Probate is the legal process used to distribute an estate, often guided by a will. The process involves the naming of an executor or personal representative. This individual is responsible for initiating and completing the probate process and has a fiduciary duty to the estate to act in the best interest of the beneficiaries.

This fiduciary duty includes moving the probate process forward in a reasonable manner. In some cases delays are reasonable. In others a delay could signal the executor has failed to meet their fiduciary duty. It is generally reasonable, for example, for the probate process to take longer in instances where there is a will contest or the estate is very complex.

When are delays not reasonable?

Take note if the executor has started remodeling and probating real property, purchasing vehicles, or otherwise taken to spending in a way that is uncharacteristic. There are examples of cases where these actions signal the executor has started to take funds from the estate for their own personal use — a move that is in direct disregard to their fiduciary duties. Legal remedies are often available in these situations.

But how long is reasonable? The answer will depend on a number of factors, including the state. California state law generally requires the personal representative to complete the probate process within one year from the date of appointment. If, however, the personal representative files a federal estate tax this deadline is extended to 18 months. The law requires a personal representative who does not complete the process within this timeline to file a status report with the court to explain the need for an extension.

What are my options for recourse?

If the personal representative fails to file the status report with the court, the beneficiaries can petition the court to order the personal representative to file an accounting or take other actions as needed to close the probate process. A beneficiary could petition the probate court to compel the executor to begin the probate process or to have the executor removed from their position.

These are just a few of the options available to beneficiaries that are concerned about the administration of the probate process.

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Your loved one has chosen you to be the personal representative of their estate. It is an honor to be trusted with managing the assets they cherish the most – but it is also a big responsibility.

Acting as a personal representative can be a challenging job. So, here are five things to keep in mind.

1. Understand your duties

If possible, it will help to discuss your role with your loved one in advance. Having a direct conversation about their wishes can help ensure you are not surprised or overwhelmed when the time comes that you must actually carry out these duties.

Regardless of whether or not it is possible to discuss your role with your loved one, it is helpful to conduct research to make sure you understand the specific obligations included in the will and your duties under California law.

2. Be prepared to work

The duties of a personal representative are many, including but not limited to:

• Completing paperwork
• Informing companies and creditors of your loved one’s passing
• Paying debts
• Protecting the property

There is a lot to manage, and it can be time-consuming. Understanding your duties can help you prepare, but you must also prepare yourself for the workload it could involve.

3. Organization is key

With how much work personal representatives must complete and keep track of, it is critical to get organized. As AARP suggests, you should find an organizational system that works for you, whether that is spreadsheets or to-do lists.

4. Communicate

The aftermath of losing a loved one can often be stressful for everyone in your family. This stress can cause conflict to brew quickly between family members, heirs and beneficiaries.

That is why it is important to maintain a high level of communication throughout the process of administering the estate. Updating your family and keeping them informed can not only help ease the stress you all face but also reduce the risk of conflict.

5. Take care of yourself

As we mentioned above, this is not an easy time. You have a lot on your plate as a personal representative – on top of the grief you experience for your loved one. This combination can make it easy for individuals to face both emotional and physical burnout.

Make sure you have a support system of family and friends during this time to help you. Additionally, you should also make time to rest. The list of things to do might be long, but looking out for your well-being during this difficult time is critical.

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It bears repeating that navigating probate is not always easy. The complexity of the process is likely what leads to so many online articles about avoiding probate altogether, even though that idea is not as simple as it sounds.

However, it is the emotional aspect that often adds complications to probate. Administering an estate while processing and grieving a loved one’s death can be overwhelming for families. Dealing with the complexities of probate can become even more challenging for some blended families.

Three emotional challenges of probate for blended families

Families can become complex after a divorce or a second marriage. The new arrangement of the family tree can make both estate planning and probate complicated legally and financially.

Even so, there are other, more emotional factors that blended families should be aware of when it comes to probate:

• Time and distance can affect them more: As time goes on, children grow and start their own families. They might move to a new city or state. This is common for all families. However, this can be uniquely complex for blended families, as highlighted by Forbes. Stepchildren and stepparents might fall out of touch after the death of a loved one, leading biological children to be omitted from inheriting the stepparent’s property – which could include their biological parent’s assets under California’s community property rules.
• More opinions can lead to more problems: While a blended family does not necessarily equal a larger family, it does often involve more opinions and thoughts regarding the correct way to administer an estate. Spouses and ex-spouses, as well as stepsiblings, might disagree about the administration of the estate – particularly if the estate plan is not clear.
• Emotions and finances make matters complex: Disputes are not always personal. Even when siblings and stepsiblings get along well, the combination of grief and stress over finances can quickly erupt into disagreements and disputes over how to handle estate and probate matters.

These three issues are not nearly the only ones that can impact blended families after they lose a loved one. Every family is unique, after all. However, these three do play a role in creating complications for families.

How can blended families mitigate these issues?

Thankfully, there are ways that families can handle these complications. Of course, a detailed estate plan can significantly reduce the chance of disputes. It can also help families to:

1. Be aware: If the members of a blended family are aware of the potential issues they could face, it can help them manage these issues before they appear – and before they can escalate into disputes.
2. Be open: AARP reports that having clear and open conversations can help families avoid disputes as well. In particular, it can help if siblings communicate effectively and try to stay on the same page.

When families face probate, it is not an easy time in their lives. Making efforts to understand potential issues and work together can make all the difference for blended families in these situations.

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Death is not an easy subject to think about – much less funerals. It is generally because these topics are so difficult to think about that many people put off other aspects of estate planning for so long.

Funeral planning might not be your or your loved one’s priority, but it is something you should understand, and even make plans for.

What are the trends in funeral plans?

Cremation is the most common choice for funeral plans in the country. CNN reports that cremation has been more common than burials since 2015. There are many reasons for this, including:

• The cost of burial and funerals
• The location of family members
• Personal preferences

You might wonder: why is it important to understand these trends?

To some, cremation was a controversial option, especially when it came to religious rules. Now, it is more common than burials. It is important to understand these trends because they influence our culture – which influences us, even if we do not know it.

Preserving values and legacies in death can be a big deal

Many people want to ensure their funeral plans adhere to the values they held close in life as well. This is one reason why green burials are also becoming more common in California.

Funeral services are also called “celebrations of life.” By planning your funeral in advance, you can ensure that the celebration accurately reflects your life’s values.

Making all of your wishes known is what is most important

There are many options for individuals to consider when it comes to planning their funerals. The myriad of options can be overwhelming for your family to deal with on top of grief – especially if they do not know your wishes.

Your wishes and values are the most important factor here. As we discussed in previous blog posts, establishing your wishes can protect your legacy while reducing the stress on your family in difficult times.

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One of the most common worries that families have about the probate and estate administration process is time. Whether or not you are the executor of your loved one’s will, you may wonder and stress about how long it will take.

It is true that probate can take time. The average probate can take about one year to complete. Even so, it is an important process. Worrying about time is understandable, but it is often more helpful to understand what variables can delay probate from being completed.

Four significant factors that can delay probate

First, it is important to note that every case – just like every family – is different. Not all of these delaying factors might impact your case, but these are some of the most common ones that families encounter:

• The estate plan: Issues with a loved one’s plan can frequently delay probate. For example, if your loved one has more than one will, it can take time for the probate court to determine which one is valid.
• The process itself: Certain aspects of California’s probate process do contribute to how long the process takes. There are certain steps that the executor or personal representative must complete, including filing and publishing notices as well as the 120-day waiting period after the estate is opened for creditor claims.
• Locations: This does not necessarily refer to the location of the probate court. Probate can take longer if your loved one owned several real estate properties in different states, (which, in turn, might require separate probate filings). Additionally, another delaying factor can be the location of all the beneficiaries. If they live across the country, or even across California, the process can take longer.
• Assets: Did your loved one hold intellectual property rights? Or did they have expensive collectibles? Valuing these complex assets properly can take time, but it is critical to do it right.

Several other factors can prolong the probate process. However, recent events outside of the court have impacted the process as well.

What about outside circumstances?

It is uncommon for circumstances outside of your family, the estate plan or the court to influence how long probate might take. However, this last year was nothing but uncommon.

Concerns over probate delays have only increased due to the COVID-19 pandemic. With shutdowns and closures of courts across the state, delays have only increased in the last year. Restrictions are slowly easing, but it will likely take California probate courts time to catch up.

It is natural that families want to resolve probate and move forward as quickly as possible. And there is no doubt that it is stressful to navigate probate while grieving a loved one, but understanding the factors that can delay probate can help families feel more prepared to handle this process.

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Selling your loved one’s property during probate is very different than any traditional real estate sale. For one, the California probate court may be involved in the process and may ultimately have to approve the sale. There are several other steps you may have to take as well, depending on the authority you have.

Whether your loved one’s will instructs you to sell the house, or there is no will and a sale is necessary to pay the remaining debts, one of the most common worries individuals have in these cases involves the condition of the house.

Do I make repairs to the house or sell it as-is?

Your loved one’s house might be older construction and have an outdated design. It might even be what many people call a fixer-upper.

The housing market can be fickle, and dealing with the sale of an old house on top of probate proceedings can be tough. After all, most sellers try to fix up their houses before listing them to improve curb appeal and get a better resale value.

Rehabilitation is an option for some homes. However, repairs can be a challenge in a probate sale. For example:

• Older houses might require considerable repairs and rehabilitation
• Rehabilitating a property can take a lot of time – and money – that you might not have
• Repairs might inadvertently cover up defects or foundational issues that could be a risk

This is why most probate properties in California are sold “as-is.” That way, you can list the probate property without making repairs, and generally, you are not responsible for any problems buyers may find down the line since they purchased the property as-is. This option is also more common because it is unlikely that you lived in your loved one’s home, and therefore do not have the same knowledge of potential problems it may have.

Of course, you must clear the house of any personal effects and other assets. You can also make small repairs and clean the house up for the listing. But full rehabilitation of the property is not always necessary, even if it is a fixer-upper.

So, what should I do?

Generally, whether you sell your loved one’s house as-is or rehabilitate it depends on your circumstances and the condition of your loved one’s home. It is often beneficial to consult an experienced probate and estate administration attorney who can help:

• Analyze the property and determine which option is best for you
• File the proper paperwork with the court, send notices to beneficiaries
• Make sure the sale meets all of the conditions outlined in the Probate Code
• Obtain an appraisal of the property

Managing all of the details of probate as well as selling a house can be overwhelming. However, it is possible with knowledgeable guidance.

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It is common to hear that it is never too early to plan for the future. Yet, many people – especially young adults – put off creating a will because they believe they have time to address these matters later in their lives.

However, what about the parents of these young adults? Most California families do not want to think about losing a loved one, but no one can predict the future. And the COVID-19 pandemic has left many families and young adults in situations they never expected.

Young adults facing sudden loss and overwhelming stress

Dealing with the loss of a parent is not easy at any age, whether it was the result of a terminal illness or a terrible accident. The grief can feel especially overpowering for young adults, who imagined they had much more time with their parents.

On top of that, losing a parent can also leave young adults facing considerable stress as they try to manage their parents’ estates and finances, as well as the probate process. The COVID-19 pandemic only emphasized this issue. The Wall Street Journal recently reported on several cases like this, with young adults struggling to do anything from locating their father-in-law’s wallet to obtaining a forbearance on their father’s mortgage.

Do your parents still need a will?

A significant percentage of adults across the country still do not have a will, or any other estate planning documents for that matter. This can lead to even more confusion for their young adult children dealing with probate.

Without a parent’s estate plan to guide them, young adults may have no starting point to:

• Understand, manage or even locate assets and debts
• Adhere to a parent’s wishes for their medical care or funeral
• Access mail, financial accounts and even property
• Begin probate

Taking any of these steps is stressful – and devastating – for anyone, but it can be especially when children are unprepared. No one wants to deal with such anxiety and uncertainty. And no parent wants to leave their child unequipped to handle their affairs or protect their wishes.

Estate planning is not always an easy topic to discuss, but it is worth it for children to discuss it with their parents, and ensure they know what to do to protect their legacy.

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Many people see the age of 18 as an important milestone. After all, that is when you become an adult in the eyes of the law.

However, it is easy to overlook the implications of this moment. Parents and children alike might celebrate this occasion, but the moment your child turns 18, you no longer have the authority to make decisions for them. This might seem like a part of life, but what happens if your child faces an emergency?

Accidents happen. But can laws prevent parents from helping?

The last thing any parent wants is to receive a frantic phone call from their college-age child. They worry the worst has happened. For example, teens and young adults face a high risk of being involved in a car accident. Parents could face several challenges in trying to help their child in this situation:

• Distance, as many children move away to attend college
• Limited points of contact, especially if their child is injured

However, the other challenge is a legal matter. California parents might come up against obstacles when they call the hospital for information about their child. This is because HIPAA laws prevent medical staff from discussing a legal adult’s condition with anyone – including their parents.

That is why families should consider making a plan

This concern has existed for years. And it will continue as children become legal adults, move on to attend college or engage in other post-high school adventures. As Forbes reported in 2014, powers of attorney are critical to protect children as they move forward into early adulthood.

No parent – or adult child, for that matter – wants to feel helpless in these situations. Thankfully, it is possible to avoid that stress. If you have high school- and college-age children, you should consider having a conversation with him or her — that they should consider establishing:

• An advance health care directive: This can help make sure your child gets the care they need. Your children can also assign you as an agent who can make medical decisions on their behalf. This also often ensures you can discuss their conditions and care with their medical provider.
• A durable power of attorney: You should not forget financial issues either. Part of entering the adult world is managing finances. In the event your child cannot make financial decisions, a power of attorney can allow you to step in and make these decisions for them.

Parents cannot establish these things for an adult child. But parents can explain what their children need to do. The adult child can then meet with an attorney without parents to get it done.

These conversations are never easy, no matter your age. However, they are important to protect the ones you love most.

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Taxes are usually the last thing you want to think about. They are often complex and stressful.

Filing your own taxes is especially the last thing on your mind when you and your family are facing the process of probate. But what about your loved one’s taxes – are they still necessary after death? And do you have to file them, if you are the executor or personal representative in a probate matter?

Yes, you must file taxes in probate

One of the most critical steps in the probate process is taking care of a loved one’s debts and remaining financial responsibilities. The executor or personal representative must make sure outstanding bills are paid, such as any medical bills, credit card debts and utilities.

However, this step also includes filing taxes on behalf of your loved one.

It is critical to note that – like other debts in your loved one’s name – you and your family members will likely not be directly responsible for paying the taxes. Anything owed will come from the estate. This can differ if surviving spouses file jointly, but any payments are usually from the estate.

So, what do you have to do?

In general, there are a few steps you must take to file the final tax returns. For example, you must:

• Obtain the decedent’s federal ID number
• Notify the IRS that you are the executor or personal representative and acting on your loved one’s behalf
• Gather the proper paperwork, including obtaining a certificated copy of a death certificate
• File any and all necessary tax returns (including outstanding past due returns!)

You should also check whether there are any overdue tax returns from previous years. You must pay these as well.

Which returns are necessary to file?

The tax returns you will have to file will depend on your loved one’s individual circumstances. But in California, the returns you may need to file include:

• State income tax returns
• Fiduciary income tax returns
• Real estate or property taxes
• Business or employment taxes
• The federal estate tax, if necessary

The State of California’s Franchise Tax Board provides a helpful guide for families managing taxes during the probate process. It might also be beneficial to consult an experienced probate attorney to make sure everything in the final tax return is in order.

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In a previous blog post, we discussed how beneficial it is for individuals to have a health historian. This is not an official role, which leads many people to wonder: how can a health historian really help me?

1. Someone can represent you if you cannot speak for yourself

For the need to arise for a health historian to provide medical information on your behalf, it’s not something you would want to think about, but it is a real possibility.

In an emergency, you might not be able to provide your health history to the medical professionals trying to give you the best possible care. You might be confused, incapacitated and or have difficulties expressing yourself.

But a health historian, who has a thorough understanding of your medical history, can help speak for you to make sure you get the proper care you need. To that end, it is most helpful to have a lawyer prepare a detailed power of attorney for healthcare to give this person the legal power to make decisions on your behalf.

The combination of a health historian with power of attorney ensures you have holistic representation during difficult circumstances. After all, they can then:

• Provide a current list of medications you are taking to health care professionals
• Provide a list of doctors you are currently seeing and for what purposes
• Discuss your health history and the current situation with medical providers
• Understand the day-to-day effects of your health and medical condition
• Make informed decisions about your care

Making sure someone aside from you shares the knowledge of your health history is an important precaution you can take for your own medical care.

2. You can benefit from another perspective

It is always helpful to look at things from a different perspective – even when it comes to your health.

If someone else has comprehensive knowledge of your health history, they can support you in:

• Your medical care: They can accompany you on appointments and provide your medical history and current medications, as well as insightful opinions about your treatment options and care.
• Planning for the future: Your health historian can also help you consider estate planning and future medical decisions. This can be an overwhelming topic to contemplate alone but working with your health historian to clarify your wishes and make difficult choices will make the process easier.

3. It can reduce your stress

Choosing a trusted loved one to be a health historian can also take some weight off of your shoulders. Dealing with health and medical matters is never easy, but you don’t have to handle it alone.

And knowing someone understands you and your condition, and that they can make these important decisions that adhere to your wishes, can give you peace of mind.

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