Ideally, when someone creates a Last Will and Testament he/she discusses the appointment of the Personal Representative (formerly referred to as “Executor” or “Executrix”) with the prospective Personal Representative before making the appointment official and executing the Will. In reality, however, that doesn’t always happen. Consequently, it is not uncommon for a grieving loved one to find out that they have been appointed to administer the estate of the decedent. If you find yourself in just such a position, and you have never before served as a Personal Representative, you may be feeling overwhelmed at the prospect. To help you gain some perspective on what is expected of you in the coming weeks, and likely months, an experienced Oklahoma probate attorney discusses the top five duties of the Personal Representative.
How Is A Personal Representative Appointed?
The Personal Representative of an estate is appointed by the Testator, the person creating a Last Will and Testament. If a decedent fails to execute a Will prior to death, the estate will be probated as an “intestate” estate. In that case, the Oklahoma intestate succession laws determine what happens to the estate assets. In addition, any competent adult can volunteer to oversee the probate of an intestate estate. If no one volunteers, the court will have to appoint someone, usually a local attorney, to handle the probate of the estate.
Personal Representative Duties
The overall job of an Personal Representative is to administer the estate of the decedent and to eventually transfer any remaining assets to the beneficiaries named in the Will and/or the legal heirs of the estate. That job entails a wide range of duties and responsibilities, the most important of which include:
- Identifying and protecting the estate assets. The first thing the Personal Representative must do is to locate all relevant estate planning documents which may include the Will, trust agreement, life insurance policies, bank and investment statements and/or Letter of Instruction among others. These documents should provide information regarding the estate assets which must all be identified and secured at the beginning of the probate process. Securing assets might include things such as:
- Taking possession of vehicles
- Locking up real estate
- Speaking to employees at a business and arranging for continued operations.
- Closing out financial accounts.
- Notifying creditors and paying claims. All known creditors can be personally notified that probate is underway but for unknown creditors, the Personal Representative must notify them via publication in a local newspaper. Creditors have a statutory period of time, depending on how they were notified, within which they must file a claim against the estate or they lose the ability to do so. As the claims are submitted, the Personal Representative needs to evaluate each claim filed and approve or deny the claim. Approved claims are paid out of the available estate assets. If there are insufficient assets to pay all claims, claims are paid according to the priority set by law. If there are insufficient liquid assets available to pay all claims, the Personal Representative must decide which assets to sell to raise the need cash.
- Litigating any claims. Sometimes the probate of an estate proceeds without a hitch and with no sign of a dispute; however, disputes are far from uncommon during the probate of an estate. If a beneficiary or heir questions the validity of the Will submitted for probate a Will contest might be initiated. The Personal Representative is required to defend the Will throughout the ensuing litigation. In addition, creditors whose claims were denied also have a right to appeal that denial directly to the court. Once again, the Personal Representative must defend the decision to deny the claim.
- Calculating and paying taxes. Every estate is potentially subject to federal (and sometimes state) gift and estate taxes. The Personal Representative is responsible for determining if the estate owes estate taxes and, if it does, the tax must be paid out of estate assets. An error in the calculations used on the estate tax return could be devastating to the overall probate of the estate.
- Distributing estate assets. The idea behind creating a Will is to ensure that the Testator’s estate assets are distributed according to his/her wishes after death. As such, there should be assets left over after all approved claims are paid, including any taxes owed. The Personal Representative is responsible for preparing any legal documents necessary to effectuate the transfer of the remaining assets to the intended beneficiaries and/or heirs of the estate.
Contact Oklahoma Probate Attorneys
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding the duties and responsibilities of a Personal Representative, contact the experienced Oklahoma probate lawyers at Parman & Easterday by calling 405-843-6100 to schedule your appointment today.
Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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