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Summary

A Personal Representative -- known in some states as an Executor (Executrix) or Personal Administrator -- is the person who is responsible for carrying out your wishes and administering your estate after your death.

A Personal Representative is appointed in a Will. While the appointment is subject to the approval of the probate court in your local jurisdiction, judges will usually go along with your choice unless there is a good reason not to do so. This should not be a problem if you choose carefully both your Personal Representative and a person to take over in case your first choice cannot serve or decides not to serve.

Before a person can serve as a Personal Representative, courts generally require a type of insurance policy known as a bond to assure faithful performance. Bonds cost money. In your Will, you can request that the requirement for a bond be waived.

Assure your wishes will be carried out by discussing your wishes with your Personal Representative.

If you die without a Will, or don't name a Personal Representative, a court will appoint an Administrator. It is preferable for you to make a choice. A court appointed representative may not know anything about you or your loved ones.

For more information, see:

Why Do I Need To Appoint A Personal Representative?

If you don't appoint a Personal Representative in your Will, the court will appoint an Administrator. The person the court appoints might not be the best person for the job, may have no personal knowledge of your heirs and their needs, or could try to undermine your wishes.

What Does A Personal Representative Do?

The legal duties of a Personal Representative vary from state to state. In general, a Personal Representative will:

  • Locate your Will and the people who witnessed it. It may not be necessary to locate the witnesses if they executed an affidavit about the execution of your Will. To learn more, see How To Make Your Will Challenge Proof.
  • Deliver the Will to the courthouse and petition the court for formal appointment as Personal Representative.
  • Decide whether or not probate court proceedings are needed. If your estate is worth less than a certain amount (which varies by state), probate may not be required.
  • Place ads in local newspapers to notify creditors of your death if required by law or the court. Creditors then have a set period of time in which to file a claim against your estate. The average period of time is six months.
  • Locate your beneficiaries, let them know a Will has been filed, and that they are named as beneficiaries in the Will.
  • Communicate with the people who would receive your estate if you did not have a Will so they will be given a chance to contest the validity of the document filed as your Will.
  • Pay your final expenses, such as funeral and burial expenses.
  • Pay your debts and taxes. Taxes include a final income tax return and, if necessary, an estate tax return.
  • Find and manage your assets during the probate process. If you have a business, this can include running the business.
  • Handle day-to-day details, such as terminating your credit cards and notifying banks, the post office, and the Social Security office of your death.
  • Distribute assets to beneficiaries according to your Will or, if you don't have a Will, according to the intestacy laws in your state (the laws that describe what happens to assets if a person dies without a valid Will).

Does A Personal Representative Get Paid?

A Personal Representative is legally entitled to payment for serving.

Ultimately the probate court decides the amount of the fee -- generally by following recommended guidelines in state law. The guidelines usually call for the Personal Representative to receive a percentage of the value of your property. The overall range can be as high as 7% of the value of your estate if your estate is small, decreasing to 1 -- 2% of the value of larger estates.

If your Personal Representative is a close relative or friend, she or he can choose to take less than the statutory fee -- or to waive the fee altogether.

Whom Can I Legally Choose As A Personal Representative?

Each state has limitations on who can be your Personal Representative.

In general, you can't name a minor, a convicted felon or a non-U.S. citizen. Some states also don't allow you to name someone who lives in another state or, if they do live out of state, require that the person must be a relative or primary beneficiary under your Will.

Is The Person I Choose Required to Serve As Personal Representative?

No. A person is not legally obligated to serve as Personal Representative. Even if a person does, she or he can resign at any time.

How To Choose A Personal Representative

There are many things to consider when choosing a Personal Representative. For example:

  • Is the person capable of handling the responsibilities described above ("What Does A Personal Representative Do?")? If not, is he or she capable of hiring appropriate people to handle those responsibilities? To then oversee that person's work? 
  • Does the person have the qualities described in Qualities To Look For In A Personal Representative.

Do you want to name one person or would you prefer two people to act as Co-Personal Representatives? 

  • If you name more than one person as Personal Representative, keep in mind that they may disagree about some decisions. If the matters over which they have discretion are important to you, consider providing guidelines to help them make their decision. Also provide a mechanism to break a tie. For instance, you could name a third party to make the decision in the event of a stalemate. Or you could provide that in certain matters, the vote of one person controls. In other matters, the vote of the other person or entity controls.
  • If your estate is large or complicated, consider appointing a bank or other institution to act as a Co-Personal Representative together with an individual or individuals of your choice.

 

For safety, your Will should include a successor Personal Representative - someone to take over as Personal Representative in case any person you name as Personal Representative dies before you, is unwilling or unable to serve, or decides to stop serving as Personal Representative. Be sure it is clear that the person is to be an alternate rather than a co-Personal Representative if that is your desire.

In case it helps, people often look to their spouse, significant other, or their child with the most legal or business savvy to fill the role of Personal Representative.

What If I Want To Change My Choice Of Personal Representative?

If you want to change your designated Personal Representative, you'll need to amend (change) your Will.

Be sure to have the amendment executed with the same formality as the Will was executed. To learn more, see Writing Your Will and How To Make Your Will Challenge Proof.

Make it clear in the amendment whether it overrides everything in the original Will or only a particular part of it -- and if so, which part. For more information on writing a will, see Writing Your Will.

If You Are An Attorney Or Have An Attorney Who Is Willing To Share Information

Please provide information relating to the content of this article particular to your state. For instance:

  • Is the person who administers an estate called an executor or personal representative or….?
  • Are bonds required? When are they waived?
  • Changes to the information in this article to make this article more relevant to residents of your state (for example, the name of the overseeing court).
  • Other facts that are unique to your state.

Please send your suggestions, with citations, to dlanday at survivorshipatoz dot org.

Qualities To Look For In A Personal Representative

Ideally, a Personal Representative is someone who:

  • Can understand your wishes.
  • Agrees to carry out your wishes even if s/he disagrees with them.
  • Is responsible enough to actually follow through.
  • Is honest.
  • Is organized, detail-oriented and at least somewhat knowledgeable about finances. Personal representatives have the legal authority to bring in needed experts such as accountants, financial advisors or lawyers. The more work your Personal Representative does, the less the attorney has to do -- and the lower the attorney's fee can be. On the other hand, if the estate can afford an attorney, the person you choose could work with an attorney who can handle the details of the estate.
  • Is likely to live longer than you -- and long enough to complete the administration of the estate. (It generally takes at least 6 months to a year to settle an estate. Sometimes it takes a good deal longer.
  • Lives nearby -- preferably in the same state. Living nearby avoids travel costs, long-distance phone calls, and similar expenses. Your state may also impose special requirements on out-of-state representatives. For instance, some states require an out-of-state representative to post a bond to protect your heirs in case your assets are mismanaged. Some states even require an out-of-state person to appoint an in-state agent who is available to receive legal documents on his or her behalf. 
  • Is friendly to, or at least not at odds with, your heirs.
  • Will preserve your assets prudently so they don't lose value during the settlement of your estate. If the person doesn't have investment knowledge firsthand, he or she should be able to work with your financial advisor or to choose one of his or her own. 
    • Some advisors suggest appointing a person who will inherit a substantial amount of your property. Someone with an interest in your property is more likely to do a good job of managing your estate. 
    • Avoid choosing someone if their decision about asset division could benefit themselves against one of your other heirs. Such a situation will only invite trouble among your heirs.
  • Actually agrees to do the job. The work can be like having a part-time job.

NOTE: If  you feel there is someone such as a first born child that would be unhappy if he or she were not appointed your Personal Representative, but the person doesn't have the necessary qualities, consider making him or her co-representative. The 

Does My Personal Representative Have To Be An Attorney?

No. It could be helpful if your Personal Representative knows the law, but it's not necessary.

A Personal Representative can hire lawyers, accountants or other experts and pay them from the assets of your estate. These costs -- in addition to the Personal Representative's fees -- are a deductible expense for your estate.

If you do choose an attorney to act as your Personal Representative, check to see if she or he will charge one or two fees to serve as both Personal Representative and attorney. Although your Personal Representative and attorney serve different functions, in some states only one charge is allowed if an attorney fills both functions. Even if it is allowed, for the sake of your heirs, it is preferable to only have one fee.

Discussions To Have With Your Personal Representative

Whomever you choose to be your Personal Representative, make sure she or he is willing to do the job. Before writing your Will:

  • Tell the person what you are thinking.
  • Ask if the person will serve.
  • Make sure she or he understands what will be involved.

Make sure your Personal Representative knows:

  • What is involved in general in acting as Personal Representative.
  • What will be involved in administering your estate. For example, that there may be property to sell, or a business to run.
  • Who is in charge of your funeral. If you've made arrangements, what they are, or where to find them.
  • What you want done with your assets while they're under the control of the Personal Representative. For instance, what you want sold, the best method for selling, and pitfalls to avoid.
  • Let the person know where your Will and other important personal documents are located. Also where to find a list of your assets and debts, as well as instructions for keeping things going. See Storing Your Will, Keeping A Document Inventory and List of Instructions.
  • If you want beneficiaries to receive advances against their inheritance while the estate is in probate, what guidelines to use.