If you are at the point of getting (or perhaps revising) your Will, there are some choices to consider while your attorney is working with you to craft your estate plan.
One important choice is who to
nominate to serve as your personal representative ("executor"). The personal
representative is a fiduciary, and as such, owes a duty to always act in the best
interests of the estate, placing the estate's interests above their own and above the
interests of others. Serving as personal representative is an important, and
sometimes thankless job that can span several months. It's not a
job for everyone.
Questions to consider:
- Is the person trustworthy and reliable? Do you believe they will do the right thing and put the best interests of the estate first?
- There are lots of important tasks in administering an estate--does the person have the necessary organizational and communication skills? Can they pay close attention to details?
- Is the person willing to take on the responsibility? (Be sure to ask first, don't "surprise" them by naming.)
- Would serving as personal representative
become a burden for the person? Will they be able to devote the time and effort
necessary to see it through? If the person lives far away are they willing to travel?
- Will the person be able to effectively handle conflicts that may arise between interested parties? Can they maintain their fiduciary duties in the face of pressure from other heirs?
- Have you considered naming successors to act as personal representative in the event your first nominated personal representative is unable or unavailable to serve or chooses not to? And/or naming an additional personal representative to act concurrently?
The general qualification requirements under the law for a personal representative are fairly straightforward: The person must be least 18 years of age and not found "unsuitable" for some reason by a court.
The probate court formally decides who will serve as the personal representative of an estate after the Will has been submitted to the court. This is the distinction between "nominated" and "appointed." You can nominate a person, but they do not officially become the personal representative until they are appointed by the probate court (by issuing Letters Testamentary).
Who can be personal representative? Minnesota law provides a list of who can serve as a personal representative, in order of priority. The priority is the same whether probate proceedings are formal or informal. If not disqualified by being under age 18 or having been found unsuitable by the court, the priority is in the following order:
- The person named in a Will as the one that should serve as the personal representative.
- The surviving spouse, if the spouse is entitled to receive property according to the Will.
- Other people who are entitled to receive property according to the Will.
- The surviving spouse, if the spouse is not entitled to receive property according to the Will, or there is not a Will.
- Other heirs, if there is not a Will.
- At least 45 days after the death of the decedent, any creditor of the decedent.
- At least 90 days after the death of the decedent, the decedent's conservator (if the court had appointed a conservator during the decedent's life).
Persons named in 2-5 in the above list may have the right to nominate another qualified person to serve in their place.
However, the court has ultimate authority for deciding who to appoint as the personal representative and for ruling on objections, regardless of who has priority.
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Your personal representative will be responsible for a multitude of tasks in administering your estate. A qualified estate planning attorney can discuss what that may entail and answer your questions.
For further reading, I have prepared an article outlining many of the typical duties expected of a personal representative.