What are a personal representative’s responsibilities/obligations to the estate?

My sister is the personal representative for my father’s estate. He did not leave a will. She has flipped his house in order to get the most value out of the estate. To accomplish this she “hired” her husband as the general contrator. Can she pay herself and her husband through the estate or is this a conflict of interest?

Asked on July 17, 2014 under Estate Planning, Colorado

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

A person who has been designated as a personal representative of an estate is under a special legal obligation to the estate which is called a “fiduciary duty". As such, they must follow the instructions given by the testator (i.e. the person making the Will) and otherwise do what is in the best interests of the estate, not their own interests. This means that they must act in good faith, with care, competence and diligence in performing their duties.

That having been said, you must ask yourself in light of the above, was there an actual conflict of interest? If it can be proven that your sister's husband overcharged the estate or performed negligently in his capacity as general contractor, etc, then a conflict would appear to exist. If, on the other hand, he charged the estate at prevailing market rates and otherwise performed with care and competence, then there would be no such conflict.

Without more details of the situation it's hard to advise further. If you feel that there has been some sort of breach of your sister's fiduciary duty, then you need to consult with a probate attorney as to all of this. They will be in the best postion to instruct you as to the course of action, if any, that you should take.

 


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