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Who Moderates Or Handles The Probate Process?


This is usually done by a judge in the probate division of the court system. Often, their clerk will do the majority of the work so the person would be relying and trying to befriend those people when their case was sitting there in probate so they could try and see if they could get things fast-tracked.

Who Can Be Appointed As A Personal Representative?

Almost anyone could be appointed as a personal representative, and they would not necessarily have to be family members. Obviously family would be the first choice but anybody would be able to do this job. The person could choose anybody who was responsible and who could uphold their fiduciary duty, which is the highest duty available to anyone. They should also be able to carry out instructions as well as an excellent project manager who could get things done and close everything out.

Are Personal Representatives Compensated?

This goes both ways. If someone had documents in place, then they would either provide for a reasonable type of remuneration or it could be nothing at all if they were going to also be in the inheritance or if they were someone who would be inheriting things.

What Is The Executor And How Does That Differ?

The executor would be paid by statute so they would get a percentage of the probate deed. On a $500,000 gross estate, the probate fees would roughly be about $26,000 and the executor would be entitled to half of that. Everything would be scaled up depending on the size of the estate, and this would be set by statute AARP and American Bar Association and it would be between 4 and 10 percent.

What Happens If A Personal Representative Fails To Perform His Or Her Duty?

This would become a problem, because they would typically find themselves under challenges in the court system for breach of the fiduciary duty or for just not filing directives of a document or court orders. Once we were in the probate process, a lot of the duties that would be carried out would be ordered by the court.

Would The Personal Representative Be Replaced If They Did Not Perform Their Duties?

Yes. Someone else could be appointed and the individual who failed to execute on and perform their duties would be replaced. Probably the third largest area of litigation in the state of California is breach of fiduciary duties where the successor trustee was being removed or changed or even during a probate, somebody who was appointed as an executor ended up having to be switched out for failure to perform their duties or sometimes greed sets in.

Why Would Someone Accept The Role Of The Personal Representative?

People usually accept the role because it would have been thrust upon them by a family member and in memory of that individual, they would want to take care of the situation, although it would carry some consequences. It would be a fiduciary duty, which would be the highest duty that anyone could owe to another person, and if it was breached, then that would become a problem punishable by court orders and various types of monetary consequences.

Can An Executor Or Personal Representative Do Anything To Make The Process Go Quicker?

Not really. Once things are in the probate system, the executor or the administrator would sit back and just wait until there were various hearings. They would respond to court inquiries and go through their lawyer if they wanted to use a legal representative through the system. Sometimes people will do it in pro per, and that takes even longer. There would be no way to speed this up. We tried to get in for an ex parte, meaning an individualized meeting with the judge on this one case so that we could have access to funds but we are just out of luck until May of 2016, whereas it is currently October of 2015.

What Are Differences Between The Duties Of The Personal Representative And An Attorney During The Probate Process?

An attorney would be involved in the probate process to help traverse the legal system, to get the court what it needs and feed it to the court in the most effective manner possible to try and get the estate through the process and out of the probate system. The person elected as the executor if there was a will, or, if we did not have a will, the administrator would have the job to distribute the estate and wind it up.

If a document like a will was in place, then they would distribute the estate out to the loved ones who had been named in the will. Really their job would be to act as project management, distribution and getting everything wound up. The attorney would just help traverse the legal system and get it in and out of the process as quickly as possible.

Is This Whole Process Emotionally And Mentally Stressful For People?

Yes, and emotions can run high because it can be very stressful and there may be other family members who think someone is holding up because they have not been a part of the court process, meanwhile the executor or the administrator would have to appear at all the hearings or have the attorney appear on their behalf, and they would need to respond to court requests for information, documents, etc. Other family members would not know what was going on so they tend to put a lot of pressure on the individual who was supposed to be processing everything.

For more information on Who Handles The Probate, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (866) 544-8825 today.

Orange County Attorney James Burn

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