Whether the Executor/Administrator (commonly known as “Personal representative”) of a decedent’s estate can live out of state depends on the laws of the state in which the Will or estate is probated. In California, an out of state Personal representative is fine. While it’s generally possible to have a relative living out-of-state serve as your Personal representative if that is the individual you really want handling your estate, certain people cannot serve as Personal representative no matter what the state of residence. To qualify in a probate court, Personal representatives must be United States citizens over the age of 18 and cannot have been convicted of any felony. These conditions hold for relatives and non-relatives alike.
What is the difference between the Administrator of an Estate and an Executor of an Estate? It’s a distinction you should be aware of if you are the person to be appointed to take charge of the estate. The short answer is that an Executor is the person whom the decedent named in the Will to take charge of the estate. An Administrator is the person in charge of the estate when someone dies without a Will. Because the executor and the administrator perform the same functions except that one is appointed by the will and the other is appointed by the court, the term Personal representative is increasingly used as a gender-neutral term to describe either.
Most counties in California require the out of state Personal representative to be bonded. The terms “probate bond” and “fiduciary bond” are interchangeable umbrella terms that encompass the many court bond types required when individuals are appointed to act on behalf of others.
It is not unusual that a decedent will have received advice or counsel from an attorney prior to their death while drafting a Will, and might include a waiver of the bond requirement in the Will. The probate court might agree with the decedent’s wishes to waive the bond, but the court has the last word in such matters. If the cost of a bond is too much in relation to the estate or there are other reasons a bond is not desired, the other common “work around” is that all the beneficiaries agree to waive the bond and advise the probate court. While that will usually tip the scales to waive a surety bond, if the Personal representative lives outside of California, the probate court will probably overrule the beneficiaries and insist on a surety bond.
The best way to determine whether you need a surety bond is to ask the court for a waiver during the probate proceeding. If a bond is required, you will not be appointed as the official Personal representative until the required surety bond is filed with the court. Note that some Wills stipulate that a bond is not needed. However, out of state personal representatives are routinely asked to post a bond, notwithstanding the non requirement in the Will.
Ballpark cost for a surety bond is difficult to predict as the face value of the bond will be determined by the value and nature of the property involved in the probate, and then the creditworthiness and the net worth of person applying for the bond. Some Personal representatives applying for a surety bond may simply not qualify and be declined.
These bonds help protect the estate and its beneficiaries from fraud, embezzlement, or other illicit acts. Personal representatives wield considerable power over finances, real estate, and other significant holdings. Depending on the type of estate, a Personal representative could be responsible for:
To put it simply, having a surety bond filed with the probate court gives family members, heirs, and other stakeholders an avenue of recourse should the Personal representative act in an improper or illegal fashion.
If you are a Personal representative of a decedent’s estate and do not live in California you may not know what to do. That is where I can be of help. I make a difficult and bewildering California probate process as simple as possible. If you wish to gain more information on California probate or if you need the general assistance of a California probate lawyer, please contact me for a free consultation. I will spend time with you to answer your questions.
I assist clients in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County and San Diego County. You can reach me by phone at 760-989-4820, by email at firstname.lastname@example.org or through my online contact form.
Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.
Copyright © William K. Sweeney, Attorney at Law. All rights reserved.