Defination & Duties Of Personal Representative/Executor
1. Who is legally responsible for handling Probate?
When someone dies with a will, the personal representative or Executor they name will be responsible for handling Probate under the control of the state’s probate court, in most cases.
When there is no will, the court will appoint an administrator who manages the estate and Probate based on the state’s probate laws. There is compensation for the personal representative or Executor for taking up the Probate’s responsibilities, just as much as the attorney fees. That is why family members struggle to be in that position, and have the authority and reward at the same time. Many personal representative or executors waive their share of fees at their own will.
In most states, the probate court maintains a great deal of oversight over the executor or administrator’s actions and requires permission to do certain activities like selling property.
There is an endless amount of work to be done by the personal representative or Executor. Feel free to request the list of the responsibilities of the personal representative or Executor.
2. Can there be more than one personal representative?
Serving as a personal representative is a significant responsibility and requires a great deal of time. Someone can name more than one person to act as Executor of the estate. This can come with downsides as the co-executors must work together and agree on everything. This can be inconvenient and cause delays. If these two people can agree upon everything, do we need to make the process more complicated, sometimes it appears the law is blind.
Like everything else in life, a family has to decide who is the right person to do a particular job. Yes, more people in the driver’s seat can cause more challenges for the estate. Do what is suitable for the estate; rewards and regrets are all yours!
3. Is it required for the personal representative to live in the decedent’s state?
The personal representative can be living anywhere in the universe and still carry out the duties for Probate in California. Many PRs are situated in any of the 49 other states and perform their probate duties in California.
The probate process will be conducted in a “court” based on the decedent’s “residence.” More precisely, it is not based on the “place” of death if someone was traveling or visiting and died away from their home state. The brief answer is “no.”
4. What are the primary duties of a personal representative of an estate?
The Executor has many responsibilities during Probate. Please feel free to ask for the link to download the duties of a Personal Representative. The personal representative’s primary responsibilities include:
- Identifying and creating an inventory of the assets of the estate
- Determining which, if any, assets fall under Probate
- Receiving any payments due to the estate
- Opening an estate checking account
- Appraising or valuing estate assets
- Determining who will receive what from the estate
- Giving notice to potential creditors
- Investigating claims against the estate
- Paying outstanding debts and claims
- Paying expenses to administer the estate
- Handling paperwork, which includes notifying Social Security of the death, court documents, and discontinuing utilities
- Distributing property and assets to beneficiaries
- Filing final taxes
Out of all in the list, the most neglected or overlooked piece is the Discovery. Most of the assets are many times not visible to all. Since most of us like to judge the book by the cover, when you think the decedent was just an average person, he/she can have a treasure hidden somewhere. I am in the process of compiling an e-book on the discovery opportunities, and I will be happy to share it with my clients.
5. If I am named the personal representative, do I have to accept?
You want to do it or not is your choice. However, it is not your obligation to comply.
If you take up the responsibility, you can get paid. How much? as much as the Attorney. You may choose not to get paid and put that money in the family pool.
Being an executor is a significant assignment. All people are not multi-taskers. It involves discovering, handling, and distributing money, financial assets, jewelry evaluations, family memorabilia, and all kind of stuff with a lot of emotional value for the family. Simple things can turn the family into a Jerry Springer show. Like, it can be an old worn, ripped, filthy baseball glove grandpa used when he was in his teens, worth only two bucks in a flea market, yet for another heir, it can be a priceless procession to cherish for generations.
If you are in the driver’s seat, you have the “control” and an “opportunity” to do what matters to the family. I have been there, so I comprehend the helplessness of heirs when wrong people get control of the estate. Be brave, gather your courage and honor the decedent’s decision if you possibly can. You have tons of resources and help at your discretion. We are not living in old times, and technology has evolved to fill in life’s deficiencies if any.
If you are named an executor, you do not have to accept. If you do not feel comfortable or confident executing all the duties promptly, let someone else take over. Halfway through the journey, if you can resign for any reason, it will add to the frustrations and costs. Not taking PR’s responsibility is a better option than getting fined by the court or sued by the heirs for poor or non-compliance. The probate court can appoint the alternate person named in the will if you refuse the job, or the probate court can appoint someone else.
You have a fiduciary duty to the court and heirs. Of course, the Realtor and Attorney are your two arms; choose the best you can find.
Be brave and fire if you feel suffocated by the other participants like the Attorney, realtor, contractor, buyer, or another party. You are in charge of the assignment. I will be happy to hold your hand all the way; let’s talk. I am a full-time probate realtor and wholeheartedly dedicated to probate real estate.
I am only a phone call away. Here is my Contact info. Cell: 949 748-9834 deepak@HousesInSoCal.com.
6. Are personal representatives usually paid?
There is no requirement that the Executor is paid, but most receive compensation for their work. Personal expenses are always paid, and the representative usually receives a fee of around 2% of the estate’s total value. In some states, this is mandated by law. The fee rates proportionally get smaller as the estate’s value grows.
The probate court must approve any funds paid to the Executor. In some circumstances, additional fees can be awarded. However, they earn for their task as much as an attorney in most cases.
7. What happens if the personal representative fails to perform their legal duties?
One of the reasons many people refuse to be an executor is legal liability. An administrator or Executor who does not perform their duties can face personal liability for any damages they cause to the estate.
There are many circumstances in which an executor can be liable, such as selling assets without authority, mismanaging assets, failing to collect money due to the estate, overpaying creditors, failing to file taxes on time, or distributing assets to the wrong beneficiaries.
Any of these errors (and others) can cause the personal representative to face out-of-pocket costs. Be careful of the heirs; they can turn things around quickly. The best way is to take them all along, keep them notified of the decisions you make.
Do everything by the book; there is plenty of flexibility for the Executor or administrator to care for things without losing sleep. Keep an experienced attorney and probate realtor by your side, and this can be a long journey. You cannot rush Probate, but most definitely, multiple activities can go on simultaneously. I will be happy to share my knowledge and resources if you feel I am the right person to be on your team. But, again, if you don’t connect with a trained and certified realtor, you can fall prey to an investor.
8. Who can or can’t be a personal representative of an estate?
As a general rule, anyone can be an executor over 18—some states bar felons from serving as executors.
There may also be limits on out-of-state personal representatives who must be primary beneficiaries or obtain a bond.
If the court needs to appoint a personal representative or an administrator, they typically choose from this list in the following order of priority:
- The person named as the personal representative the will
- A surviving spouse who is a beneficiary
- Other beneficiaries
- A surviving spouse who is not a beneficiary
- Other heirs
- Someone chosen by a creditor and approved by a probate judge
I will look for the best interest of the estate. Here is my contact info Cell: 949 748-9834 deepak@HousesInSoCal.com
