The following people cannot be the personal representative:
a minor,
a person subject to a conservatorship or otherwise incapable of performing the duties of personal representative,
a surviving business partner of the decedent, if an interested person objects (unless the Will names the partner as executor), or
a non-resident of the U.S. (unless the Will names the non-resident as executor).
12. Personal Representative question: Does the Court supervise the personal representative?
Not usually. But, in some situations the Court requires the personal representative to ask the Court’s permission to sell real estate or business interests owned by the estate. The personal representative cannot do any of the following things without the Court’s permission:
pay fees to himself or herself,
pay fees to his or her attorney,
make a preliminary distribution of property to beneficiaries (with a few exceptions), or
The court may require the personal representative get a surety bond (an insurance policy that protects the estate beneficiaries in the event of the personal representative's wrongful use of the estate's property), even if the Will waives this requirement.
Locate the decedent's assets and manage them during the probate process. This could take up to a year or longer and may involve deciding whether to sell real estate or securities owned by the decedent;
receive payments due to the estate, including interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits)
set up an estate checking account to hold money that is owed to the decedent -- for example, paychecks or stock dividends;
Figure out who is going to get what and how much under the Will. If there is no Will, the administrator will have to look at state law (Probate code Sections 6400 – 6414, called "intestate succession" statutes) to find out who the decedent's heirs are and determine each heir's share of the estate;
value or appraise the estate's assets;
give official legal notice to creditors and potential creditors of the probate proceeding and the deadlines for creditors to file claims, according to state law;
investigate the validity of all claims against the estate;
pay funeral bills, outstanding debts, and valid claims;
use estate funds to pay continuing expenses -- for example, mortgage payments, utility bills and homeowner's insurance premiums;
handle day-to-day details, such as disconnecting utilities, ending leases and credit cards, and notifying banks and government agencies -- such as Social Security, the post office; (see getting organized)
file tax returns and pay income and estate taxes – including a final state and federal income tax return covering the period from the beginning of the tax year to the date of death;
after getting the court's permission, distribute the decedent's property to the people or organizations named in the Will, or to the decedent's heirs if there is no Will; and
file receipts for distribution and wrap up any closing details for the estate.
No. If you choose not to serve, the Court will probably appoint the alternate executor to be the personal representative.
If there is no alternate executor, or if that person doesn't’t want to serve, the Court will appoint someone to serve. The Court usually appoints a capable family member or an independent professional fiduciary. If you decide to be the personal representative, you can resign at any time. But, you may have to give an "accounting" to the Court for the time you served.
Yes. In addition to your out-of-pocket expenses to manage and settle the estate, personal representatives usually earn a statutory fee of 2% - 4%of the probate estate. The percentage decreases as the size of the estate increases.
The Court must approve all fees and expenses. And, in extraordinary circumstances, the Court may allow other fees.
Fees are taxable as ordinary income and must be reported on your personal income tax return. So, if you are the personal representative and the sole beneficiary of the estate, it usually does not make sense to take any fees. But, the money you get as beneficiary from the estate is income tax free.
