When a loved one dies, the emotional aftermath will be the immediate focus. But soon thereafter, the focus must shift to financial and legal matters. And the person responsible for initiating and organizing those matters is the personal representative of the estate (also known as the executor). So, when writing a will, the choice of personal representative may be the most important decision you will make.
Knowing the general scope of the personal representative’s duties may help you make the decision. While family members, trusted friends or business associates may seem to be the obvious choices, you must be sure that your personal representative can handle the quantity of the work involved, which, depending on the size of the estate or even the availability of information about the estate, can be significant.
First of all, the personal representative is legally responsible for making sure that the estate’s assets are protected and preserved pending the end of the probate process and the distribution of assets according to the will. While events beyond your control, such as the value of investments declining, will not be blamed on you, you are responsible for making sure that family members don’t walk away with items that have been promised to them, like jewelry or china, before the estate is settled because the value of those assets may be needed when paying creditors from the value of the estate.
The first two steps the personal representative should take are (1) finding the will and (2) obtaining death certificates. Obviously, you need the will to file it with the probate court to open the estate. And the term “the will” means exactly that – it can’t be a photocopy of the will or an unsigned original that was never executed. If you are lucky, you will know exactly where the will is because you were told when you were named personal representative. But, unfortunately, this isn’t always the case. You may have to comb through documents, safe deposit boxes and even ask other family members.
Obtaining death certificates is necessary for everything from filing claims for insurance benefits to accessing bank accounts. For insurance purposes, the official cause of death listed on the certificate will determine whether benefits are paid (some policies exclude payment of benefits if death is caused by a reason excluded from the coverage). While funeral directors can often be helpful in making the request for the certificates, the personal representative must make sure that he or she has as many as are needed to file each claim and notify any other necessary party.
Once the will has been filed and the death certificates obtained, the third step is to legally accept your appointment as personal representative. If you choose to serve as personal representative, the probate court will issue “letters testamentary” which is a certified document that you will present whenever you have to act on behalf of the estate.
You may also choose NOT to serve, even though you are designated to serve in the will. If these necessary steps seem to be more than you can or are willing to do, you may decline to serve. If an alternate is named in the will, then that person can be appointed. If there is no alternate, or the alternate also declines, the probate court will name someone to administer the estate.
These are just the first steps required to start the probate process. Depending on the size, complexity and value of the estate, the process can last from a few months to a few years. The personal representative must be willing to see the estate through from start to finish. So, when making your will, carefully consider this decision and ask your estate planning attorney for his or her input.
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