Personal Representative Questions | Executor Questions

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  1. What is probate?

  2. Is probate necessary?

  3. Does all property go through probate when a person dies?

  4. Do life insurance or retirement benefits need to go through probate?

  5. Do living trusts go through probate?

  6. How much does probate cost?

  7. How long does probate take? (see time line)

  8. Where will the probate hearing be?

  9. Who is in charge of the probate process?

  10. Who can be the personal representative?

  11. Who is not allowed to be the personal representative?

  12. Does the Court supervise the personal representative?

  13. What does the personal representative do?

  14. If I am named as executor in a Will, do I have to serve?

  15. If I serve as executor, will I get paid?

  16. What happens if the personal representative fails to perform his or her duty? (see article)

  17. Do I have to use a lawyer for the probate process?

  18. What if someone objects to the Will?

  19. Who can contest a Will?

  20. When can a Will be contested?

  21. What if there is no Will? (see locating the will)

  22. What happens if we cannot find a Will?

  23. What if the decedent owned land in more than one state?

  24. How do creditors get paid?

  25. If I am a beneficiary and the estate does not have enough money, do I have to pay creditors out of my own pocket?

  26. How are taxes handled in probate?

  27. Am I responsible for paying the rest of my deceased spouse’s bill?

  28. How can I find out if there was a Will?

  29. What if someone dies and I have the Will in my possession?

  30. As an heir, how do I stay informed of what is happening in the probate case?

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11. Personal representative question: Who is not allowed to be the personal representative?

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.  

13. Personal Representative question: What does the Personal Representative do?

The Personal Representative must:  (see fiduciary duties)

    • decide if there are any probate assets;

    • 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. 

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14. Executor Question: If I am named as executor in a Will, do I have to serve?

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. 

15. Executor questions: If I serve as executor, will I get paid?

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.

Talk to a lawyer for more information.

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