28 October 2020

Is The Personal Representative Required To Serve?

The short answer, "No."

Being a voluntary fiduciary, the person nominated has the right to refuse to serve, and if appointed to serve, can resign from service. That is their choice and their right. People's lives change and serving as a personal representation can create hardships. It's time-consuming and a lot of work.

Sometimes, a nominated personal representative will face strong opposition from other heirs of the estate. The stress created by a death in the family sometimes brings out the worst in people. It might be in the best interests of family harmony (and avoiding the drama) for the nominee to step aside.

A nominee who has not yet been appointed by the probate court can simply refuse to accept an appointment. Since qualifying for appointment requires the nominee to file with the probate court, the person can decline to serve just by not filing.

However, if the person has been appointed by the court as personal representative and that person wishes to resign, there are some formalities under Minnesota law in what is called voluntary termination of appointment. As the appointed personal representative, the person must file a written statement of resignation with the registrar after having given at least 15 days written notice to the known interested persons of the estate. If no one applies or petitions for appointment as a successor within the time indicated in the notice, the filed statement of resignation is ineffective as termination unless and until a successor has been appointed and the estate assets have been delivered to the successor. The personal representative is not off the hook until another person is appointed.

If the personal representative declines to serve or resigns, and the Will does not nominate a successor, the court will appoint a personal representative based on priority set forth under Minnesota law. Generally, the surviving spouse or children have the highest priority.

This is why it is so important to nominate a second and third successor personal representative in your Will. It is also a good idea to review your Will from time to time, and to confirm that your nominated personal representatives still wish to serve when the time comes. If any of them express doubts, you should consider executing a codicil (amendment) to nominate different persons. A qualified estate planning attorney can help you review your Will.