Things To Consider When Choosing A Personal Representative.

When putting together your Will there are many "moving parts" to think about. Your assets, who you want to receive them, who gets what, and so forth. But who do you want to manage your estate after you pass? Oftentimes, the thought behind naming a Personal Representative (aka, "executor") is given short shrift. "Oh, I'll just have my daughter or son do that" is a common response I hear when I ask a client about the subject.

The choice of your estate's Personal Representative is something that should be given much serious thought. After all, that individual will be responsible for distributing your valuable assets after you pass. 

The job of Personal Representative is three-fold: 

1. Collect and protect estate assets, 
2. pay valid debts of the estate, and 
3. distribute any remainder to the beneficiaries named in the Will. 

Keep in mind that your choice of Personal Representative is that of nominee. Legally, they do not become the official Personal Representative until the probate court appoints them as such. A person who is at least 18 years of age and is someone the probate court has not disqualified may serve as a Personal Representative.

Serving as a Personal Representative is not a job to be taken lightly. Nor should you take lightly the choice of who to entrust with that responsibility. 

Some factors to think about when mulling over your possible choices for a Personal Representative:

• Is the person trustworthy? The Personal Representative is a fiduciary and they have a duty to always act in the best interests of your estate. Are you confident that they will do the right thing? Does the person have money or substance abuse issues that might be of concern?  

• Do you see any potential conflicts of interest? Minnesota law does not prevent a beneficiary from also serving as a Personal Representative. Nevertheless, will your Personal Representative be able to look past their personal interests and needs and focus on what's best for the estate? 

• Does the person have good interpersonal skills? Do they have the mettle to work with sometimes difficult people, such as creditors, debtors, bureaucrats, and impatient family members?
  

• Does the person possess good organizational skills and pay attention to detail? Can that person be able to keep track of assets, bills, accounts, and other day-to-day needs of the estate?
  

• Have you considered the practicalities facing the person serving? Do they live far away, have busy careers, family obligations, etc., that might create a hardship for them? Serving as Personal Representative takes a lot of time and diligence, even with "modest" estates.
  

• Will grief cloud their vision or their ability to do the job? Will it be too much for them to handle?
  

• Do you know one or two trustworthy persons (who also meet the above criteria) who could serve as alternates in the event your first choice cannot or will not serve?

Before choosing someone to serve it is always best to talk with that person first. Tell them what the job entails and what is expected of them--be candid. Give them time to think it over and let them discuss it with their family members. Don't be offended if the person declines serving--it's for the best if they don't have their heart in it.

When Should I Update My Will?

No matter how carefully your Will is crafted, it's impossible to predict future life events. Life events that could give cause for the need to revisit, and amend or re-draft your Will. 

Here is an outline of some events and life changes that may require having a qualified attorney review your existing Will with you.

• Change in marital status. Marriage, divorce, or having a domestic partner who would not be entitled to receive a share of your estate under laws of intestacy.
• New children/grandchildren, either by birth or through adoption.
• A child who has reached the legal age of majority, and no longer needs to have a custodian under UTMA.
• Moving to a new state.
• Death or change of relationship with a beneficiary. Perhaps one has become estranged, or has developed issues with substance abuse, gambling, etc.
• Death or change with one or more fiduciaries. A nominated Personal Representative may no longer be able or willing to serve, or is no longer someone you wish to have in such a capacity.
• Changes in status of guardians/conservators. Are these persons still appropriate for those roles?
• Changes in real property ownership. You bought a new home or vacation property, or sold the like.
• Changes in financial situation. Increase/decrease in earnings, retirement, public assistance, new health expenses, etc.
• Changes in asset valuation. Large estate assets, like real property, investments, valuables, can fluctuate, affecting how you may wish to distribute them after you die.
• Opening/closing a business venture.
• Changes in tax laws.
• Changes in state laws that may impact your estate planning wishes.
• More than 5 years have passed since your present Will was signed.
• Changes of heart/mind. You may simply wish to distribute your assets in ways that differ from your intentions when your existing Will was signed.

This list is by no means complete, and there may be other factors that could trigger the need to revisit your estate plan. If any such life event arises, or if you are just in doubt, it may be a good idea to review your Will with a qualified estate planning attorney.

Do I Need A New Will If I Move To Another State?

A Will that is properly executed in one state is generally valid in another state. This is based on the Full Faith and Credit clause of the U.S. Constitution. 

That said, there are state-specific rules for the drafting and execution of Wills, and the probate process, that can vary from state to state. While all 50 states have adopted the Uniform Probate Code, each state has the discretion to tweak the Code language as it sees fit. These variations may impact certain provisions in your Will, and affect how the probate process may apply to your Will.

Different states may require different elements for a Will to be valid. Many states require that the Will be typed or printed. Other states allow hand-written Wills ("holographic" Wills). There may be variations as to notarizing a Will, and who must witness the signing.

Estate and inheritance taxes may differ from state to state.

Property laws can vary from state to state, and some provisions in a Will executed in one state may not be valid in some other states. In the majority of states, common law applies, wherein a spouse that acquires property solely and completely owns that property. However, nine states apply community property law. In this case, all property acquired by either spouse is owned jointly by both spouses. If you have a Will executed in a common law state and you move to a community property state (or vice versa), there are issues that may arise after you die.

Moving is exciting, but it can be stressful and filled with lots of tasks. When relocating to a new state, don't take chances with your estate plan. Seek a qualified estate planning attorney in your new state and have them review your existing Will. In addition, it would also be prudent for you to have the new attorney look over your Health Care Directive and Power of Attorney.