Closing and Distributing the Probate Estate

A final account and petition for distribution can be filed by the Personal Representative when there are sufficient funds available to pay all debts and taxes, the time for filing creditors' claims has expired, and the estate is in a condition to be closed.

The Personal Representative is required to file a petition for final distribution or a verified report on the status of the estate within one year after Letters are issued (or 18 months if a federal estate tax return is required).

The Personal Representative must file a final account, report and petition for final ditribution, have the petition set for hearing, give notice of the hearing to interested persons, and obtain a court order approving the final distribution.

If the Personal Representative wants to receive compensation for his or her services, a petition for fees should also be included in the petition for final distribution.

A final account does not have to be filed if all the persons entitled to distribution of the estate sign a written waiver of account or a written acknowledgment of receipt of their share of the estate.

If the estate cannot be closed within one year after issuance of Letters (or 18 months if the estate is required to file a federal estate tax return), the Personal Representative must file a verified report on the status of the estate.

The status report must show the condition of the estate, the reasons why it cannot be closed and distributed (for example, if there is ongoing litigation, or an estate tax audit, or real property that must be sold to pay debts or cash gifts), and the estimated time needed to close the estate.

The status report is set for hearing in the same manner as any other probate petition. A Notice of Hearing (Form DE-120 , Judicial Council) must be sent to persons interested in the estate at least 15 days prior to the hearing.

The Notice of Hearing must include the following statement in not less than 10-point boldface type in substantially the following words:

You have the right to petition for an account under Section 10950 of the California Probate Code .

At the hearing, the court may order that the estate may remain open for such time and on such conditions as the court finds reasonable if it is in the best interests of the estate and the beneficiaries, or the court may order the representative to file a petition for final distribution.

If the representative does not file a status report, anyone interested in the estate may petition the court to obtain a status report, or the court on its own motion may require the report and cite the Personal Representative into court to comply.

Failure of the Personal Representative to comply with the order is grounds to have his or her letters revoked, and the court may also reduce compensation if the time for administration exceeds one year (or 18 months if a federal estate tax return is required).

There are basically three types of wills: Attested Wills, Holographic Wills, and Statutory Wills.

California law allows both a Personal Representative and the attorney for the Personal Representative to take a fee (referred to as a statutory fee) for ordinary services, calculated as a percentage of the appraised value of the estate property. The formula for calculating the fee is as follows, from Probate Code Section 10810 

• 4% of the first one hundred thousand dollars ($100,000), plus
• 3% of the next one hundred thousand dollars ($100,000), plus
• 2% of the next eight hundred thousand dollars ($800,000), plus
• 1% of the next nine million dollars ($9,000,000), plus
• ½ of 1% of the next fifteen million dollars ($15,000,000).
• For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

If an accounting is filed, the fee base used to calculate the statutory fee also includes income received during administration, plus gains over the appraised value on assets sold during administration, minus any losses from the appraised value on assets sold during administration.

Mortgages or other debt obligations are not considered in computing the fee base.

Disbursements for debts or expenses are not factored into the calculation; neither are unrealized gains or losses (such as for securities that have increased or dropped in value since the date of death), but only if the property is actually sold.

Statutory fees are set by statute and if requested, the Court has no discretion to reduce the amount of fees, unless the Personal Representative has unreasonably delayed the closing of the estate or may be surcharged (penalized) for other estate mismanagement. However, any fee paid to a Personal Representative must be reported on his or her personal income tax return as ordinary income, so the Personal Representative may choose not to take a fee if he or she will be receiving property from the estate as an inheritance (which is not counted as income to the beneficiary).

Also, although the Personal Representative and the attorney for the estate are entitled to the statutory percentage as a fee, the Personal Representative can ask for an amount lower than the statutory percentage, and can also negotiate with the attorney for a reduced fee, particularly if the estate is uncomplicated and has only a few assets of high value (such as a home).

However, any agreement between the Personal Representative and the attorney for higher compensation is void. An attorney who acts both as Personal Representative and as attorney may receive only one fee, unless the court approves the double payment in advance. This also applies to associates or partners of the attorney. Persons acting as co-executors must divide the fee among themselves.

A court order is required before any fees can be paid to either the Personal Representative or the attorney. Reimbursement for expenses advanced by the Personal Representative or the attorney, such as for filing fees, certified copies, or publication costs, may be made without a court order.

Additional compensation, known as an extraordinary fee, may also be paid to the Personal Representative and/or the attorney for the Personal Representative for extraordinary services in an amount that the court determines is just and reasonable.

Some examples of the types of services that are considered extraordinary and for which extraordinary compensation may be awarded are:

• Sales of real property, litigation of claims against the estate,
• Litigation involving estate property, preparation of income and/or
• Estate tax returns and representation before taxing authorities on audits connected with the returns, and will contests. In contrast with statutory fees, payment of extraordinary fees is not guaranteed, and the Court does have discretion to decide whether to allow extra compensation, even when services of an extraordinary nature are rendered.

For example, the Court may consider that the statutory fee calculated on an estate where the only asset was the decedent's personal residence that was sold for $1 million is reasonable compensation (the statutory fee would be $21,150), even though the sale of real property is considered to be a type of service for which extraordinary compensation may be awarded.

The Personal Representative is required to file an accounting of the financial transactions that have occurred in the administration of the estate unless all persons entitled to distribution of the estate have signed a written waiver of account or a written acknowledgment that the person has received his or her share of the estate (e.g., a receipt on a preliminary distribution).

If all distributees waive an account, the Personal Representative must still file a report, including the amount of compensation requested by the Personal Representative and/or the attorney and setting forth the basis for computing the fees.

All accounts filed with the court must include a financial statement and report of administration according to specific guidelines found at Probate Code sections 1060-1064 and 10900. The account must state the period covered and contain a summary, supported by detailed schedules, showing the following:

• Property on hand at the beginning of the accounting period (i.e., the inventory value of all assets),
• The value of assets received during the accounting period, excluding property listed in an inventory,
• Income receipts, excluding receipts from a trade or business,
• Net income from a trade or business,
• Gains on sales,
• Disbursements, excluding disbursements for a trade or business and excluding distribution to beneficiaries,
• Losses on sales,
• Net losses from a trade or business,
• Distributions to beneficiaries, and
• Property on hand at the end of the accounting period, listing each asset at its appraised value as shown on the inventory and appraisal (carry value), and its current market value.

The financial statement may also include additional schedules required for information purposes under Probate Code sections 1061 and 1062 , if applicable, such as:

• A schedule showing the estimated market value of the assets on hand as of the end of the accounting period,
• A schedule showing purchases or other changes in the form of assets during the period of the accounting (except for transfers of cash between accounts in financial institutions or money market mutual funds),
• A schedule allocating receipts and disbursements between principal and income, if the estate is to be distributed to an income beneficiary,
• A schedule listing income, disbursements and proceeds of sale attributable to specifically devised property,
• A schedule showing the calculation of interest to be paid on specific cash gifts to a beneficiary, if required under Probate Code sections 12003, 12004 or 12005 .
• A schedule showing the proposed distribution of estate assets to beneficiaries, including an allocation between testamentary trusts established under the decedent's Will or subtrusts created under a revocable living trust established by the decedent during his or her lifetime, and
• A schedule listing any liabilities, including loans which are secured by estate assets, obligations for taxes due but unpaid, notes payable by the estate, judgments for which the estate is liable, or any other material liability (but not liabilities which are recurring expenses such as rent or utility payments).

The Schedule of Receipts must show the following:

• The nature and purpose of each item;
• The source of the receipt (stock dividend, interest, etc.); and
• The date of the receipt.

Receipts can be listed either chronologically or by category (such as interest received on various bank accounts, dividends, miscellaneous receipts). Only applies if there is an income beneficiary of a testamentary trust.

The total of all Receipts should be listed on the charges side of the Summary of Account.

Gain or loss is the difference between the gross sales price and the appraised value of the asset, as shown in the inventory and appraisal. Sales of estate assets should be listed on a schedule for Gains on Sales, if the asset was sold for more than its appraised value, or on a schedule for Losses on Sales, if the asset was sold for less than its appraised value.

The schedule should list both the gross sales price and the appraisal value, and show the calculation to reach the net gain or loss. The net difference (the amount gained on the sale or lost on the sale), or the total of all gains and all losses, if multiple assets were sold, should be included in the Summary of Account. The Losses on Sales schedule also lists property included in the inventory that is no longer in the representative's possession and is not otherwise accounted for. It may include property destroyed by fire or other casualty loss not entirely covered by insurance, or property lost through litigation.

The total of all Gains on Sales should be listed on the charges side of the Summary of Account. The total of all Losses on Sales should be listed on the credits side of the Summary of Account.

For sales of real property, the difference between the appraised value of the real property and the gross amount of the sales price should be shown on a Gain on Sales schedule.

If any costs of sale were deducted from the sales price at close of escrow (such as property tax payments, broker's commissions, recording fees, document preparation fees, etc.), those items should be listed on the Disbursements schedule.

As with receipts, the Schedule of Disbursements may be listed either chronologically by date or categorized by type of disbursement.

The Schedule of Disbursements must show the following:

• The date of the disbursement;
• The payee (to whom the payment was made);
• The purpose of the disbursement (insurance, real property tax, filing fees, etc.); and
• The amount of the disbursement.

The total of all Disbursements should be included on the credits side of the Summary of Account.

The Schedule of Distributions should include a list of all cash or property that has been distributed to an heir or devisee of the estate through a preliminary distribution. The schedule must include the date and value of the asset distributed at its appraised value.

A Receipt on Distribution should also be signed by the person receiving the property and filed with the court as proof that the property was in fact distributed and received by the person entitled to it.

The total of all Distributions should be included on the credits side of the Summary of Account.

The Schedule of Property on Hand is important because it represents all the property of the estate remaining in the representative's possession to be distributed. The representative should verify that the property listed on the schedule is actually on hand.

Cash on hand should be verified with the latest bank statement at the end of the accounting period. The description of other (non-cash) property should be described using the same description included in the inventory and appraisal (except that real property can be identified by street address on the Property on Hand Schedule, but the full legal description must be included in the Order for Final Distribution).

The property should be listed at the value listed on the inventory and appraisal.

The representative should check the inventory and appraisal against the account schedules, to verify that all assets listed on the inventory and appraisal have been accounted for, either through sale, distribution, or that the asset is listed on the Property on Hand Schedule.

The total of all Property on Hand should be included on the credits side of the Summary of Account at its “carry value”, or inventory value.

Additional schedules may also be required for information purposes under Probate Code sections 1061 and 1062 , as listed above. The dollar values of these schedules are not included in the Summary of Account calculations, although the schedules should be listed, if applicable.

In all cases, an additional schedule is required showing the estimated market value of the assets on hand at the end of the accounting period. The market value of assets can be included on a separate schedule or the information can be listed in a separate column in the Property on Hand Schedule.

Before the estate can be closed, the representative must file a Petition for Final Distribution. This generally includes three parts:

• An accounting (unless waivers have been signed by all persons entitled to distribution,
• A report of administration, consisting of a complete summary of the actions taken by the representative in administering the estate, in narrative form, and
• A petition, asking the court to approve the accounting (if filed), approve the distribution of the estate assets, plus any additional matters that require court approval (such as allowing fees to the representative or the attorney).

The petition is prepared in legal pleading format, with a title that describes the contents of the document, for example, First and Final Account and Report of Executor, Petition for Allowance of Statutory Fees and for Final Distribution.

For another example, if waivers of the accounting have been filed and there are no requests for compensation, the document could be titled Waiver of Account and Report of Personal Representative, and Petition for Final Distribution.

The petition is very comprehensive, and the representative must be careful to include all relevant information about the administration of the estate, the actions taken during administration, the property remaining on hand to be distributed, and the names, addresses and relationships of the beneficiaries who are to receive property.

Even if a full accounting for all receipts and disbursements has been waived, the petition must still include a list of the property remaining on hand for distribution (which must be described in detail, including legal descriptions of real property). The petition must also include a verification.

The following is a list of some of the common errors made in preparing the final account, report and petition for final distribution:

• Failure to give notices as required by law.
• Failure to put account in proper form.
  • Summary of account not included in format required by local rules.
  • Incorrect starting figure used.
  • Income received not itemized and source of income not shown.
  • Disbursements not itemized, date of payment, to whom, paid, and for what purpose not shown.
  • Improper credits claimed.
• Failure to describe character of the assets on hand for distribution, i.e., separate, community, or quasi-community property.
• Failure to list and describe all assets on hand for distribution, either in the body of the petition or in an incorporated schedule or attachment, whether or not an account has been waived.
  • Provide legal descriptions and assessor's parcel numbers for all real property.
  • Reference to property described in the Will or to the inventory and appraisal is insufficient.
• Failure to state specifically the manner in which the estate is to be distributed.
  • Designate intestate heirs and show relationships.
  • State facts pertaining to any disclaimer and their effect.
  • Submit assignments, if any. Describe preliminary distributions and date of filing of orders.
  • If the Will refers to fractional or percentage shares for two or more beneficiaries, show the computations and amounts to be distributed to each beneficiary.
  • Track terms of the Will as to disposition of assets; explain abatements, ademptions, or other unusual circumstances.
• Failure to describe creditors' claims activity and list disposition of all claims.
• Failure in insolvent estates to itemize all creditors' claims, showing the class to which each belongs, and the proper proration of remaining assets among creditors, or payment of debts for which no claim is filed.
• Failure to include calculation of the statutory compensation of the representative and attorney, whether or not an account is waived.
  • State payments allowed on account of compensation.
  • If account is waived, observe local rules regarding estate to be accounted for in determining fee basis.
  • If multiple representatives or attorneys were involved in estate administration, observe local rules on notice to former representative or attorney of the hearing on the final distribution and appropriate division of fees.
• Failure to include in petition's caption and request and in notice of hearing references to application when extraordinary fees are requested.
• When distribution is to be made to a testamentary trust, failure to incorporate the terms of the trust in the order of distribution in such a manner as to give effect to the conditions existing at the time distribution is ordered. Failure to state pertinent provisions in the present tense and in the third person instead of quoting the Will verbatim. Written consent of the trustee to act should be on file before the hearing.
• Failure to notice Franchise Tax Board as required pursuant to Probate Code Section 9202(c).
• Failure to allege whether the representative was acting under the Independent Administration of Estates Act, and to state specifically the transactions undertaken pursuant to the IAEA.
• Failure to set forth disposition of assets if an heir, devisee, or legatee dies before distribution of the estate.
• Failure to comply with provisions of Probate Code sections 11900-11904  on escheat or distribution to missing heir, devisee, or legatee.
• Failure to submit declaration under Probate Code sections 13100-13115  for filing before the hearing on the petition if distribution is to be made pursuant to the hearing.
• Failure to observe local rules on distribution to minors.
  • File Probate Code section 3401  or 3413  declarations before the hearing.
  • If a guardianship of the estate is required, state name of guardian.
  • If funds are to be placed in a blocked account by a custodian, state name and relationship of custodian, and name and location of depository.
• Failure to request establishment of an appropriate closing reserve for unpaid or contingent tax liability, creditors' claims, or closing costs (for example, certification and recording of final judgment).
• Failure to include an omnibus clause for after-discovered property.
• Failure to submit a proposed Judgment of Final Distribution to the court.

Petitions for Final Distribution must be filed with the court and set for hearing.

STEP 1

Complete the front side and the second page of the following form:

Notice of Hearing (Probate) (Form DE-120 , Judicial Council)

STEP 2

Mail or personally deliver the Notice of Hearing form to each person who is entitled to receive notice at least 15 days before the hearing date. Only the Notice of Hearing must be mailed (except for persons who have filed a Request for Special Notice – they also must be given a copy of the petition), but you may also send a copy of the petition to everyone who receives the Notice of Hearing.

NOTE: You cannot mail or deliver the papers yourself -- ask someone else to do the actual mailing or delivery for you.

Notice must be given to:

• Any non-petitioning Personal Representative;
• All persons who have requested special notice;
• Each known heir or devisee;
• The Attorney General, if any portion of the estate will escheat to the state of California, and its interest would be affected by the petition; and
• Each creditor whose claim is allowed or approved but has not been paid, if the estate is insolvent.

STEP 3

Have the person who mailed the Notice of Hearing sign the Proof of Service by Mail on the reverse side of the form. File the original Notice of Hearing with the completed Proof of Service by Mail with the Probate Filing Clerk.

The Order must follow the contents of the Petition for Final Distribution and should be very specific as to the heirs and beneficiaries who are to receive property from the estate and their percentage or specific interest in each item.

Each asset should be listed in detail, as described in the Inventory and Appraisal. After the Order has been signed by the judge, at least one certified copy should be obtained, for the Personal Representative's records and for recording, if the estate included real property.

The Personal Representative must obtain the receipt of the persons receiving property from the estate. In the case of real property, the Personal Representative should record a certified copy of the Judgment of Final Distribution in the county in which the real property is located. Recordation of the order is considered to be a Receipt from Distributee for the property.

A Receipt from Distributee should be required from each distributee at the time property is distributed to him or her under an order for final distribution. Each receipt should be filed with the court prior to filing a petition for final discharge.

Distribution of the estate assets in compliance with the court order entitles the Personal Representative to a full discharge with respect to property included in the order. A decree of discharge protects the Personal Representative from subsequent suit for alleged misdeeds during the term of administration.

Until the entry of an order discharging the Personal Representative, the administration of the estate is not completed, and the court continues to have power over the Personal Representative for the purpose of compelling execution of its orders.

When the Personal Representative has complied with the terms of the Order for Final Distribution and has filed the appropriate receipts, the court must, on ex parte petition, make an order discharging the Personal Representative from all liability incurred thereafter. After discharge, the Personal Representative should notify the Internal Revenue Service and the Franchise Tax Board that he or she is no longer acting as fiduciary for the estate.

The Judicial Council form, Ex Parte Petition for Final Discharge and Order (DE-295/GC-395)  should be filed with the Clerk's Office, who will arrange to have the petition submitted to the judge for signature.