When creating a last will and testament (commonly known as a will), one of your most important considerations is who to choose to serve as the Personal Representative (also called an “executor” in some states and commonly abbreviated as “PR” in Arizona) of your estate.
The role of the Personal Representative (“PR”) is to personally represent the estate in executing the instructions you provide in your will. You may give your chosen PR some discretionary powers in determining how your assets (money and property) are to be distributed, but they have limited latitude to make independent decisions. Any deviation from their specified powers could cause a conflict in your estate that leads to legal consequences.
To avoid any unnecessary complications in the settling of your affairs, take care to avoid ambiguous or unclear language in your will. If there are any doubts about your last wishes, the Personal Representative and beneficiaries may wish to consult with an estate planning lawyer to discuss next steps.
Upon the death of the testator —the person who made the will—probate will be opened if the testator died owning accounts or property in their sole name and without a properly completed beneficiary designation form.
Probate is the court-supervised process in which the testator’s will is validated and administered. The person named as Personal Representative in the will initiates and carries out the probate process. The probate process can vary slightly from state to state, but generally unfolds in the following manner:
These steps imply that the decedent has, in fact, left a will. Dying without a will—known as dying intestate —entails much greater court involvement. The court appoints a Personal Representative and may be required to identify heirs and determines who gets what. Dying intestate can even empower the state to choose the guardian of your minor children.
It may not be possible to avoid probate completely (e.g., if a guardian appointment is required for a minor child; if the Personal Representative must represent the decedent in a pending or new lawsuit; or if the decedent died with assets solely in their name and without a designated beneficiary). Probate duration and costs, however, can be reduced through careful estate planning.
The Personal Representative named in a will is responsible for carrying out the testator’s final wishes. The PR is a liaison between the probate estate and the probate court, as well as between the probate estate and the beneficiaries. Their duties include locating and valuing assets of the estate, paying debts, and distributing assets to beneficiaries in accordance with instructions in the will.
The Personal Representative owes a fiduciary duty to the estate and its beneficiaries that compels them to act in the best interests of both. Because a Personal Representative may also be a beneficiary of the estate, their actions may be scrutinized to ensure they are acting fairly and legally.
The Personal Representative must, to the best of their ability, carry out the directions expressly stated in the testator’s will. They cannot make changes to the will, but there are cases where the PR can use discretion when settling an estate. The testator might explicitly give discretion to the PR, or the need to exercise discretion may arise due to ambiguity in the will, as in the following examples:
If the will is unclear, the Personal Representative should seek clarification from the court to assist with interpretation. Anyone with a stake in the estate may also raise a legal challenge against the PR (such as asking for the PR to be removed, or even bringing litigation claims against the PR).
When a gray area exists within the provisions of the will and the Personal Representative acts in good faith and within the scope of their power and duties, the court may uphold their actions. A petition to remove a Personal Representative or a lawsuit against the PR for breach of fiduciary duty will only succeed if there is evidence of misconduct, such as the PR explicitly going against the will or estate’s interests, acting in their own best interest, or withholding an intended gift from a beneficiary.
While the Personal Representative and beneficiaries cannot rewrite a testator’s will after the testator has died, the beneficiaries may be able to mutually agree to modify what they receive from the estate.
Making changes to distributions can be done using a document known as a nonjudicial settlement agreement . A nonjudicial settlement agreement is a contract that may be used whenever the beneficiaries agree that asset distribution should be different than what the will stipulates, including in these situations:
A nonjudicial settlement agreement can be a way to resolve a loved one’s legal challenge to the will. The court should respect this agreement if it meets applicable legal requirements. However, before signing an agreement to change the provisions of the will, the beneficiaries should consult with a probate attorney so they understand whether this type of agreement is legally recognized in their jurisdiction, along with what the implications and potential consequences would be.
In addition to assisting with a nonjudicial settlement agreement, there are many issues related to probate that might require attorney assistance.
Personal Representatives, beneficiaries, and anyone who feels they have been treated unfairly in a will may need to consult with a probate attorney about interpreting and administering the will, determining their rights and duties under state probate law, and potentially challenging the will in court. In addition, when creating your will, it is crucial that you set out your intentions in a way that minimizes the potential for conflict among everyone involved.
Get legal help with Gunderson Law Group on a will or probate issue: contact us and schedule a consultation.
By Adam Gunderson | April 10th, 2024 | Estate Planning | Comments Off on Demystifying Probate & the Role Of The Personal Representative
