Probate is a court-supervised process where an executor or personal representative
pays off the decedent’s debts, transfers legal title of the decedent’s
property to the heirs, pays the decedent’s taxes and distributes
the remaining assets to the beneficiaries.
If there was a will, the person named in the will as the executor is usually
appointed to settle the estate. However, such person has no authority
to act until they have been appointed by the court.
If the executor does not want to serve as the executor, or if no one is
named in the will, or if there is no will, the court will appoint someone
to serve as the personal representative or administrator.
Can anyone be the personal representative?
Generally, executors and personal representatives do not have to be legal
or financial professionals, but they should be a person of strong moral
character, and they should be honest, loyal, impartial and diligent.
They must act in good faith and for the benefit of the estate and the beneficiaries.
This is called a “fiduciary duty.” Personal representatives
cannot engage in self-dealing, nor can they be biased towards one heir
over another.
If a personal representative fails to perform their duties, they may be
held personally liable for any of the following:
- Poorly managing the estate’s assets,
- Overpaying the creditors,
- Failing to file tax returns in a timely fashion,
- Giving property to the wrong beneficiary,
- Selling an asset without proper authority,
- Failing to collect money that is owed to the estate, or
- Distributing assets or property to beneficiaries before all creditors are paid.
If you’ve been appointed as a personal representative, you’re
not required to hire a probate attorney, but it’s wise if you’re
dealing with a complex estate. An experienced lawyer will help you avoid
preventable mistakes and delays.
If you have minor issues with heirs, an attorney can help, however, the
lawyer represents you, not the beneficiaries. To find a probate lawyer
near you, use our directory!