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Law Offices of Ronald W. Rutz
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June 12, 2004: Responsibilities of a Personal Representative

Q: I see that seminars are now being given on how hard it is to be a Personal Representative (executor of an estate). Gosh, should I be concerned about serving, or for that matter, even designating one in my Will?

A: Well, here we go again. Through the years, at one time or another, we have had seminars about "devastating death taxes," or living trusts to avoid probate, or nursing home insurance (I could go on). But like all these other seminars, if you do attend, take what is being said with a grain of salt. It is also helpful to identify the agenda of the presenter early when evaluating the worth of the information that is imparted.

Working in one form or another on over 100 estates each year, I have identified three traits that a Personal Representative should have: being a detail person; following through with a project; and knowing when to have an "expert" help (such as with taxes, legal questions, financial paperwork, etc.).

Before listing someone in a Will as a Personal Representative, I would agree that the person should be asked whether he or she would act. But it is not necessary to share estate documents or have the proposed Personal Representative "study" the documents. In settling the estate only a few key paragraphs are significant and usually can be read and understood in a few minutes. The vast majority of any Will contains information that covers points that lawyers and CPAs worry about but are seldom pertinent in settling an estate. These points are simply there if needed. And an attorney’s or CPA’s expertise is the easiest and most efficient way to really know whether the technicalities of the Will are being honored. No offense intended, but most lay people would not have a clue whether technical problems are being addressed, even after studying a document. Nor should a lay person expect to do so.

The best thing that a person can do for his or her Personal Representative is to make a comprehensive listing of assets and then keep the information up- to-date. Also, it is helpful to keep important papers together and to be sure that assets are titled to coordinate with the overall estate plan. In other words, make things as easy as possible for whomever is acting by having everything all laid out. Remember, if a Personal Representative starts acting, but realizes that he or she is in "over his or her head," that person can always resign. So set up matters to make it as easy as possible for that person to follow through.

But the bottom line is to pick an individual who is a detail person, one who will either follow through and see that a matter is completed or who will turn tasks over to those who have the experience and talents to handle specialized areas, such as lawyers, CPAs, etc. A Personal Representative does not have to be a jack of all trades. In fact, it is probably unwise to select someone who has the compulsion to do it all by himself or herself.

And what about liability? As long as a person acts in a reasonable manner, it is remote. I have never heard of a Personal Representative being held liable during all my years of practice. I am sure that there have been legal problems, but these are very uncommon.

So do attend these kinds of seminars (including the ones I give) with the idea that you will be entertained and exposed to ideas. But be careful if the event seems to have the atmosphere of a revival meeting or the presenter is revealing some hidden secret that those "in control" do not want the public to know about. My rule of thumb is that if a person can pick up one or two new points of information, then the seminar was worth it, even if the presented "hyped" up the "problem" just to get you there.

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