Most people who land here are in the weeks or months after a death. They may be an adult child, a surviving spouse, or someone who has just learned they are the executor or the successor trustee. Now they need to hire help for a job nobody trained them for, often while other relatives wait for answers. Before anyone is called, it helps to know what each professional actually does, which part of settling the estate belongs to whom, and where California keeps the records that show a person is licensed.
What Each Professional Role Covers
Settling an estate has a legal side, a money-management side, a tax side and, often, a property side. Different licensed people handle each one.
- Attorney. An estate planning attorney creates documents such as a will or a trust while a person is alive. A probate or trust administration attorney helps carry those documents out after the death. Many attorneys do both kinds of work.
- Professional fiduciary. This is a person licensed by the California Professional Fiduciaries Bureau to serve in a fiduciary role, such as trustee or personal representative, for people outside their own family.
- CPA or enrolled agent. These professionals prepare the decedent's final income tax returns and the estate's or trust's income tax returns, and they review basis questions. Their work is tax work, not legal advice.
- Real estate licensee or appraiser. These professionals give value and market input when the estate includes real property, meaning land and buildings. Personal property is everything else: accounts, vehicles and the contents of the home.
The family roles also have exact meanings. In a probate case, the California Courts guide defines the personal representative as the person responsible for representing the estate. An executor is the person named in a will. A trustee carries out the terms of a trust. Heirs or beneficiaries are the people with a legal right to receive property. These words are not interchangeable, and a professional can explain which role a reader actually holds.
Fees vary with the type of matter, the size of the estate and how complicated it is. Each professional sets fees separately.
Attorneys: Probate, Trust Administration, and Estate Planning
Only a licensed attorney may give legal advice in this state. Cal. Bus. & Prof. Code section 6125 provides that no person shall practice law in California unless the person is an active licensee of the State Bar. The State Bar of California licenses every attorney practicing here and keeps a public attorney search.
In the settlement stage, an attorney's work often starts with whether probate is needed at all. The California Courts guide to property after someone dies says that, depending on the amount and type of property, a family may or may not need to go to court, and that an estate may need probate even if there was a will. To open probate, someone asks a judge in the Superior Court to appoint a personal representative. That person then collects the property, pays the bills and distributes what remains. If an original will is found, the guide says it must be delivered to the court. A copy must also go to the executor named in it, or to a named beneficiary if the executor cannot be found. The California estate settlement guide lays out these steps in order.
Some attorneys hold a formal State Bar designation. The State Bar's brochure, What Can an Estate Planning, Trust & Probate Law Certified Specialist Do for You?, describes the Certified Specialist in Estate Planning, Trust and Probate Law. Its requirements include passing a written examination and references from attorneys and judges familiar with the attorney's work. The brochure says certified specialists can be found through the State Bar's Attorney Search webpage.
This page does not cover contested matters. A will contest, removing a trustee or claims of executor misconduct are a different subject, handled by attorneys who litigate trust and probate cases.
Professional Fiduciaries: Licensed by the State of California
Many families reasonably wonder whether anyone other than a relative can serve as trustee or personal representative. California answers that through a licensing system.
Under Cal. Bus. & Prof. Code section 6501, a professional fiduciary is a person who acts in one of these ways:
- as guardian or conservator for two or more unrelated individuals at the same time;
- as personal representative of a decedent's estate for two or more unrelated individuals at the same time;
- as trustee, or as agent under a durable power of attorney for health care or for finances, for four or more individuals at the same time, counted under the section's rules for related people.
The section excludes several kinds of people and entities, including trust companies, FDIC-insured institutions and public agencies.
Cal. Bus. & Prof. Code section 6530 provides that on and after January 1, 2009, no person may act as a professional fiduciary, or hold themselves out to the public as one, without a license. The section exempts licensed attorneys. It also exempts CPAs and enrolled agents acting within the scope of their practice.
The Bureau's guide, What is a Professional Fiduciary? A Guide for Consumers, says that a court cannot appoint an individual as a professional fiduciary for nonfamily members unless the individual is licensed or exempt by law. It also says a court may appoint a trustee when none is named or available.
Families often consider a professional fiduciary when no relative is willing or able to serve, or when a neutral party seems wiser. A fiduciary manages assets and carries out fiduciary duties. Because of Cal. Bus. & Prof. Code section 6125, a fiduciary who is not an attorney does not give legal advice.
Tax Professionals: CPAs, Enrolled Agents, and Tax Attorneys
Tax filings continue after a death. The person who died may owe a final income tax return. An estate or trust that earns income while it is being settled, such as interest, rent or dividends, may need its own fiduciary income tax return.
CPAs. Cal. Bus. & Prof. Code section 5050 provides that, with limited exceptions, no person may practice public accountancy in California without a permit issued by the California Board of Accountancy or a practice privilege. The Board's License Lookup page explains that a California-licensed CPA has met the state's education, examination and experience requirements.
Enrolled agents. An enrolled agent is enrolled to practice before the Internal Revenue Service. In estate work, enrolled agents often prepare the same kinds of returns a CPA prepares.
Tax attorneys. A tax attorney is involved when a tax liability is disputed, or when a legal question and a tax question cannot be separated.
Basis. Basis is the starting figure used to measure gain when inherited property is later sold. Under 26 U.S.C. § 1014(a), the basis of property acquired from a decedent is generally its fair market value at the date of death. The section provides alternatives, including an alternate valuation date when that election is made. How this applies to a particular house, account or sale is a question for a CPA, an enrolled agent or a tax attorney to review. Reassessment and exclusion claims for California property tax are made through the county assessor's office.
Real Property Roles: Agents, Appraisers, and Court Confirmation
An inherited house brings more professionals into the picture, and the family's first question is often simply what the house is worth.
Real estate agents and brokers. The California Department of Real Estate licenses agents and brokers. Its consumer update, Looking for Tips on How to Choose a Real Estate Agent?, advises:
- verifying a license before hiring;
- confirming the license is current, and not expired, surrendered or revoked;
- confirming that a salesperson works for a broker.
Appraisers. The Bureau of Real Estate Appraisers' page, About BREA, says the Bureau licenses appraisers who appraise property for federally related transactions. It also says the Bureau investigates complaints against licensed appraisers.
Probate appraisal. In a probate, estate assets are valued for the inventory. Many are appraised by a probate referee, an appraiser who works with the court.
Authority to sell. Whether a sale of estate real property needs court confirmation, or can go forward on a notice of proposed action, depends on the authority the personal representative was granted and on what the will or trust says. That is a legal question for the estate's attorney to answer from the documents.
Choices about the house. A family may keep the house, rent it, list it with an agent, accept a cash offer, or share it among co-owners. Each choice has tradeoffs. A cash sale can reduce repairs, showings, financing uncertainty and time, but how well it fits depends on each family's circumstances. The choices are laid out in the guide to inheriting a house in California.
How to Find and Verify a California Estate Professional
Checking a license takes a few minutes, and it is one of the few parts of this process that is entirely within a family's control. Each profession has its own public record.
- Check an attorney's license with the State Bar of California. The State Bar's certified specialist brochure directs readers to its Attorney Search webpage, which is also where certified specialists can be searched.
- Check a fiduciary's license with the Professional Fiduciaries Bureau. The Bureau's license search instructions say to confirm the license is "active" and not expired, and that any disciplinary action appears on the licensee's page under public documents.
- Check a CPA's license with the California Board of Accountancy. The Board's How to Select a CPA page suggests confirming that the license status is clear and unexpired, and checking for enforcement actions.
- Check an agent's or broker's license with the Department of Real Estate. The Department's consumer update links to its public license information tool.
- Find probate information with the California Courts. The courts' self-help guide explains when court is needed and how probate is opened in the Superior Court.
Before work begins, the Board of Accountancy's page also describes receiving an engagement letter. The letter sets out the work to be done, who will do it, whether any of it is outsourced, how private information is kept secure, and the cost. Silver Lining Estate is an educational resource that explains these roles, and the licensing bodies above keep the official records. The estate settlement checklist shows where each professional usually fits in the sequence.
