The Purpose of a Personal Representative in Probate
A personal representative is an individual approved by the court to settle an estate. This person may also be referred to as an executor/executrix or an administrator.
This individual is in charge of overseeing the distribution of assets in probate court. They’re also in charge of settling all aspects of an estate after someone passes away. If a decedent left a will, the personal representative should be named in that legal document. When a person passes away without a will, then the Probate Court names the personal representative.
This article explains the various duties and functions of a personal representative in Michigan’s probate process.
Who Gets To Be A Personal Representative?
In Michigan, various laws dictate who may be a personal representative. A person named in a will takes precedence over all other claims according to MCL 700.3233(1). In fact, this statute gives highest priority to the person named in a will. So, a decedent’s wishes are honored after death and may not be changed unless a will was altered when the decedent was incapable of making decisions.
Sadly, some people take advantage of elderly folks with dementia and convince them to change their wills later in life. Basically, this despicable ploy enables selfish people to transfer assets to their names and restructure wills. Seek legal advice of someone you know has tampered with an older person’s estate or will.
When no will exists, an estate must go through probate court. The court will appoint a personal representative. Generally, the spouse has top priority, then other heirs. Anyone may file paperwork to be a personal representative and these claims may be challenged in court. Numerous forms may be involved in this process including:
- Application for Informal Probate and/or Appointment of Personal Representative
- Permission and Order to Open a Safe Deposit Box to Locate a Will or Burial Deed
- Probate Register’s Statement
- Acceptance of Appointment
- Testimony to Identify Heirs
- Letters of Authority
- Testimony to Identify Devisees
- Proof of Service
The process involved in being a personal representative may be quite complex and often requires legal assistance. So, it’s important to seek advice from an estate planning attorney.
Duties and Responsibilities
Personal Representatives have many responsibilities and rules to follow when settling an estate. Of course, the process may become more complicated with very large estates. Duties include:
- Prepare an inventory of assets (including out of state assets)
- Pay inventory fee
- Determine creditors and give notice of decedent’s passing
- Pay bills of the estate
- Pay taxes
- Distribute assets (after bills and taxes are paid)
- File the final tax return
- File a Notice of Continuing Administration if the estate is open more than one year.
Considering the amount of duties entrusted to these individuals it’s important to meet with an experienced attorney and write a will. This legal document should name your the person in charge of your estate and an alternate, in case your first choice is unavailable. Of course, it’s advisable to inform your representatives of your intentions. Planning ahead may keep your family out of Probate Court, saves money and eliminates stress during their time of grief.
Legal Issues With Personal Representatives
In cases where a personal representative is unfit to perform their duties, there’s a process to remove them from the role. In these cases, a petitioner must prove to the court that this removal is in the best interest of the estate.
Examples of when someone may be removed from the role include:
- Mismanagement of assets
- Fraud or embezzlement
- Breach of fiduciary duty
- Sudden illness or injury
Attorney for Probate & Personal Representatives
If you’ve been appointed as personal representative of an estate or you have legal issues regarding the actions of one, it’s vital to seek legal help immediately. Having an attorney that’s experienced with estate planning and probate is vital toward ensuring the estate in question is properly handled.
At Sean J Nichols, PLLC, we have years of experience representing individuals through the process of Michigan probate. Our law firm is happy to examine your case and provide you with the best representation possible.