The Pauls Valley Daily Democrat’s recent article entitled “It doesn’t end with the will” explains that there’s constant confusion about wills. This misunderstanding involves the scope of power of those named in the will as the personal representative (or executor) of the decedent’s estate. Let’s try to straighten out some of these myths or pieces of bad information about wills and probate.
The Executor Doesn’t Need Court Permission. False. An estate executor or personal representative can’t distribute a decedent’s assets to themselves or to any heirs, until okayed by the court. Many people think that a will provides immediate authorization to distribute the assets of an estate.
If He had a Will, We Don’t need Probate. Another incorrect belief is that if a person dies with a will, probate isn’t needed or required. If a person has a will, the will and the distributions named in it can only be made valid by the probate court (unless then assets total less than $166,250 in California). There are ways to avoid the probate process. However, the fact that a person had a will doesn’t do it.
The Executor Can Start Giving Away Stuff ASAP. This is also false. Some people think that as soon as a person receives appointment as the personal representative or executor from the probate court, they can begin distributing assets from the decedent’s estate. Nope. If this were true, it would defeat the objectives of probate, which is court oversight and control. No distributions can be made until the court approves it which usually takes 6months to 2 years depending on the complexity of the probate assets and court schedule.
The Court Doesn’t Monitor the Executor’s Actions. This statement is also incorrect. The entire probate process is structured to provide a court monitored coordination of a decedent’s estate to make certain that his or her wishes are followed. This also helps to prevent unauthorized distributions or “raids” on a decedent’s assets by improper persons.
Remember, the executor’s Letters Testamentary authorize that person to act for the estate—they don’t permit any distributions before court approval or final probate court order.
What Does Probate Do? Probate fulfills these purposes:
- At death, the deceased’s property is subject to control and monitoring by the court.
- The court then starts to see what the decedent’s wishes were for distribution and who was named to administer the estate.
- The court must also review the scope of the estate, define all assets in the estate and determine all debts of the estate.
- Probate requires a notice to creditors, so the executor has a complete list of debts of the estate and to give each creditor the opportunity to be paid.
- The court watches any transfers, sales of assets or payments during probate.
- The executor is authorized to receive money and manage the assets of the estate, but he can’t withdraw or transfer assets from the estate.
- At a final hearing and after notice to interested parties, the court determines who should get distributions.
Ask an experienced estate planning attorney about the probate process and how to devise a complete estate plan.
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Reference: Pauls Valley Daily Democrat (Oct. 1, 2020) “It doesn’t end with the will”