What Is the Job of the Personal Representative?
When someone passes away and his or her estate needs to go through probate, the point person for that activity is the executor. In Minnesota, this person is referred to as the personal representative, but you may also hear them called the estate administrator.
The job of the personal representative includes:
- Filing the will with the court, if necessary
- Giving notice to the legal heirs and the beneficiaries of the estate
- Publishing notice to creditors
- Locating and inventorying all the assets of the estate, including getting appropriate appraisals of assets if necessary
- Managing the assets of the estate during the time it takes to probate them—specifically protecting them so they are preserved for heirs
- Filing necessary tax returns and paying any taxes associated with the estate
- Paying any bills of the estate and settling estate debts with creditors
- Distributing the remaining assets of the estate to heirs in keeping with Minnesota estate law and any wishes documented by the deceased in a will, if one exists
- Preparing any necessary reports for heirs or the court regarding the estate
- Completing the final accounting and reporting so the estate can be closed
How Is a Personal Representative Chosen?
You can name someone as your executor, or personal representative, in your will. This allows you to name someone you trust and who you feel would do a good job. However, naming someone in your will doesn’t mean they are automatically the personal representative.
The person must be approved by the court. A judge appoints personal representatives in cases involving formal probate while a Probate Registrar appoints them in cases involving informal probate. In either case, the court must determine whether the person appointed meets the requirements and is “suitable” as a personal representative.
As long as they meet the legal requirements for the position, anyone named as the executor in the will gets first priority. If there is no personal representative named in the will or the person named is deemed unsuitable by the court (or turns down the nomination), the following list of people is considered in this order:
- Any surviving spouse listed in the will to receive property
- Other individuals listed in the will to receive property
- Any surviving spouse not listed in the will to receive property (or in cases where there is no will)
- Any other heirs in cases where there is no will
- Any creditor of the estate (though creditors can only be named if it has been 45 days or more since the person passed away)
- A conservator in certain situations when it has been 90 days since the person passed away
Most people would not want one of their creditors to be their executor, so it’s important to have a will for this purpose.
What Happens if the Personal Representative Doesn’t Probate the Will?
Once named and approved by the court, the personal representative actually has a legal obligation to probate the estate. They must do so to the best of their ability according to state law.
However, simply because someone has an obligation to do something doesn’t mean they will actually do it, or do it well. So what happens if the personal representative fails in their duty?
First, the assets cannot be legally transferred into the ownership of the right parties. They simply remain in the name of the deceased individual. This can be problematic, because heirs may be waiting on the transfer of asset ownership so they can benefit from the assets in some way. Adult children, for example, may want to sell a home that was owned by their parent and split up the proceeds. Instead, they are left with a home they might still have to care for without being able to profit from it.
Second, the personal representative may not be able to—or be willing to—do the work to settle estate taxes and debts. Creditors may come calling because they have not been paid. They may even sue the estate. The longer this drags on, the more interest, fees, and other expenses the estate may incur, reducing any inheritance.
Finally, if the estate isn’t probated, there isn’t a legal arena where heirs or others can contest the will if they think it may be invalid.
Can You Get Another Personal Representative?
Yes, if you don’t believe the personal representative is living up to the obligations of his or her position, you can file a petition with the court. The petition should state your objection to the personal representative and why you think they should be replaced. The court schedules a hearing on this petition. You’ll need to notify all other interested parties about the hearing, including the personal representative.
If you are an heir and believe that the actions or inaction of the personal representative resulted in financial loss to you, a lawsuit may be possible. Damaged parties can sue the personal representative and try to recover their losses if they can show that the personal representative was at fault.
Get an Estate Planning Professional Involved
While most personal representatives operate in good faith and try to do the best possible job they can with probating a will, there are exceptions. By working with an estate planning lawyer, you can plan ahead for leaving a legacy to loved ones which doesn’t depend wholly on whether someone handles your estate responsibly. For example, you might create a revocable trust to pass on assets to loved ones without the need for probate.
To find out more about how an experienced estate planning lawyer can help—whether you’re planning for the future or dealing with probate issues now—contact the Stone Arch Law Office at 612-662-6892.