Who is legally responsible for handling probate?
When someone dies with a will, the personal representative or executor they name will be responsible for handling probate under the control of the state’s probate court, in most cases.
When there is no will, the court will appoint an administrator who manages the estate and probate based on the state’s probate laws.
In most states, the probate court maintains a great deal of oversight over the executor or administrator’s actions and requires permission to do certain activities like selling property.
Can there be more than one personal representative?
Serving as a personal representative is a major responsibility and requires a great deal of time. It is possible for someone to name more than one person to act as executor of the estate. This can come with downsides as the co-executors must act together and agree on everything. This can be inconvenient and cause delays.
Is it required for the personal representative to live in the decedent’s state?
Each state has its own laws regarding personal representatives. In most states, it isn’t strictly necessary for the executor to live in the decedent’s state but it certainly makes the process easier and faster.
What are the main duties of a personal representative of an estate?
The executor has many responsibilities during probate. The personal representative’s primary duties include:
- Identifying and creating an inventory of the assets of the estate
- Determining which, if any, assets fall under probate
- Receiving any payments due to the estate
- Opening an estate checking account
- Appraising or valuing estate assets
- Determining who will receive what from the estate
- Giving notice to potential creditors
- Investigating claims against the estate
- Paying outstanding debts and claims
- Paying expenses to administer the estate
- Handling paperwork which includes notifying Social Security of the death, court documents, and discontinuing utilities
- Distributing property and assets to beneficiaries
- Filing final taxes
If I am named as the personal representative, do I have to accept?
Being an executor is a major job. If you are named an executor, you do not have to accept. If you agree to serve as the personal representative, you can also resign later if the job is too difficult. The alternate person named in the will can be appointed by the probate court if you refuse the job or the probate court can appoint someone else.
Are personal representatives usually paid?
There is no requirement that the executor be paid, but most receive compensation for the work they do. Personal expenses are always paid and the representative usually receives a fee of around 2% of the estate’s total value. In some states, this is mandated by law. The fee usually gets smaller as the estate’s value grows.
Any funds paid to the executor must be approved by the probate court. In some circumstances, additional fees can be awarded.
What happens if the personal representative fails to perform their legal duties?
One of the reasons many people refuse to be an executor is the legal liability they face. An administrator or executor who does not perform their duties can face personal liability for any damages they cause.
There are many circumstances in which an executor can be liable, such as selling assets without authority, mismanaging assets, failing to collect money due the estate, overpaying creditors, failing to file taxes on time, or distributing assets to the wrong beneficiaries.
Any of these errors (and others) can cause the personal representative to face out-of-pocket costs.
Who can or can't be a personal representative of an estate?
As a general rule, anyone can be an executor if they are over 18. Some states bar felons from serving as executors. There may also be limits on out-of-state personal representatives who may need to be a primary beneficiary or obtain a bond.
If the court needs to appoint a personal representative or an administrator, they typically choose from this list in the following order of priority:
- The person named as the personal representative in the will
- A surviving spouse who is a beneficiary
- Other beneficiaries
- Surviving spouse who is not a beneficiary
- Other heirs
- Someone chosen by a creditor and approved by a probate judge