5 FACTORS TO CONSIDER WHEN NAMING A PERSONAL REPRESENTATIVE
So you’ve decided to have your will and estate plan drafted. This process involves identifying what assets you own, where they should go and how they should be given to the recipient. Another important step in estate planning is choosing an individual to oversee the entire process once you’re gone. This person was once called an executor, but under current Massachusetts law the term is "personal representative."
The personal representative plays a critical role in the management and distribution of your assets after your passing. To have control over the individual chosen for this responsibility, you must name the person in your will. If you do not, the court will select a representative for you. This will most likely be your spouse or a close relative, but not necessarily the person in your life who is best suited to the task.
Dealing with funeral arrangements and legal matters can be an emotional and challenging process, which is why choosing a personal representative is a critical decision. Below, we’ve listed five factors to consider when naming this individual:
When handling finances and personal affairs, you would like your personal representative to be someone close to you and honest, whom you can trust. This is why many people opt for relatives, such as their child or spouse. Close family members may have a deeper understanding of your intentions and a personal desire to carry out your wishes. However, to avoid internal family conflict, it is also common for people to choose a trusted friend who is not also a beneficiary of your estate, and has no vested interest other than getting through the process and ensuring that everything is distributed to the people who are supposed to receive it.
2. Responsibility and Availability
Aside from trust, your representative should understand the importance and length of time required for successful completion of their role. This person is in charge of submitting your will to the court and handling your finances after your passing. Your beneficiaries will look to the executor for distribution of your assets, as well as notifying everyone, including creditors, of your passing. Probate can take months and sometimes years. You may have family members who you trust completely, but who are not the right choice for a task that will require their consistent attention for a long period of time, either because of their personalities, or because they have significant other demands on their time.
As mentioned above, the appointee is left with many tasks. After the probate process, where the court deems your will is a legal document, they have a list of jobs to complete. This includes gathering and identifying all of your assets, taking inventory of your estate, terminating your credit cards, filing your final tax returns, paying off funeral costs and bills using your estate funds, and so on. The individual must be well-organized and able to keep up with valuable information of your life, while still managing their own.
Depending on your residency, some states legally require your appointee to live in the same state, unless they’re a relative. Be sure to check your state’s law before naming a personal representative, in case it imposes preconditions. Whether required by law or not, you should consider the logistics involved and the extent to which someone located far away will be in the best position to handle them. That said, your priority should be picking the right person, and if the right person happens to live out of state, know that he or she can also hire legal counsel or other help to handle matters on the ground.
5. Age & Wellbeing
Last, but not least, you should consider the age and health of the prospective personal representative. Many people, if they make their estate plans when they are younger, include parents as personal representatives or guardians of minor children, but it may be a good idea to re-think this, especially as you (and your parents) get older. Because they are expected to carry out your wishes and legal affairs long after your passing, it’s wise to choose a personal representative who is younger and in good health.
Be sure to get approval from the person you choose as your personal representative before naming them in your will. It’s vital that the individual understands their responsibility and can commit to the role. It is also recommended to appoint a successor, or even more than one successor, in case your primary choice is unable to meet demands.
Another simple thing that is often overlooked is that your personal representative should be told where to find your will and other estate planning documents. Too often we have seen families spend unnecessary time and energy just trying to locate these basic documents. Wherever you decide to keep them, consider sending a set of instructions to your personal representative so that he or she can immediately get to the business of getting your estate finalized and distributed.
For more information regarding this individual’s responsibilities, or assistance in choosing one, our knowledgeable lawyers at SLNLaw are here to help.
slnlaw is a law firm in Sharon Massachusetts providing business, employment law and estate planning services to individuals and small businesses