Personal Representative in Massachusetts
Understanding the Role of a Personal Representative in MassachusettsIn Massachusetts, when certain assets must pass through the probate process, the court appoints a Personal Representative (formerly referred to as an executor) to oversee the estate. If you're in the process of creating a will, it's essential to designate this individual and even consider naming an alternate. Let's delve into the significance of a Personal Representative and how to make this crucial decision.
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Personal Representative vs. Executor
The term "personal representative" is not as familiar to most people as the word "executor." The truth is they mean exactly the same thing. In earlier law, a male person representing an estate was called an executor, and a female was called an executrix. The term executor also did not fully capture the role, which is to represent the estate in settling debts and asset distribution relating to the estate. So Massachusetts changed the law to include the more gender-neutral and descriptive term Personal Representative.
The Role of a Personal Representative
A Personal Representative, once appointed by the Probate Court, assumes the responsibility of administering your estate upon your passing. This critical role, often known as an executor, plays a pivotal role in the finalization of your estate affairs and the interim management of your assets.
Until a Personal Representative is officially appointed, no one possesses the legal authority to manage your estate's business or make decisions on behalf of your heirs. Even if someone held a power of attorney during your lifetime, this authority ceases upon your demise. Consequently, no one can oversee activities related to bank accounts, real property, bills, and other matters until the appointment of the Personal Representative.
Once appointed, the Personal Representative takes on various tasks, such as filing necessary paperwork with the court, handling required tax returns, creating an inventory of probate assets, and obtaining court approval for asset distribution as per the terms outlined in your will.
Until a Personal Representative is officially appointed, no one possesses the legal authority to manage your estate's business or make decisions on behalf of your heirs. Even if someone held a power of attorney during your lifetime, this authority ceases upon your demise. Consequently, no one can oversee activities related to bank accounts, real property, bills, and other matters until the appointment of the Personal Representative.
Once appointed, the Personal Representative takes on various tasks, such as filing necessary paperwork with the court, handling required tax returns, creating an inventory of probate assets, and obtaining court approval for asset distribution as per the terms outlined in your will.
Selecting the Right Personal Representative
Your chosen Personal Representative doesn't need to tackle all responsibilities single-handedly. Often, individuals in this role hire legal professionals, accountants, and other experts to assist with specific aspects of estate administration. Therefore, you needn't prioritize finding a Personal Representative with legal or financial expertise.
What you should consider is someone who embodies reliability, organization, familiarity with your family dynamics and your wishes, and the capability to manage the process when the time comes. Read more about considerations when selecting a Personal Representative.
What you should consider is someone who embodies reliability, organization, familiarity with your family dynamics and your wishes, and the capability to manage the process when the time comes. Read more about considerations when selecting a Personal Representative.
Supporting Your Personal Representative
You can significantly ease the probate process for your Personal Representative by taking several proactive measures:
- Communication: While you don't need permission to name someone as your Personal Representative, it's considerate to discuss this decision with them beforehand.
- Sharing Your Will: Providing your designated representative with a copy of your will in advance allows them to prepare for their responsibilities. Ensure they know the location of the original will to expedite the process.
- Asset and Account List: Maintain a comprehensive list of your assets and accounts alongside your estate planning documents. This simple step can save considerable time and effort for your executor and heirs.
- Account for Timing: Keep in mind that the appointment process for a Personal Representative can take one to two months. Plan accordingly for any immediate necessities, such as funeral arrangements, by setting up a designated bank account with your representative's name.
Choosing a Representative When Options Are Limited
In some scenarios, you may face difficulty selecting a Personal Representative. Trusted peers might be aging or unwell, and you might hesitate to burden younger relatives. Family conflicts can also complicate the selection process.
Even when faced with these challenges, you can still designate a representative. Consider selecting a trusted professional, such as your family lawyer or accountant. In such cases, it's advisable to name an alternate representative—either another individual or a designee of the professional's firm. This ensures someone is readily available to serve, and your family won't encounter setbacks if the primary choice retires or passes away.
Even when faced with these challenges, you can still designate a representative. Consider selecting a trusted professional, such as your family lawyer or accountant. In such cases, it's advisable to name an alternate representative—either another individual or a designee of the professional's firm. This ensures someone is readily available to serve, and your family won't encounter setbacks if the primary choice retires or passes away.
Modifying Your Personal Representative
Just like any aspect of your will, you retain the flexibility to make changes to your appointed Personal Representative at any time, as long as you are of sound mind and adhere to Massachusetts legal requirements for proper execution. Simple changes, such as replacing the executor, can often be accomplished with a codicil to the will—a document that should be stored with the original will.
Always ensure you locate your previous original will and either destroy it or clearly mark it as replaced whenever you make changes to your will. This practice prevents the submission of outdated wills to the probate court.
Always ensure you locate your previous original will and either destroy it or clearly mark it as replaced whenever you make changes to your will. This practice prevents the submission of outdated wills to the probate court.
Meet Our Estate Planning Lawyers
Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna wrote a book on estate planning: The Road to Peace of Mind: What You Need to Know About Estate Planning. Jenna has helped many individuals and families with planning to protect their legacies and loved ones, and planning for the future and succession of their businesses.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and earned her LLM in estate planning from Western New England Scool of Law in 2016. She has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped many clients with planning for their legacies and their future, and navigating the probate process in Massachusetts after the death of a loved one.
How We Can Help
Choosing the right Personal Representative is an integral part of your estate planning process. With careful consideration and preparation, you can ensure that your chosen representative is well-equipped to manage your affairs and honor your wishes, providing you with peace of mind for the future. When you are ready to document this in a will, We are ready to help. You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.
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