Learn About Personal Representatives in Probate
A personal representative is the individual you place in charge of settling your estate after your death, also commonly referred to as an executor. You would name this person in your last will and testament, but the court will appoints someone to handle your final affairs if you fail to leave a will. The personal representative is typically called an administrator when there's no will, but the job is much the same.
The duties of a personal representative can be wide-ranging, from settling the decedent's final bills and taxes to gathering and distributing assets to beneficiaries. Not everyone is up to the task. The personal executor has a fiduciary duty to act in the best interest of the decedent.
Personal Representatives in Testate Estates
A "testate" estate is one that includes a valid last will and testament. A will should—and usually does—name the individual the decedent would like to serve as their personal representative or executor. Courts almost invariably honor the decedent's wishes if the person named in the will is still alive and is otherwise able and willing to serve, provided they're legally allowed to do so.
Some state courts require that a personal representative who's been named in a will must petition the court for removal so someone else can take over. This might be the case if the individual is appointed, then feels unable to handle the time-consuming challenge of settling the estate.
The person named as personal representative in the will wouldn't be legally permitted to serve if they don't meet all the criteria for a personal executor under that state's law. They might have been convicted of a crime, or they might have suffered some mental decline that would prevent them from meeting their duties. Maybe they're not yet legally of age. All these circumstances would prohibit them from serving.
Minors can't serve in this capacity, and convicted felons typically can't serve as personal representatives, either. Neither can banks or trust companies that don't have fiduciary powers in the state where probate is taking place.
And some states have more specific rules. For example, a person can't serve as a personal representative in Florida unless they're related to the decedent by blood or marriage, or, if not, they're a Florida resident.
When Beneficiaries Object to a Personal Representative
Beneficiaries or heirs have a right to contest a will and object to the personal representative the decedent named in the will. This usually results in a full-blown trial where the beneficiaries and others can present evidence and testimony to convince the judge to overturn the provisions of the will or to honor them.
A judge will make the ultimate decision as to who will serve when a will is contested because of who has been named as personal representative—the personal representative named in the will or perhaps another party nominated by the beneficiaries. It might even be someone else entirely who the judge selects. But courts usually prefer to honor the decedent's wishes whenever possible.
These rules and laws can vary from state to state. What holds true in Florida might not be the case in New Hampshire. Check with a local attorney if you're planning your will and you're unsure about the person you want to name as personal representative.
Personal Representatives in Intestate Estates
An intestate estate is one for which the decedent didn't leave a last will and testament. The intestacy laws of the state where they lived at the time of death take over in this case and determine who can serve as personal representative. The court and state law will determine who has priority, and the position is often called the "administrator" of the estate in this case.
The surviving spouse typically has first priority, but a surviving child or children can be appointed if the spouse is unwilling or unable to take on the responsibility. The judge will work down a list of kin until someone appropriate can be appointed, maybe a surviving parent, sibling, niece or nephew, or someone who steps forward to request the job.
Typically, if the decedent's heirs-at-law—those who are entitled to inherit without a will—can agree on who should serve, the probate judge will appoint that person. But the probate judge will make the decision based on state rules and statutes if the heirs-at-law don't agree or if the heirs-at-law all waive their rights to serve.