Who is responsible for handling the probate process?
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UPDATED: Jun 19, 2018
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The personal representative (sometimes referred to as the Executor or Executrix or the Administrator or Administratrix) is appointed as part of the probate proceeding and has the responsibility of managing the estate throughout probate, subject to established probate rules and procedures of the state where probate is held.
When There Is a Will
When there is a will, the deceased will usually have named or nominated a personal representative and possibly alternate personal representatives in this document. The personal representative named in a will is not obligated to serve and may choose to resign at any time.
If the named personal representative declines to serve, or resigns after serving, the alternate named in the will typically is then appointed by the probate court. If none of the people named as personal representative are willing or able to act, the probate court will appoint someone else.
Unless state laws require that another family member or beneficiary wishing to serve be appointed, and such family members or beneficiaries are qualified, willing to serve, and readily available, it is not unheard of for a probate court to select a “political crony” or a trust company that has made contributions to the judge or the judge’s political party to serve as the personal representative, as the fees sometimes can be quite lucrative.
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When There Is No Will
When the deceased has passed without having created a Last Will and Testament, one of the people who would receive property under the laws of the state if there is no will (such as a spouse or child) will often be chosen to act a personal representative.
How Much Control Does the Personal Representative Have?
In many states, the probate court has a considerable amount of control over the activities of the personal representative, and requires that she or he obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate, may take place. The personal representative also has to post a bond in some states, unless the will specifically says that he or she is to serve without bond.
The job of the personal representative can be a thankless one. Fingers start pointing quickly at the personal representative if things don’t go the way family members expect.
Since the personal representative is bound to carry out the terms of your will or the rule of property division in your state when there is no will (intestate succession) and obey the laws of the state, pick someone who is honest, responsible, organized, and likes numbers. An attorney or accountant is an obvious choice, though these experts can always be hired by the personal representative if complex legal, tax, and accounting issues are involved. Consider a personal representative who has a personal interest in your family, is familiar with your affairs (but not have a conflict of interest), has people skills, and the competence and maturity to do the job well.
Is the Person Handling Probate Compensated?
A personal representative receives out-of-pocket expenses in managing and settling the estate and usually earns a fee of about 2% of the probate estate for his or her work. (This varies moderately from state to state, and the percentage generally decreases as the size of the estate increases.) The court may allow additional fees in cases of unusual difficulty or extraordinary circumstances.
If a person is both the sole beneficiary of the estate, and the estate is not subject to federal estate tax, it usually does not make sense to take any fees as all, since the personal representative would have to pay income tax on the fee, but would not pay taxes on the same money received as an inheritance.
If a personal representative is derelict in his or her duty, the court may reduce or deny compensation, and the personal representative may be held responsible for any damages s/he caused. Liability may arise from improperly managing the assets of the estate, failing to collect claims and moneys due the estate, overpaying claimants, selling an asset without the authority to do so or at an inappropriate price, neglecting to file tax returns on time, distributing property to the wrong beneficiaries, etc. This means that the personal representative might wind up paying for the loss out of his or her own pocket.
Read more about the duties and responsibilities involved in probate in the following articles: