estate law

Understanding Probate Laws And Its Consequences

Without law, there will be anomy and anarchy will be inevitable; a state in which life is brutish, nasty, solitary, ugly poor and short as rightly described by great British philosopher Hobbes. If law is then made for man, and not all man has the knowledge of law; can it then be sufficient enough to claim ignorance of the law as an excuse? Absolutely No! That the law does not suffer a wrong without a remedy is the reason an accused person is granted the right to representation by a counsel. At times, the law could intercede between the wishes of a dead person as it connects with, and affects the desire of its surviving associates or relatives; a complicated situation in which probate laws become very necessary.

What Does a Personal Administrator Do?

Probate is in no doubt a cumbersome and complicated legal procedure whose adequate understanding is key to the successful administration of a decedent property, especially by an administrator or executed who is legally saddled with the responsibility to administer such properties to its supposed beneficiaries.

A personal administrator acting to secure settlement of a decedent property for probate is however expected to; on appointment’ follow certain procedures which include:

  • Take charge decedent property and open account in the estate name.

  • Notify decedents’ creditors to come lay claim within a specified period of time.

  • Make every payment deemed due and necessary.

  • Pay off debts accrued by decedent.

  • Allocate what is left of the property (in cash or asset) to decedent heirs and advisees.

  • Take proper charge and give adequate report of decedent taxes and account activities.

  • Hand over every record to the court for probate closure and documentation.

While the above identified processes might seem so direct and easy to handle, experience had shown that a poorly handled probate matter could have great consequences on the executor and the properties being handled.

Executor Misconducts that Attract Legal Consequences in Probate Matters

The legal consequences of a probate have nothing to do with the availability or non-availability of will but rather with regards to some technical and procedural errors that an administrator or executor might commit in the course of discharging its duty, and which might be of great legal consequences, among such includes:

Improper Handling of Will and Records: – to be an executor or administrator at first requires certification by a court of competent jurisdiction, an important part which requires a presentation of will left by decedent even if almost all the purposed beneficiaries have died. If not found, efforts and proper consultation to the family attorney, banks, and court houses must be made to convince the court that a good-faith effort had been made towards locating it; upon which it can then file a petition to the court for such estate to be declared “intestate”. An existing state law can then be employed as the template for allocating such properties to heirs and devisees.

If it fails to do that and proceed with the allocation and disbursement of such assets based on the existing state law without the assets being declared “intestate”, such act could amount to a misconduct punishable by fine or even jail term in some cases.

Failure of Executor to Secure and Protect Assets: – many assets are owned, hidden away from friends, associates or relatives for one reason or the other. When people dies, locating and securing such properties as expensive jewelleries, hidden bank accounts, long forgotten bonds or even estates secured in other locations; could be a very challenging and tasking. We’ve seen cases of unclaimed properties worth in millions of dollars rot away or end up in government coffers. For an executor who fails to take such search with utmost seriousness, it might run the risk of extra paperwork in a situation whereby a property is located after probate had closed. When all property is found and a complete inventory is made, it is then the legal responsibility of the executor to ensure that such secured property is not lost or stolen; and that they maintain their value through proper maintenance until probate is settled.

In a situation where loss or theft is recorded, or even depreciation occurs in the value of the property as a result of improper handling by the administrator or executor, he/she will be held liable for professional misconduct and held liable to remedy as the court might deem fit.

Poor Handling of Probate Funds and Finances: – this is the most difficult and technical part of an executors’ job, and possibly the part with the greatest record of executor misconduct. In the course of handling decedent’s properties and finances, an executor run the risk of mixing the funds from estates with that of any other non-probate ones. Such issues as debts from debtors, returns on bonds, social security dues payable to decedent as at time of death as well as every other accruing income must be duly collected, remitted and accounted for by an executor. In addition, it must as well also keep proper record of taxations and personal income taxes paid as at when due; all which shall be filed before the court at a later time. in some other instances, an executor might be permitted to receive a “reasonable” sum as compensation for its services; a decision (i.e. of what is considered as reasonable) only within the power of the court to decide.

In the situation where an executor pays itself or decides for itself what it considers ‘reasonable’ as its bonuses; or even mal-handle the finances placed under its watch, such could be declared a case of misconduct for which legal consequences might be attracted.

Premature Disbursement to Creditors and Beneficiaries: – based on law, to disburse a decedent asset to its rightful beneficiaries is the work of an executed, but such should never be made until the creditors of decedents fully receive their claims. The importance of credits however differs based on individual states priority ranking; such is the place of the creditors attached to such credits.

In the situation where an executor pays a creditor farther before others are paid and then fall short of finances, it will have to bear the cost for such from its personal purse as that could be tantamount to misconduct on its part. Where non-probate expert acts as executors, such must seek the help of a professional probate expert when in doubt of a situation; as this saves it of headache and the risk associated with committing an error.

East Bay Probate Attorney

probate attorney
Probate Attorney George Derieg
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