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RAMONA, CA – OCTOBER 30: A real estate for sale Image by Getty Images via Day life Probate usually works like this: After your death, the person you named in your will as executor — or, if you die without a will, the person appointed by a judge — files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you’ve left. Then, relatives and creditors are officially notified of your death. Your executor must find, secure, and manage your assets during the probate process, which commonly takes a few months to a year. Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities, or other property. For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash. Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them.probate

You may have heard that you should avoid probate, but you may not even be sure what probate is. Here are the basics. The will usually names an executor, a person tasked with carrying out the instructions laid out in the will. The executors most common task is the conducting of the decedents assets throughout the probate process. If there is no will, or if the will does not name an executor, then the probate or other court having jurisdiction of the decedents estate can appoint one. Traditionally, the representative of an intestate estate is called an administrator. In some cases, where the person named as executor cannot or will not be able to handle the work, or wishes to have someone else handle the work, another person will be named as administrator. Generally, an executor is a person named in the will who receives something from the proceeds of the estate in addition to following the instructions in the will, while an administrator is not named in the will to be a recipient of the proceeds of the estate. The probate court may require that the executor provide a fidelity bond, which is an insurance policy in favor of the estate to protect against the possibility of the executor mishandling the funds.
The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.

Some of the decedent property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent or bank account that names a beneficiary or is owned as “ayable on death, and property (usually, again, a bank account) legally held as jointly owned with right of survivorship. Property held in a living trust also avoids probate. In these cases, the personal representative provides documentation to the court, and the property is prevented from entering probate.
The first task of the personal representative after opening the probate case with the court is to inventory and collect the decedent property.

Next, the personal representative pays any debts and taxes that must be paid.

Finally, the personal representative distributes the remaining property to the decedent beneficiaries, either as instructed in the will, or per the intestacy laws of the state.

Throughout this process there may be disputes. Anyone may make a claim on the estate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit to attempt to prove the claim and collect money. Any dispute generally causes the court to treat the probate more formally, and it may reach the point where the court must approve every transfer of every piece of property.

The personal representative must understand and abide by the fiduciary duties (e.g., duty to keep monies in interest bearing account, duty to treat all beneficiaries equally, etc.) placed on him or her. Disregard of the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

Probate generally lasts several months, occasionally over a year before all the property can be distributed, and incur substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust. This is a separate entity to which a person transfers ownership of his real property (house, etc.,) from himself to a trust which he controls and can revise at any time (except in the case of an irrevocable trust.) Upon death, the persons named as beneficiaries in the trust acquire ownership of it and, therefore, the property the trust owns. As probate is a public process, a living trust has the added advantage of preserving the privacy of the deceased and his heirs as well as avoiding some estate tax.

Life insurance, savings accounts, and joint tenancies with the right of survivorship are some of the other ways people use to avoid probate.

When someone passes away, they often leave behind an estate (assets, properties, land etc.) which has to be dealt with in some way. Usually some of the assets are sold off to pay off any debts that need to be cleared before the rest of the estate can be distributed to those who have inherited it.

A probate sale takes place when there is a death and no will is in place. The legality of the will is being questioned or because the heirs are disputing the distribution of the proceeds as stated in the will. Probate is a service that a Surrogate Court provides to confirm the validity of a deceased person will. Once a will has been probated by the court, everyone can rely on its authenticity. Unfortunately, this is a costly way to do things, and often eats away at the equity in a home. In addition to being costly, probate takes quite a while to get things done. The property is turned over to the state, and they can take as much time as they want to get around to getting a property sold. Nothing can be done without the permission of the court. Expenses are billed to the estate, and time slowly ticks by while family members have to wait to get any monies that might be left. Working on a number of probates, and having seen them take 2,3 or more YEARS before the property can be sold! If nothing else, people should look at this and take the time and effort to get a will done. As an estate attorney know. If you don’t have a plan, the state does! Get a will.

This page is about fiduciary in the legal sense. For optical field-of-view markers, see fiduciary marker.

The court of chancery, which governed fiduciary relations prior to the Judicature Acts
The court of chancery, which governed fiduciary relations prior to the Judicature Acts

The fiduciary duty is a legal relationship of confidence or trust between two or more parties, most commonly a fiduciary or trustee and a principal or beneficiary. One party, for example a corporate trust company or the trust department of a bank, holds a fiduciary relation or acts in a fiduciary capacity to another, such as one whose funds are entrusted to it for investment. In a fiduciary relation one person justifiably reposes confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires one to act at all times for the sole benefit and interests of another, with loyalty to those interests.

A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.[1] ”

A fiduciary duty is the highest standard of care at either equity or law. A fiduciary (abbreviation fid) is expected to be extremely loyal to the person to whom he owes the duty (the “principal”): he must not put his personal interests before the duty, and must not profit from his position as a fiduciary, unless the principal consents. The word itself comes originally from the Latin fides, meaning faith, and fiducia, trust.

In English common law the fiduciary relation is arguably the most important concept within the portion of the legal system known as equity. In the United Kingdom, the Judicature Acts merged the courts of Equity (historically based in England’s Court of Chancery) with the courts of common law, and as a result the concept of fiduciary duty also became usable in common law courts.

When a fiduciary duty is imposed, equity requires a stricter standard of behavior than the comparable tortious duty of care at common law. It is said the fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, a duty not to be in a situation where his fiduciary duty conflicts with another fiduciary duty, and a duty not to profit from his fiduciary position without express knowledge and consent. A fiduciary cannot have a conflict of interest. It has been said that fiduciaries must conduct themselves “at a level higher than that trodden by the crowd”[2] and that “[t]he distinguishing or overriding duty of a fiduciary is the obligation of undivided loyalty.”[3]