In probate law, a personal representative is an individual who has a fiduciary role for a deceased person’s estate, such as an Executor. They are appointed with administrative duties relating to the administration and settlement of the estate through the probate process. If you have been appointed as a personal representative, you are expected to act diligently and in good faith while protecting the estate and its beneficiaries as best you can. This guide will provide an overview of the role of a personal representative in probate.
What is a personal representative?
A personal representative, also referred to as an Executor or Administrator, is the individual entrusted with the responsibility of managing the estate of a deceased person. This designation can be made by the decedent through their Estate Plan, but is not confirmed until formally appointed by the probate court.
Personal representatives hold a fiduciary role, meaning that they must carry out their duties with integrity, trustworthiness, and transparency. They must always act in the best interests of the estate's Beneficiaries. It is both lawful and frequently observed for a personal representative to also be a Beneficiary of the estate for which they serve as the Executor.
State probate codes mandate that personal representatives adhere to the provisions outlined in the deceased person's Will, assuming one exists. In cases where the individual passed away without a Will (intestate), the personal representative will assume the role of Administrator for the intestate estate. They will follow intestate succession laws to determine how estate property should be distributed to heirs.
Last but not least, a personal representative possesses the authority to make decisions on behalf of others. For instance, when an individual is seriously ill or lacks mental capacity, they can be authorized to make healthcare-related choices. In such situations, the personal representative is granted Power of Attorney, a legal authorization enabling them to act on behalf of the other person when making significant legal or financial decisions.
Personal representative vs. trustee
Through the probate process, you will likely encounter a number of legal terms that are new to you. To make matters more confusing, different terms will be used interchangeably.
The term personal representative is often utilized as an umbrella term to describe a person who is assigned a fiduciary role. Within the personal representative family, you will find the roles of Executor and Administrator of an estate. Related to these roles is the trustee, but it’s helpful to draw a distinction here as trustees only come into play when the estate includes a Trust (a legal agreement between two consenting parties.)
When establishing a Trust, it is essential to appoint a trustee. The trustee assumes the crucial role of supervising the day-to-day administration of the Trust's assets for the benefit of its beneficiaries. trustees are entrusted with making decisions that align with the best interests of the beneficiaries, thus shouldering a fiduciary responsibility to safeguard and manage their assets as best as possible.
Trustees and Executors, despite their shared fiduciary role, fulfill distinct functions within an Estate Plan. The personal representative (Executor or Administrator) is responsible for overseeing the probate estate while the trustee is responsible for managing Trusts. Both roles are entrusted with the duty of acting in the best interest of the estate and its beneficiaries.
Both personal representatives and trustees can be individuals, institutions, or a combination thereof, as co-trustees.
Personal Representative Duties
A personal representative’s overarching duty is to safeguard the estate while honoring the wishes of the deceased.
Before signing on for the task, it’s vital for the personal representative to grasp the full extent of their responsibilities. That’s because neglecting any of their official duties could lead to legal action, with potential lawsuits filed against the personal representative for breaching their fiduciary obligations.
Broadly speaking, the role of a personal representative entails various tasks such as initiating probate managing estate assets and ultimately distributing the estate's assets to the rightful beneficiaries.
Here is an overview of a personal representatives duties, which we expand on in the following sections:
1. File to open probate
In the first stage, the personal representative undertakes the crucial task of initiating the estate by filing the Petition for Probate documents.
This involves submitting various required paperwork such as the original death certificate to the Register of Wills or other similar local probate court. They must also provide an estimated value of the decedent’s estate assets (valued on the decedent’s date of passing.)
Once the probate court issues the letters of administration, the personal representative is granted the authority to open the estate and act on behalf of the estate. It is important to note that until these letters are obtained, both the designated personal representative(s) and other family members may encounter challenges in accessing information related to the decedent's assets.
2. Provide notice to heirs and creditors
Next, the personal representative must provide a legal notice of the decedent’s passing to known and potential creditors. These creditors are granted a specific timeframe (e.g. six months) to come forward with a claim against the estate. The probate court will typically provide instructions on a required published notice that will run in a local publication. Similarly, direct notices are provided to identified beneficiaries and known heirs of the estate. The published notice serves as a notification to potential heirs of the estate as well.
Once the time period elapses, the personal representative must settle any and all legitimate claims in a timely manner. Here, they should be very careful to assess the validity of claims. They can be held personally liable if they pay out any claims that turn out to be invalid. Creditors who fail to file a claim within the designated time frame will no longer be able to assert any claims in the future.
3. Take inventory of estate assets
A crucial step of probate estate involves the identification and collection of the estate's assets, including any valuable property owned by the deceased at the time of their passing.
Estates can own a wide range of assets such as real estate shares, business assets, checking and savings accounts, brokerage accounts, and any outstanding amounts owed to the deceased, such as interest and dividends.
An aspect of personal representative duties that often gets overlooked is the proper valuation of estate assets. This is a crucial step that can take a lot of time and effort and may even require professional assistance. Asset valuation can prove challenging, especially when market demand isn’t easy to predict. Here, the personal representative may need to hire a professional appraiser for the valuation of certain items. An Inventory Report and Information Report detailing each of the decedent’s assets and their market value must be submitted to the court.
4. Open an estate account
Once the probate court issues the letters, the personal representative can begin conducting general administrative duties related to the probate estate. Amongst these activities include opening a designated account for the estate, including obtaining a Federal Tax Identification Number.
This is a separate tax identification number needed to open a separate bank account in the name of the estate.
Then, they will transfer funds from the personal accounts of the decedent and pool them into this singular estate account. Any expenses, taxes, debts, and fees in connection with the estate will be paid out from this designated account. Any remaining funds will eventually be distributed amongst the beneficiaries.
5. File tax returns
In addition to the accounting and inventorying of estate assets, the personal representative is also responsible for preparing and filing any required state and federal income tax returns. These are filed on behalf of the decedent during the time that they were alive and on behalf of the estate. The decedent’s death terminates their tax year and transitions to the estate as a separate taxpaying entity.
After filing these returns, the personal representative must also pay any taxes that are assessed. There may be at least four resulting sets of tax returns:
Final income tax return for the decedent
State and federal tax returns for the estate
State and federal tax returns for the Trust
Gift tax returns
The personal representative should be careful to consult a tax professional and file the appropriate returns, even when no taxes may be due.
6. Distribute assets and close the estate
As a final step of the probate process, the personal representative will distribute any remaining assets to the estate beneficiaries. This is done in accordance with state probate laws, and when available, the terms of the Will.
Before they can carry out this step, the probate court must provide an approval, which can only be given out if all preceding probate steps are satisfied. Debts must be paid, and taxes must be filed before any remaining assets can be passed on to the decedent’s heirs.
Once the assets are distributed, the estate can be closed and the responsibilities of the personal representative finally conclude.
Personal representative duties by state
While this guide provides a general overview of personal representative duties, it is important to note that probate laws and procedures vary from state to state. This is because these laws are governed at the state level, and not the federal level. While probate estate processes tend to be similar, there may be some nuances.
When you file to open probate for an estate in your state, you will be provided with state-specific instructions and duties. For example, in California, personal representative duties are outlined in Form DE-147. This form lists duties and responsibilities relating to managing estate assets and taking inventory of estate property. If you are a personal representative of a state, make sure that you obtain and closely follow guidelines provided to you by your respective state and probate court.
Navigate probate with confidence
Carrying out the duties of a personal representative is no small feat. This guide provided an overview of the roles and responsibilities of a personal representative, which is an individual who is responsible for managing and closing an estate. Once they file a petition to open probate, they must provide an inventory and accounting of estate property (including their value which requires valuation), provide notice to creditors and heirs, file tax returns, and distribute assets. Further, making mistakes can be costly to the estate and may even result in legal action against the personal representative.
While it is possible to navigate the probate process alone, the duties of a personal representative are deserving of support. It can feel overwhelming or scary at times, and having a support system can make a night and day difference. Trust & Will’s Probate was designed to help anyone navigate the probate process with much more ease and confidence. At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help. Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.
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