The fundamental duties of a personal representative (also known under the old terminology as an “executor” or “executrix”) of an estate are the same as those of a trustee–protecting the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have your plan in place.

Here is some background.

What should I know about the probate process?

A personal representative is required to prepare and file an inventory and a list of claims after the representative is approved by the court. The timeframe for this important chore is set by statute. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary. The claims include debts due and owing to the estate (not debts the estate owes to another party). The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate’s assets and claims. [Beneficiaries want to know what they might get and creditors want to know if there is enough money to get paid.] If the inventory is filed late, the representative could be fined and removed, which would slow down the process (and raise tempers).

One thing to realize if you are a beneficiary is that the will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. The representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma’s house with a moving truck and start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything stays where it is until probate is closed.

As noted above, the representative also must to keep the administration process moving along by settling all of the decedent’s debts. He or she must give proper notices to creditors, to include making publication in the appropriate newspaper. The thing is some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent’s bills immediately, which is not necessarily good. 

So as you can see, conventional wisdom does not always apply!

The representative must keep the beneficiaries in the loop, to include providing each with notice, using proper legal procedures, that the will has been admitted to probate. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting by the independent executor.

The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative is able to sell any property that is perishable or would deteriorate in value during the probate process, but again, proper procedures must be followed.

As you can see, being a representative is a big, big job, and even an innocent misstep can be costly. The representative may be subject to a lawsuit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with a many other details.

It’s okay to ask for help.

So you see, there is more than a little pressure on the personal representative. As a result, it is essential that the representative work in concert with an experienced estate planning attorney to guide the representative or beneficiaries during this process … and avoid all of the hidden landmines. At the Law Office of Michael DellaMonaca, we can help.