Making DistributionsShow Table of Contents
A distribution is the delivery of cash or an asset to a given heir. After resolving debts and paying any taxes due, the executor should distribute the remaining estate to the heirs in accordance with the instructions in the will (or as dictated by the court).
Before making any distributions, it's best to come up with an overall estate settlement plan: how you plan to resolve debts, which assets you plan to sell, which assets you plan to distribute directly, which heirs will get what, etc.
Your goal is to resolve all debts and to allocate 100% of the remaining value of the estate, with each heir scheduled to receive the proper items and the correct overall share of the estate. It's usually easiest to try to do things in this order:
- Handle Named Beneficiaries — Define distributions for assets over which you have no control (i.e., 401Ks, life insurance policies, etc.)
- Account for Family Entitlements — Define distributions for any Family Entitlements that will be utilized
- Allocate Bequests — Define distributions for any specific bequests made in the will
- Prepare for Debt Resolution — Ensure you will have enough cash to resolve the debts, planning to sell assets if necessary
- Mark Assets for Sale or Distribution — Plan remainder of asset disposition
- Allocate Distributions — Define distributions so that each heir will get the proper share of the final estate
If the estate will not have enough free cash to resolve all debts, even after liquidating all available assets in step 5, you may need to revisit some of the earlier steps in an attempt to satisfy estate creditors, since debts generally have precedence over other estate claims.
The steps outlined above work well for an estate that can ultimately pay its bills, but if not, you will need to keep in mind that an estate must give preference to its obligations in a defined priority order (see diagram). Certain transfers (such as to IRA beneficiaries) happen automatically outside the control of the estate, and the estate itself must then ensure it has enough funds to pay all taxes, then estate administration costs, then any family entitlements, then any general debts, and with anything left over, fulfill any bequests, and finally distribute the residuary estate. If the estate runs out of money handling one priority, then subsequent priorities are left with nothing.
Note that state law determines which debts have priority over other debts, and some debts (such as funeral expenses) often have priority over family entitlements, but these specifics really only matter if the estate cannot pay all its bills (see Insolvent Estates for more details).
EstateExec makes the overall planning process easier by allowing you to mark whether you plan to sell or distribute each asset (see Reference: Asset Planning), and to define desired distributions to each heir (see Reference: Manage Distributions). You can then see at a glance which assets and heirs need more attention, and the Overview tab will show you overall estate progress.
Certain items are not passed through a will, such as life insurance, property held in joint tenancy or community property with the right of survivorship, funds in an IRA or 401K for which a beneficiary was named, stocks held in a transfer-on-death account, and so forth. You can choose to list these items as assets to help you keep things organized, but remember to create a Distribution for each with the "Reason" identified as "Beneficiary".
California allows a surviving spouse and children to claim certain entitlements that supersede most other estate claims, in the following cumulative order:
Personal Property Exemption
A surviving spouse or any minor children of the decedent may petition the court for personal property up to:
- $3,625 in one motor vehicle
- $9,525 in jewelry
- $19,050 personal property used in a common business or trade
- $3,825 in material to maintain or repair the residence
- $1,826+ in a deposit account
A surviving spouse or any minor children of the decedent may petition the court to remain in the home, even if the home was intended to be given to someone else. If granted, the exemption typically also covers the basic personal property in the home, such as furniture and appliances.
A probate homestead grant is not automatic: any mortgage still applies, and the court will consider the needs of the surviving spouse and minor children, the liens and encumbrances on the property, the claims of creditors, the needs of the heirs of the decedent, and the intent of the decedent with respect to the property.
It is also not forever. The exemption should be for a limited time, and cannot exceed the lifetime of the surviving spouse, or the passing into adulthood of any minor children (whichever comes later).
A surviving spouse and any minor children are entitled to a reasonable family allowance out of the estate to maintain their current standard of living during the administration of the estate. If the estate is insolvent (i.e., cannot pay all its debts), then the allowance terminates after at most one year.
Surviving Spouse Elective Share
Since people commonly ask, note that CA has no notion of a surviving spouse elective share (since the state is already a community property state).
Wills sometimes specify that certain assets or dollar amounts are to be distributed to certain heirs. Such bequests should be generally be handled before dealing with the residuary estate, in which percentages of the remaining estate are allocated to the appropriate heirs. You can mark these bequests via the Distribution dialog (see Manage Distributions).
However, not all bequests can be honored: sometimes the asset is no longer part of the estate; sometimes the bequest conflicts with local law (e.g., community property); sometimes the asset must be sold (as a last resort) in order to pay estate debts.
The process of reducing bequests is called abatement, and any required reductions are typically made proportionately to the recipients. For example, if the estate is worth $50K and there are several bequests that total $100K, all bequests would be reduced by 50%. Similarly, if the will bequeaths three pianos to a particular heir, and there are only two pianos in the estate, then the heir would receive just two pianos. And if there were no pianos in the estate, then that bequest would remain unfulfilled (known as ademption). Even if the estate has plenty of money left over, the executor cannot "make up" for an abatement or ademption; in this example, the executor cannot buy the heir a piano using other estate funds, or just provide extra cash in lieu of the piano.
The will usually specifies a percentage that each heir should receive of the residuary estate (the residuary estate is the amount remaining after all debts and obligations have been satisfied, and any specific bequests handled). For example, if the will says that Sally should get 40% of the residuary estate, and the estate is worth $200K, then Sally is entitled to $80K worth of assets and cash, and all of the defined distributions for Sally should add up to $80K.
Tip: You can enter these target percentages on the EstateExec Heirs tab, and as you define distributions, see how you are doing in reaching these targets in the Heir Target Allocation chart on the Overview tab (for additional tips, see EstateExec Reference: Manage Distributions).
In some cases, a decedent dies with an heir (or multiple heirs) owing the decedent money. As an executor, you do not have legal authority to simply forgive (i.e., cancel) such debts: it would be unfair to the other heirs. The heir to whom the money was lent can either repay the estate the amount owed, or you can distribute the loan as an "asset" to some other heir, or you can deem that such repayment has been made as a portion of the inheritance otherwise owed that heir. For example, if an heir owes the estate $10K, and is entitled to $50K in distributions from the estate, you can distribute that $10K loan "asset" to the heir, and plus $40K in other distributions.
A charitable donation is really just an estate distribution to a particular type of heir (a charity). The executor does not have the right to give away items of value to charities unless specifically authorized by the will or the court.
Distribution Completion and Receipts
Actually making distributions to heirs is usually one of the last things the executor does in settling the estate. Although it is best practice to make all the distributions at the end of the process, it is usually permissible to make some distributions earlier if desired (see Early Distributions).
It is good practice to require all heirs to sign a receipt for any distributions (the receipt can cover multiple items). When making final distributions to an heir, it is also good practice to have that person sign a document (perhaps prepared by an attorney), stating that he or she approves of your actions as executor and confirms that he or she has received everything due.
Discount $$: EstateExec users can access significant discounts on third-party shipping services (see Task: Make all distributions).
See also EstateExec Reference: Manage Distributions for specifics about using EstateExec to organize, plan, and document distributions that satisfy the directives of the will (and/or the court).