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When asked if he or she will accept the nomination of being a testator's personal representative (PR), many people respond in the affirmative. They are pleased that their friend or family member thinks so highly of them to want them as their court recognized representative.
What the now nominated PR may not know is that there is a whole host of duties and responsibilities imposed by law upon the PR. Along with this responsibility is the need to recognize that under certain circumstances the PR can find him or herself personally liable for money damages. If the PR makes a mistake that costs the estate any money, the beneficiaries are going to be looking to the PR to make up the loss.
The first thing a nominated personal representative must do is be familiar with the decedent and whether or not he or she will need to be the person who carries out funeral and burial instructions of the decedent. If there is no one else with a greater priority (i.e.: spouse, siblings or children) then it is the PR who will need to make the decisions concerning the disposal of the decedent's body.
Once the funeral is over and the decedent is cremated or buried, the PR must now begin the process of administering the decedent's estate. It is very important that the PR identify, preserve and protect the assets of the estate for the benefit of the decedent's beneficiaries.
In many cases the PR will also be the decedent’s spouse or an adult child. The PR in this case will also, quite likely, be a beneficiary of the estate. The PR who is not only a fiduciary but also a beneficiary, must be extremely careful to avoid the appearance of any self dealing over other beneficiaries.
Even if the PR is not a spouse, child, or sibling, the person administering the decedent’s estate will always be in the capacity of a fiduciary. The legal definition of a “fiduciary” is “a person having a legal duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking.” A fiduciary is also “in the nature of a position of trust or holding confidence.” For example, a trustee has fiduciary obligations to the beneficiary of the trust and acts as a fiduciary in his management of the trust property. An attorney has a fiduciary relationship with his client. (Barron’s Law Dictionary,1984).
Like all other things legal, there will be a multitude of forms to file with the probate court. The first thing to decide is whether the estate needs to have either formal or informal probate. Most often, with smaller estates, the will of the decedent specifies that the PR use informal procedures. This allows the PR to administer the estate without court supervision.
If the PR knows there is a dispute among the family members or the estate is more complicated and there may be a will contest otherwise, then aformal probate of the estate will probably be the more prudent route to take. If the court orders supervised (formal) probate, the court will appoint a co-personal representative to oversee the process.
Once the PR has decided which type of probate to use, he or she must then file either an “Application For Informal Probate and/or Appointment of Personal Representative.” Or, a “Petition For Probate and/or Appointment of Personal Representative.” The PR chooses at this time whether the probate will be Testate,(with a will) or Intestate (without a will).
A filing fee ($150.00) must be paid to the probate court as well as submit an original of the death certificate along with the original will. The PR can also pay a fee to the probate court and they will put a notice in the appropriate legal newspapers giving all potential creditors notice that the decedent has passed away and this starts the four month statute of limitations time clock ticking. It is VERY important to make sure this is done.
Compare Personal Representative Duties to Claims Against The Estate
From here on out, proof of service forms must be filed with the court proving that other required forms have been served on interested persons. These forms, among others:
- Testimony of Interested Parties;
- Acceptance of Appointment (filed by the PR accepting his or her appointment);
- Supplemental Testimony, Interested Persons;
- Registers Statement;
- Notice of Appointment;
- Notice Regarding Attorney Fees, etc.
must be filed within a certain time frame to stay on track with the court and the timely administration of the estate. Failure to file all the proper forms will result in, first, a notice of non-compliance and later, if not corrected, the court may assign a special PR to take over administration of the estate. This can cause great additional cost to the estate and this can mean less for the beneficiaries. Again, they may look to the PR to make up the loss.
Once the applicant has been appointed the Personal Representative, the court will issue Letters of Authority and the PR can begin dealing with the estate. This can mean virtually anything the PR must do to wrap up the decedent’s final affairs, both personal and business. Anything from last illness costs to banking, real estate and final income tax returns. The good news is that a PR does not have to do all the above work him or herself. The PR may legally employ professionals such as a probate lawyer, accountants, financial planners, real estate professionals, appraisers, etc. to help process the estate. Further, the PR is legally entitled to reasonable compensation.
This compensation is commonly based on the PR’s hourly rate at his or her place of employment. In addition, the personal representative is allowed reimbursement for any out of pocket expenses the PR pays for in advance on behalf of the estate. The PR should bear in mind however, that the issue of compensation is always one that the beneficiaries can ask the court to review.