor is a crucial step in the estate planning process—however, it can be easy to brush off the importance of this process and instead choose the most convenient or obvious option. Avoid common pitfalls in this process by taking the following mistakes into account.

Overlooking the Importance of the Role

The need for an executor is more than just choosing a person for the title so that the probate process can move forward. This person has significant power in the administration of the estate and the assets that go along with it, so it’s important that a testator understands this before choosing just anyone for the sake of satisfying a requirement.

An executor must also handle important tasks like paying taxes on the estate, reporting to the probate court, communicating with all beneficiaries, and more—all of these have important implications regarding the estate. A testator should choose someone they know can handle these responsibilities and live up to the importance of the tasks.

Choosing Someone Based Solely on Personal Relationships Rather Than Qualifications

Again, an executor plays the central role in the estate administration process, so it’s essential that a testator is careful, thoughtful, and selective in who they choose. In many cases, testators feel that it is easier to choose someone they know rather than undergo a diligent selection process.

However, this can backfire if an executor does not have the right qualifications to carry out these responsibilities. To ensure the proper administration of an estate, a testator should carefully consider the necessary responsibilities and choose someone who can carry them out. 

In some instances, you may choose a family member to serve as executor. This approach has pros and cons—the biggest being that disgruntled family members could challenge how the estate is disbursed. Additionally, family members are not always impartial and family dynamics can play a role in potential issues or disputes with favoritism or bias.

However, if you choose a professional fiduciary to administer your estate, like an accountant, financial advisor, private or institutional fiduciary, private professional fiduciary, or attorney, you can remove much of the emotion and challenges that may otherwise present themselves after the fact.

Failing To Consider The Potential for Conflicts of Interest

Your estate is involved, making it crucial to be extra cautious when choosing an executor. Unfortunately, humans can sometimes be prone to acting in their own best interests rather than those of the estate they’re expected to serve.

Conflicts of interest can include:

  • Favoritism – The executor may exhibit favoritism toward certain beneficiaries, unfairly allocating assets or privileges to them over others.
  • Making personal investments – Engaging in personal investments using estate funds or making decisions that primarily benefit the executor’s financial interests rather than those of the estate.
  • Self-dealing – The executor may engage in transactions where their personal interests conflict with those of the estate, leading to self-serving outcomes.
  • Biased decision-making – Allowing personal biases or preferences to influence decision-making, resulting in outcomes that deviate from the objectives outlined in the will.
  • Acting without impartiality in disputes among beneficiaries – Failing to act impartially in resolving inheritance disputes among beneficiaries, potentially exacerbating conflicts or unfairly favoring certain parties.

These conflicts of interest can result in an unfair distribution of assets, mismanagement of the assets, or decision-making that goes against the interests outlined in the will.

It’s crucial that a testator is selective in the process of choosing an executor and takes extra precautions to choose an individual who can remain unbiased in the administration process. If possible, aim to appoint an individual who is separated from any familial conflicts and unlikely to play favorites with beneficiaries.

What if the Court Appoints an Administrator?

When a loved one passes away without leaving behind a will in California, an administrator is appointed by the court to serve as a personal representative. The law follows a priority list for who should serve—the surviving spouse, children, or grandchildren are at the top of the list. 

It is not uncommon for heirs to disagree on who should serve as the personal representative. It’s crucial to assess who in the family is best equipped to handle the complexities of estate administration. This might mean considering individual factors like financial acumen, organizational skills, and ability to remain impartial. 

In cases where familial relationships are strained, suggesting professional fiduciaries can help navigate potential conflicts and ensure the estate is managed efficiently and fairly. Ultimately, the goal is to choose an estate administrator who can honor the wishes of the deceased and handle the responsibilities with diligence and integrity.

Challenging the Court Appointed Administrator

When an individual applies to be the estate administrator without the family’s consensus, it can create tensions and raise concerns about the process’s fairness and transparency. Family members may rightfully question the motives behind the individual’s decision to take on this role. 

In such cases, it’s important for concerned parties to understand their legal rights and options. They may have grounds to challenge the appointment of the administrator, especially if there are doubts about their ability to fulfill their duties or suspicions of bias or ulterior motives. 

In these situations, you should consider gathering evidence surrounding your concerns about the administrator fulfilling their duties and consult an attorney about how to file an administration petition contesting the appointment. 

If you have concerns about an administrator’s potential appointment, it’s critical to navigate this process with careful consideration. Schedule a free consultation with RMO Lawyers if you are weighing the pros and cons of challenging the administrator to ensure your loved one’s wishes are upheld.

Secure Your Legacy with the Right Estate Executor

Probate is no small matter, as it has significant implications for an estate and its heirs. An estate executor has a key role in ensuring the wishes of the decedent are carried out effectively. Therefore, it’s important to choose an executor who has the expertise, mindset, and professionalism to take on this role.

If you have been named executor in a will or the court has appointed you as administrator, your role comes with great responsibility. At RMO Lawyers, we use our decades of experience to support personal representatives in understanding their duties and responsibilities to the estate so they can uphold the interests of the decedent while remaining in line with state laws around asset distribution.

Schedule a consultation with our team at RMO Lawyers to learn more about estate administration and how an attorney can help you navigate the process.

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About the Author

Meagan A. Paisley, Attorney

Meagan A. Paisley is an attorney with RMO LLP, where she leads the firm’s client relationship team.  In this role, Meagan guides clients and community team members with a warm, empathetic and attuned approach that provides a strategy and a sense of relief to those embroiled in emotional and complex probate, trust, estate, conservatorship and inheritance disputes.

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