Have you been named as a Personal Representative for someone? Or are you working on your will and need to nominate a Personal Representative? Wondering what the heck a Personal Representative is and why you need one? I totally understand!
A Personal Representative is someone who has been nominated by someone to act as a fiduciary of the nominating party’s estate. Let’s break that down a little more.
A fiduciary is someone who has a legal duty to someone else. In this case, a Personal Representative has a duty to the estate, the devisees (the people who will receive from the estate under a will), the heirs (the people who will receive from the estate if the person who died left no will), and other interested persons like creditors.
A Personal Representative is required to act in a way that is impartial towards all parties of the estate, to administer the estate with care and prudence, to put the interests of the estate first before their own individual interest, and to treat every part the same.
Within the probate process itself, the Personal Representative handles tasks like creating and providing an inventory or accounting of everything in the estate, keeping accurate records, managing assets, distributing assets, and paying creditors.
While you nominate a Personal Representative in your will, that person is not actually placed in the role of Personal Representative until appointed by the Court. This is because sometimes the person nominated isn’t willing or able to be the Personal Representative at the time their loved one died. There could also be another person who feels they should be appointed as Personal Representative either because they have some sort of statutory right (like a spouse) or because they just feel they would do a better job. In this situation, the probate court would hear from each person and make a determination.
If there’s no one contesting the nomination and the person nominated is willing and able to be the Personal Representative, the process of getting that formal appointment is straightforward.
Because there can be a fair amount of work the Personal Representative is required to do, they can be paid for providing their services. The pay is required to be reasonable. Some Personal Representatives choose not to be paid, however, it’s recommended every Personal Representative keep track of his or her time spent on the administration of the estate even if they aren’t being paid.
It’s important to note that the role of a Personal Representative is a serious one and because of the fiduciary nature, the Personal Representative could be personally liable for actions they take in that role. Before you select someone to nominate as the Personal Representative in your will or before you agree to take on the appointment, it’s important to understand the role, responsibilities, and potential liability.
This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.
Lauren Lester is an affordable family law, estate planning, and probate lawyer licensed in Colorado.