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Probate


SAN JOSE PROBATE & ESTATE PLANNING LAWYER

Are you currently looking for an experienced and knowledgeable attorney to help you with probate administration? As San Jose probate attorneys at Henshaw & Henry, PC, we are well-qualified to answer any questions you have and help you perform your duties as a personal representative to the very best of your abilities.

Contrary to the images depicted in film and on television, when a loved one passes away, loose ends are not necessarily tied up when the family meets with the decedent’s attorney to read the will. In many instances, in order for title to be transferred from the decedent’s assets and property to the beneficiaries, the estate will have to go to court to be probated, which can take upwards of eight months.

Probate is the process where the court validates or proves a will and a decedent’s financial affairs are settled. In order to wrap up a decedent’s financial affairs, an executor (if there was a will) or an administrator (if there was no will) are appointed by the court to carry out the following duties:

  • Gather the decedent’s assets and take control of them.
  • Notify all beneficiaries and creditors.
  • Manage the decedent’s assets.
  • Pay all debts, claims and taxes against the estate.
  • Defend any lawsuits against the estate.
  • Provide periodic accountings to the court.
  • File all applicable final income tax returns (for the decedent) and estate tax returns.
  • Distribute the remaining assets to the rightful beneficiaries.

FIDUCIARY DUTY OF THE PERSONAL REPRESENTATIVE

Executors and administrators, otherwise known as personal representatives are entrusted with a great deal of responsibility and have a significant level of power when settling an estate. Personal representatives have a fiduciary relationship with beneficiaries where they are held to the highest standards enforced by California State law.

This fiduciary relationship requires that executors and administrators act in the best interests of the beneficiaries at all times, completely free of any self-dealing and conflicts of interests. Unfortunately, a personal representative, when acting in good faith, can make mistakes due to lack of experience or knowledge of California’s probate laws.

When such an error causes undue harm to an estate, a beneficiary can petition to have the personal representative removed and held accountable for any losses suffered by the estate. If you have been appointed as an executor or administrator of a Santa Clara County estate, we urge you to contact us for professional assistance. We can explain your rights and responsibilities under the law and guide you through every step of the probate process seamlessly.

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