There are a number of factors to consider before agreeing to take on the responsibility of serving as Personal Representative of someone’s estate. If a friend or family member has asked you to serve in any of these roles, it is important for you to think carefully about your ability to take on the responsibilities of the role and whether you are prepared for the legal obligations expected of you. As an attorney who practices in the estate settlement area, I have helped numerous Personal Representatives successfully handle estate administrations. The job of Personal Representative, however, can be somewhat daunting to someone who has never had the experience of serving, and should not be taken lightly.
A Personal Representative (also called “Executor”) is the person appointed to administer the estate of someone who has passed away. The Personal Representative is responsible for gathering and safeguarding the assets of the deceased, ensuring that all debts and expenses of administration are paid, and distributing the deceased person’s assets to the beneficiaries named in the deceased person’s Will. In addition, the Personal Representative is responsible to report to the Court during the various stages of administration of the estate.
Importantly, being named in a person’s Will is only a nomination, not an actual appointment. Before serving, a person nominated as Personal Representative must first be appointed by the court before they can officially serve in that capacity.
What factors should you consider when deciding whether or not to accept the nomination?
- Do you have the skills necessary to serve? A Personal Representative must be well-organized, detail-oriented, and have the ability to take on the responsibility of handling the financial assets that belong to the estate.
- Do you have the time necessary to serve? Consider how close you live to the decedent. The estate will be handled in the county where the deceased passes away, and there will likely be financial institutions, agents, accountants and legal professionals that you will need to meet with in the decedent’s county of residence. There may be multiple beneficiaries that require your time and patience to explain the process and timelines.
- Are you comfortable with the responsibility of acting as a fiduciary? A fiduciary’s duty is the obligation to act in someone else’s interest rather than your own. While that may seem like a common-sense approach to handling the estate of someone who has died, the most common disputes in probate administrations involve accusations that a personal representative has breached their duty to administer the estate in the best interest of the beneficiaries.
What if you decide not to serve? If you consider all of the factors and decide you do not want to take on the role as Personal Representative, the next steps depend on timing.
- Before Death Occurs
If someone asks you to serve as Personal Representative or notifies you that they have already named you in their Last Will and Testament, you can still decline the role. Simply advise them that while you are honored to be considered, you are unable to accept. If the Will has already been prepared, they will need to notify their attorney that an amendment, or Codicil, will need to be prepared to change the provisions regarding the nominated Personal Representative.
- After Death but Before Appointment
If you are nominated in the Will, but have not yet been formally appointed, you can notify the beneficiaries and heirs that you do not intend to serve. You should then file a Declination to Serve with the probate court. Most Wills provide for an alternate Personal Representative to serve in the event the first nominated Personal Representative is unwilling or unable to serve.
- Resignation After Acceptance
If you have already been formally appointed as the executor by the probate court, but wish to resign, you must file a formal resignation with the probate court. The court may require a hearing to accept the resignation and notice will need to be given to the heirs and beneficiaries before a new Personal Representative can be appointed. You may continue to have ongoing responsibility to protect the estate until the new Personal Representative is issued letters of authority to act on behalf of the estate.
Relinquishing the responsibility to act as Personal Representative should not be taken lightly. If you have already been appointed by the court, it is important to seek legal advice about best practices for discontinuing your responsibilities while protecting the estate and the rights of the heirs and beneficiaries. Please reach out to one of our experienced estate planning attorneys to help with this process.