Probate

In our last post I discussed the type of person who would make a good executor or executrix. Sometimes, however, the Court has to appoint a person to be a decedent’s Personal Representative – if there is no Will, or if the Will was improperly prepared, or if it is lost or even if no one knows that one exists. When this happens the decedent is referred to as dying “intestate.” All that phrase means is that the decedent did not have a valid Will at the time of death.

There is not always the need to appoint a Personal Representative to probate the decedent’s estate, even if the decedent had no Will at the time of death. Whether a Personal Representative is needed depends on the kinds of assets that exist since certain assets do not need to be probated. For example, a house that is held by a husband and a wife as tenants by the entireties goes directly to the survivor without probate. Similarly, a life insurance policy leaving the proceeds to a named, living beneficiary goes directly to that person, without the Register of Wills office getting involved in the transaction. We will discuss the issues surrounding probate and non-probate assets more in later posts.

However, if at death, there is no valid Will but there are assets that do not go directly to a named person, or if there is a Will but the named Personal Representative is not willing or able to serve, then in order to distribute the decedent’s assets to the family, someone needs to be appointed as the decedent’s Personal Representative. Similarly, if there is a need to bring a lawsuit on behalf of the decedent, someone has to be appointed to serve as the Personal Representative if there is no valid Will. This person, appointed by the Court is referred to as the “administrator” or “administratrix.”
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When you meet with an attorney to draft your estate planning documents, the attorney will ask you for the names of people to serve in various roles. Among these is the role of “Personal Representative,” who is called an “Executor” if a male and an “Executrix” if a female. The Personal Representative gathers the decedent’s assets, pays valid debts, pays any Estate or Inheritancetaxes that may be due and distributes the remaining assets to the heirs as directed by the Will.

While many people believe that deciding who gets what items and who should inherit your money is all that needs to be decided in preparing your Last Will and Testament, the choice of your Personal Representative is also quite important, since until the Personal Representative properly completes the job, your heirs won’t get their money and problems may arise with the taxing authorities and other entities. So choose your personal representative wisely!

What does the Personal Representative do?

The Personal Representative’s job starts right after death, when he or she goes to the Register of Wills office in the county of your death to “probate” your Will. Tell your Personal Representative knows where your original will is located so there is no delay in getting it filed with the Register of Wills. Although the whole concept of probating a Will has gotten a lot of bad press in recent years, the process, at least in Pennsylvania, is relatively painless and not very expensive. The Personal Representative usually has to appear in person at the Register of Wills office to formally start the process.

At the Register of Wills, the Personal Representative will take an oath of office and then be given (or mailed within a few days) documents called “Shorts,” which is an abbreviation for “Short Certificate.” These are just pieces of paper to be given to each financial institution or holder of assets in order to get the assets from that place into an “Estate Account.” The Personal Representative will use the Estate Account to first pay off the decedent’s debts, and, after the debts are paid, distribute the balance to the heirs in accordance with the Will.

Who should I choose to be my Personal Representative?

When deciding who should be your Personal Representative, choose someone who is extremely organized. Our firm has represented clients with many bank and brokerage accounts (in some cases 20 or more), who own one or more houses with mortgage loans, have a number of credit cards and have named several people to get various percentages of their estate. The Personal Representative has to write to each institution requesting the date of death value of the account, and then keep track of the documents received from the various institutions. The Personal Representative also has to contact each creditor, verify the debts are owed, and ultimately deal with the beneficiaries. The amount of work involved can be tedious, burdensome and frankly, overwhelming.

Articles Posted in Probate

Who Becomes the Personal Representative if There is No Will

Choosing the Person to Handle Your Estate: What Does the Personal Representative Do and How Do I Choose the Right One?