Estate and probate administration is necessary for ensuring a fair distribution of assets to a decedent’s heirs. Having a trusted probate administration attorney by your side throughout the process can ensure you get the support and resources you need for a smooth, equitable result.
Our team at RMO Lawyers has two decades of first-hand experience in handling the intricacies of wills, trusts, and estate settlements to provide guidance in this process.
Estate and probate administration is the process of distributing assets from a deceased individual to their beneficiaries, heirs, and other interested parties.
Following a person’s passing, the administration of their estate can be a time-consuming process, spanning several months or even years. The duration depends on factors such as the estate’s complexity, the number of beneficiaries, and the types of assets included. Conducting probate administration can entail a significant amount of work, particularly for estates with intricate arrangements.
Typically, the estate or probate administration process is carried out using a decedent’s estate planning documents, like a will. However, if there is no will, the estate may be distributed amongst the appropriate beneficiaries according to state law.
The person who is responsible for settling an estate is a “personal representative.” Executors are personal representatives who are named in a will. In contrast, administrators are not named in a will because either there is no will or the named executor(s) of a will deceased or otherwise cannot serve. Both executors and administrators must be appointed by a court to have any authority to act on behalf of the estate. In trust administration, this process is handled by a trustee. In handling tasks surrounding the administration of the estate, these parties have a responsibility, known as a fiduciary duty, to act in the best interests of the estate and its beneficiaries.
Processes involved in the administration of an estate include:
It’s important to define the terminology and players involved in estate and probate administration.
Will: A legal document outlining asset distribution and other instructions upon a person’s death.
Estate: Total property, assets, and liabilities left by a deceased individual.
Assets: Property, belongings, or resources owned by a person or entity.
Probate: Legal process validating a will, settling debts, and distributing assets under court supervision.
Personal Representative: Broad term encompassing both executors and administrators managing a deceased person’s estate.
Executor: Person named in a will to carry out its provisions and administer the estate, who must be appointed by a court to have any authority to act on behalf of the estate.
Administrator: Person not named in a will because either there is no will or the named executor(s) of a will deceased or otherwise cannot serve, who must be appointed by a court to have any authority to act on behalf of the estate.
Decedent: Deceased individual whose estate is being administered.
Beneficiary: Person or entity designated to receive assets or benefits from an estate.
Testate: Refers to a person who dies having left a valid will, which typically outlines how their property and assets should be distributed after their death.
Intestate: Refers to a person who dies without having made a valid will, leading to their estate being distributed according to the laws of intestate succession
Heir: Person entitled to receive property or assets from a deceased person under intestate succession laws.
Estate and probate administration is a complex process that involves several detailed legal procedures and requirements. Our team at RMO Lawyers offers support in all the following scenarios.
Executors and administrators both play important roles in estate administration. Their duties include handling assets, reporting to beneficiaries, and ensuring a fair distribution of assets while acting in the best interests of the estate. Our attorneys offer support and guidance in navigating these responsibilities so that personal representatives can fulfill their duties.
Before proceeding with any estate-related tasks, one of the primary responsibilities of an executor upon the death of the individual is to determine if there is a will. If one exists, interpreting this legal document can pose challenges, particularly without legal expertise or a basic understanding of estate planning principles. In our experience, wills often contain ambiguous language, which should not be interpreted independently. A qualified attorney can help you understand what is intended or seek the court’s intervention to get clarity about the true meaning of the language.
In California, under Cal. Probate Codes §8000 and §8100, initiating probate proceedings involves taking important steps like filing a petition for probate with the court and notifying any parties with an interest in the estate.
In California, even if you have a will, the estate will go through the probate process. You can avoid the probate court process, only if you have a trust in place.
In Texas, just as in California, if you have a will, you will still need to go through probate proceedings.
In both California and Texas, probate can only be avoided for estates valued under a certain threshold or that consist primarily of exempt property.
Depending on your jurisdiction, RMO Lawyers will guide you in taking the necessary steps to start the probate process.
An inventory of assets is essential for understanding what assets a decedent left behind and an appraisal provides a detailed valuation of these assets. This process involves thorough documentation to ensure a fair distribution of the estate. Our lawyers offer guidance for accurate reporting and fulfilling your legal responsibilities in this step.
If a decedent owed debts at the time of their passing, then part of the assets tied to the estate must be reserved for resolving these debts with creditors. Our lawyers will assist in addressing creditor notifications, navigating claims against the estate, handling negotiations, and minimizing liabilities.
Throughout the administration process, executors and administrators will encounter significant decisions regarding the estate, including whether to purchase or sell real property and what to do with investments. While some decisions necessitate court approval, others do not.
Our attorneys can ensure thorough consideration of all factors and aid in the decision-making process.
Asset distribution is an essential component of estate administration, ensuring that all beneficiaries receive a fair allocation of assets in line with the interests of the estate planning documents. Our attorneys work to understand the intentions of the decedent and oversee the rightful distribution for all beneficiaries involved.
Common disputes like disagreements over entitlements to assets and concerns around the legitimacy of a will can arise during the probate process. Oftentimes, disputes occur when the beneficiaries or family members of the deceased disagree on how to distribute the estate, including what happens to any real estate or other assets. Our administration team works hand in hand with our litigation attorneys to help address these disputes and controversies through methods like mediation and arbitration or the court’s intervention, all while maintaining sensitivity around the situation to preserve family dynamics.
Due to the many complexities of the probate process, legal guidance is a valuable resource in understanding the estate and probate administration process and necessary steps. Our lawyers will offer our decades of experience to ensure a smooth implementation of the administration process in line with state law and the intentions of the estate planning documents.
In the absence of a will, the court typically appoints an administrator to manage the estate. This duty usually falls upon a close relative who is willing and able to undertake the responsibility. While similar to an executor’s duties, the administrator must adhere strictly to the laws of intestate succession.
The surviving spouse is usually the first choice for the role of administrator. However, if no spouse exists or they decline the task, the court selects an appropriate candidate.
In cases where no will exists and no heirs are known, a public administrator may intervene to oversee estate management and search for potential heirs. If no heirs can be identified, the decedent’s property may ultimately revert to the state.
Following the appointment of an administrator or public administrator, the process of estate administration begins. With intestacy, the state laws specify the priority order for distributing assets among surviving relatives, such as spouses, children, parents, and siblings.
Acting as executor or administrator comes with fiduciary duty. A fiduciary duty is one of the most demanding obligations. It requires an executor, administrator, or personal representative to act with the utmost good faith and loyalty toward the beneficiaries of the trust or probate estate they are administering.
To avoid a breach of duty claim, fiduciaries must adhere to specific duties, including:
Hiring a qualified and experienced estate and probate administration attorney before making decisions related to the estate, reduces the likelihood of making decisions leading to a breach of fiduciary duty claim.
Guardians and conservators have unique responsibilities in the estate and probate management processes to ensure the best interests of the conservatee. Depending on the role of the ward or conservatee within the estate, a guardian or conservator may need to step in to ensure their rights are upheld or any roles they are no longer capable of fulfilling. For example, if a conservatee was previously named as executor of a will, but is no longer capable of serving, a conservator may step into their shoes and act or decline the role on their behalf. Our attorneys can help protect their interests or assist in fulfilling the duties or the declination of any role.
Estate and probate administration is a complex process with many nuanced legal requirements and procedures involved for managing the estate and fulfilling the wishes of the trustor or testator.
While our estate and probate administration team is ready to support you through the basics of administration, our litigation team is standing by, ready to get involved with issues that may require the court’s intervention.
At RMO Lawyers, our litigation team may provide support in all the following scenarios.
Will contests can arise due to concerns around the interpretation of a will or disagreements with the provisions of assets. Our attorneys take a detailed, compassionate approach to navigate these disputes through mediation and potentially litigation.
Estate administration can lead to disputes and contests surrounding the distribution of assets or the terms laid out in estate planning documents. Our estate litigation attorneys at RMO have extensive experience in the courtroom and demonstrate a firm commitment to our client’s interests to bring a resolution that secures access to one’s rightful inheritance.
It’s important to note that, in California, probate lawyers’ fees are largely covered by the estate itself, sparing beneficiaries from any personal financial burden.
See our probate calculator to determine fees in California.
In California, under the Cal. Probate Code §10800, for ordinary services the personal representative and their attorney are compensated the same as outlined in the calculation above or as follows:
For any estate over $25 million, the court will determine a reasonable amount.
Learn more about ordinary vs extraordinary fees.
In Texas, the estate typically pays the probate attorney’s fees and other associated costs out of its assets. These fees are considered administrative expenses of the estate and are generally paid before any distributions are made to the beneficiaries. The specific costs and fees can vary depending on the complexity of the probate process and the services provided by the attorney.
To determine what an estate and probate administration attorney will cost and if the estate will cover the expense, you should consult with a qualified RMO attorney.
Estate and probate administration is a nuanced process, and navigating the legal processes alone is not easy. The support and guidance of a compassionate, experienced attorney can make all the difference in ensuring that the assets of an estate are effectively administered and managed while maintaining legal compliance.
You should consider contacting an estate administration attorney when:
If you have any questions regarding the administration of an estate or how to approach the probate process, schedule a free consultation with us at RMO Lawyers. Whether you are an executor seeking support in understanding legal duties or a beneficiary looking to ensure access to your rightful inheritance, we are here to help.
RMO has a proven track record of protecting people and defending legacies.
The estate and probate administration process can affect anyone with an interest in an estate, from heirs with a stake in the inheritance to the executors responsible for administrating the assets. Our lawyers at RMO represent all the following clients in the administration process.
Beneficiaries have designated rights to assets in an estate as outlined in estate planning documents. Our team at RMO Lawyers will represent beneficiaries and provide guidance in the probate process to secure their rightful inheritance during the administration process.
Heirs to a decedent may disagree with their allocated provision of a decedent’s assets or raise concerns about the provisions provided to other interested parties. Our attorneys at RMO can represent heirs in trust or will contests to help them secure their rightful inheritance.
Trustees have important legal responsibilities in their role of administering an estate as outlined in a trust. RMO Lawyers can support trustees in understanding their legal responsibilities and fiduciary duties during the administration process and navigate any potential disputes along the way.
Successor trustees who fulfill the role of a trustee can seek a lawyer to understand their responsibilities in the role or to protect the interests of an estate if they uncover any acts of misconduct or wrongdoing from the previous trustee in the role. RMO attorneys can support successor trustees on all sides.
Creditors have an important stake in the administration of assets from an estate as they seek compensation for debts owed by a testator. Our estate administration attorneys at RMO can help creditors assert their claims during the process and secure access to the debts they are owed.
Executors have a vital responsibility in probate and estate administration, as they must resolve disputes, ensure a fair distribution of assets, and uphold the interests of the decedent. RMO Lawyers will support executors in fulfilling their legal responsibilities, resolving any legal disputes, and upholding their fiduciary duty.
Other interested parties in the estate and probate administration process include guardians, conservators, and other organizations listed as beneficiaries. At RMO Lawyers, we support interested parties in navigating the appropriate legal procedures to ensure a fair distribution of assets from the estate and protect the interests of the testator.
Be advised that the RMO Client Relations Team will reach out prior to your scheduled time, as our policy requires that we gather additional information concerning the parties to your case before we can confirm your consultation. In the event that we are unable to reach you, regrettably, we will need to cancel your requested consultation.
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In California and Texas, the duration of probate administration is similar. A straightforward probate process typically takes about a year to complete. However, complex estates or those facing challenges such as disputes among heirs, creditor claims, or tax issues can prolong the process significantly, potentially lasting several years.
Working with an experienced probate attorney who can guide you through the process, help streamline proceedings, and address any challenges that may arise, which can help expedite the probate administration process.
Assets subject to probate generally include assets solely owned by the deceased individual and not held in a manner that avoids probate. Some common examples of assets subject to probate in both states may include:
However, certain assets may be exempt from probate or pass outside of the probate process, such as:
It’s essential to review the specific details of each asset with a qualified attorney to determine whether it is subject to probate or passes outside of probate in California or Texas.
This depends, first, on whether there is an estate plan in place that names a specific person to serve as the personal representative. If this person is named, they have a priority to serve as the personal representative.
If there is no estate plan in place and multiple people want to serve as personal representative of an estate, they are able to do so together, if they are willing to work together. If they are willing to work together, they may serve as co-administrators of the estate. If they are not willing to work together, they will need to file competing petitions and litigate over who is the best person to serve. California statutes give priority to spouses of the decedent, then to the children of the decedent, and so on down the line of succession. A judge will often decide who may be administrator of the estate based on their priority to serve, all other things being equal. If a person with priority is unfit to serve as personal representative for any reason, another person eligible to serve as personal representative may file a competing petition and request to be appointed in light of the circumstances.
If you would like to be appointed over another person regardless of priority, you should seek an attorney like the ones at RMO who can help you file a competing petition and litigate against a person either does not have priority over you or is otherwise unfit to serve.
Yes, both in California and Texas, executors and administrators are generally entitled to receive compensation for their work in administering the estate. The amount of compensation is typically determined by state law or the terms of the will (if applicable) and is subject to court approval.
In California, the statutory fee schedule for compensation of executors and administrators in California is outlined in the Cal. Probate Code, Sections 10810-10814. However, executors and administrators may also petition the court for additional compensation under California Probate Code Section 10811 if they believe that the statutory fee is inadequate given the circumstances of the estate.
In Texas, the compensation for executors and administrators is governed by the Texas Estates Code, Sections 352.001-352.052, which states that executors and administrators are entitled to receive a reasonable fee for their services, which is typically based on a percentage of the estate’s value.
However, the court may adjust the compensation if it deems the requested fee to be excessive or inadequate.
These statutes serve as a broad guide in determining compensation for executors and administrators in both California and Texas. It’s advisable for executors and administrators to consult these statutes with a probate administration attorney to ensure compliance with the applicable laws and procedures.
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