James R. Balmforth: Personal Representative of the Estate

When dealing with end of life issues, people often get overwhelmed. Whether you’re deciding who should be your personal representative (also called an executor or executrix of your estate), or if you’ve been named the personal representative of a will, it doesn’t need to be complex or stressful. Here are some simple guidelines.

Who Can Be an Personal representative of a Will?

An personal representative is someone named in your will, or appointed by the court, who is given the legal responsibility to take care of any remaining financial obligations. Typical duties include:

Distributing assets according to the will, Maintaining property until the estate is settled (e.g., upkeep of a house), making court appearances for the estate with the lawyer and paying the bills and taxes for the estate.

The money to perform these duties comes from the estate itself. If the will is complex, or if significant court time is required, an personal representative may want to hire a lawyer to assist in the handling of the estate, also at the estate’s expense.

Who Should Be My Personal representative?

Typically, you can choose almost anyone as the personal representative of a will (but see below for restrictions). Most wills are fairly straightforward, and no legal or financial knowledge is typically required. As a result the most common personal representatives are, spouses, children, or siblings.

The key qualities that an personal representative needs are honesty, organization and communication. Honesty as a virtue speaks for itself. People often overlook, however, the necessity of being organized and the ability to communicate. The distribution of the will can become a mess if it is handled by someone who simply lacks these key qualities.

What Qualities Should I Consider When Choosing The Personal Representative?

In addition to honesty, organization and communication, other important considerations should also play into who you choose as your personal representative. For instance, family dynamics are extremely important in end of life issues. Who you choose can lead to in-family squabbling and will contests, so carefully consider the impact of who you choose. Whether they should or not, people read into your decisions and assume you are making judgments regarding their worthiness (e.g., naming the youngest child as the personal representative of a will because he or she is a lawyer or accountant may still be construed as favoritism).

Another basic consideration is the personal representative’s location. Things such as court appearances, checking mail and property maintenance can be considerably more difficult if the personal representative does not live near where the majority of the assets are located.

Typically, it is often helpful to select someone who stands to inherit a significant amount of property under the will. This is helpful because self-interest can help ensure that the property is well maintained, and is handled in a timely manner.

If possible during your lifetime, discuss being the personal representative of a will with the person you wish to name in your will. It is important that the person be willing to serve as the personal representative and for that person to understand where your records are kept.

Should I Name an Alternative Personal Representative?

Yes. Be aware that whoever you named as your personal representative, even if they agreed to be your personal representative during life, may decline the responsibility when it is time. For this reason alone, it is helpful to name alternative personal representatives. If you do not and your original personal representative declines the responsibility, the court will choose an personal representative for you. The less decision making you leave to a court the better, so name alternative personal representatives in your will.

Are There Any Restrictions on Who I Can Name as My Personal Representative?

Yes. Generally anyone can be your personal representative. The major exceptions to this are that children under the age of 18 typically cannot be personal representatives. Felons typically cannot be personal representatives. Some states have limitations on out-of-state personal representatives, requiring them to also be primary beneficiaries so check your state’s laws. Some states require out-of-state personal representatives to obtain a bond to insure the estate against wrongful use, so ensure that whoever you choose can cover such a bond and check your state’s laws

Each state’s laws are different, so always look into your state’s laws before naming an personal representative.

Should my Personal Representative Hire Lawyers or Other Professionals?

Yes. Many wills are fairly routine and simple, and require no specialized knowledge. Even if you go through probate court, the paperwork required does not require a legal degree. On the other hand, if there are disputes, complex property issues, significant tax liability, etc., an personal representative should seriously consider getting professional help in the form of a lawyer, or depending on the issue, an accountant. Finally, personal representatives shouldn’t be afraid to ask the court for assistance; if the judge feels that it is necessary, he or she will almost assuredly advise you to get a lawyer.