Personal Representative in Massachusetts
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If any of your assets need to pass through the probate process, the court will have to approve a personal representative (formerly known as an executor) of your estate. If you are making a will, you will want to identify who that person should be. Ideally, you will also select an alternate.
What is a Personal Representative?A personal representative is the person appointed by the Probate Court to administer your estate after you pass. This role is often known as an executor. This appointment is critical to finalizing your estate and managing your assets in the meantime.
Until a personal representative is appointed, nobody has legal authority to conduct business on behalf of your estate or your heirs. Even if someone had a power of attorney during your lifetime, that power ends at your death. This means that there will not be anyone with the ability to manage bank accounts, real property, bills, and other matters until the personal representative is appointed. Once appointed, this person will be responsible for filing the required paperwork with the court, arranging for required tax returns, creating an inventory of probate assets, and getting the court's approval for distribution according to the terms of your will. |
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How to Choose a Personal Representative
Your personal representative does not need to do everything by themselves. Often people in this role will hire lawyers to help with the legal filings, accountants to help with the tax filings, and other professionals as needed. So you don't need to worry about identifying a personal representative who is an attorney or any other profession.
What you do want to think about is someone who you believe is reliable, organized, familiar with your family and your wishes, and in a position to manage this process when the time comes.
Reliability and organization: though they won't have to do everything themselves, your representative should be someone who can keep track of key deadlines and documents and make sure everything is moving ahead on schedule.
Familiarity with your family and wishes: this is not a requirement, but it helps. Your representative will need to communicate with your family about the terms of your will, so some relationship is good. There are also decisions your representative will need to make, such as selling an asset to distribute proceeds to the heirs you name. Usually family members agree about personal possessions, but if there is disagreement your representative will need to decide. All of these things are usually easier with someone who has a relationship with, and ideally the trust of, your heirs.
Ability to serve: age and well-being are important considerations. As we are aging, so also are our friends and relatives. You may have named a sibling as executor previously, but if you and your siblings are now in your 80's you might consider a younger relative or friend.
This is also why it is important to name an alternate representative- some people even name several- to ensure that someone is able to step in to this role quickly and easily.
What you do want to think about is someone who you believe is reliable, organized, familiar with your family and your wishes, and in a position to manage this process when the time comes.
Reliability and organization: though they won't have to do everything themselves, your representative should be someone who can keep track of key deadlines and documents and make sure everything is moving ahead on schedule.
Familiarity with your family and wishes: this is not a requirement, but it helps. Your representative will need to communicate with your family about the terms of your will, so some relationship is good. There are also decisions your representative will need to make, such as selling an asset to distribute proceeds to the heirs you name. Usually family members agree about personal possessions, but if there is disagreement your representative will need to decide. All of these things are usually easier with someone who has a relationship with, and ideally the trust of, your heirs.
Ability to serve: age and well-being are important considerations. As we are aging, so also are our friends and relatives. You may have named a sibling as executor previously, but if you and your siblings are now in your 80's you might consider a younger relative or friend.
This is also why it is important to name an alternate representative- some people even name several- to ensure that someone is able to step in to this role quickly and easily.
How to Help Your Personal Representative
There is a lot you can do to make the probate process easier and faster for your representative.
You don't need someone's permission to list them as personal representative, but it is good practice to discuss it with them beforehand.
Sharing a copy of your will in advance will allow them to prepare for the role. Letting them know where you are storing the original will helps expedite the process.
Another easy step that can save your executor and heirs a lot of time and trouble is maintaining a list of your assets and accounts. You can keep this list with your will and other estate planning documents.
Finally, remember that it can take a month or two to have someone appointed. If there are things that need to be done in that time period, you should make sure to account for that. For example, if you have not made advance funeral arrangements you can set up a bank account with your representative named on it so that there are immediate funds available for that purpose. You can add funds to that account for any other "must-pay" items that might become due in the first few months.
You don't need someone's permission to list them as personal representative, but it is good practice to discuss it with them beforehand.
Sharing a copy of your will in advance will allow them to prepare for the role. Letting them know where you are storing the original will helps expedite the process.
Another easy step that can save your executor and heirs a lot of time and trouble is maintaining a list of your assets and accounts. You can keep this list with your will and other estate planning documents.
Finally, remember that it can take a month or two to have someone appointed. If there are things that need to be done in that time period, you should make sure to account for that. For example, if you have not made advance funeral arrangements you can set up a bank account with your representative named on it so that there are immediate funds available for that purpose. You can add funds to that account for any other "must-pay" items that might become due in the first few months.
What if You Can't Think of a Personal Representative?
You are not alone. Many people find themselves at a stage in life where their trusted peers are aging or ill, and for any number of reasons they do not want to put the responsibility on younger relatives. There are also cases where the people competent to serve as executor/representative are not suitable, or where existing family conflict makes it unwise to select any family member.
You can still name a representative. It can be your family lawyer, accountant, or really anyone. If you choose to name a trusted professional, consider adding as an alternate either another individual or a designee of the firm they work for. This way you will know somebody will be able to serve, and your family won't have to start from scratch if the first person retires or passes away.
You can still name a representative. It can be your family lawyer, accountant, or really anyone. If you choose to name a trusted professional, consider adding as an alternate either another individual or a designee of the firm they work for. This way you will know somebody will be able to serve, and your family won't have to start from scratch if the first person retires or passes away.
Changing Your Mind About a Personal Representative
Just like anything else in your will, you can change your mind about this any time, as long as you are of sound mind and the new document is executed properly under Massachusetts law. Something as simple as changing the executor can usually be done with a simple codicil to the will. This codicil should always be kept with the original will.
Any time you make changes to your will itself, you should be sure to locate your old original will and either destroy it or mark it up so that it is clear it has been replaced by a new document. This will ensure that nobody submits the outdated will to the probate court.
Any time you make changes to your will itself, you should be sure to locate your old original will and either destroy it or mark it up so that it is clear it has been replaced by a new document. This will ensure that nobody submits the outdated will to the probate court.
How Our Estate Planning Lawyers Can Help
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We are ready to help. We understand this can be a difficult issue to tackle, so we have designed our process to make it as easy as possible for you to get the plan in place that protects you and your family and accomplishes your goals. You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.
