A loved one has named you as personal representative in their last will and testament. Now what? In the immediate future, the answer is…nothing. That’s right: a last will and testament determines what happens to a person’s estate AFTER they pass away. While that person is alive and has capacity, he or she continues to manage their estate in the same manner as before execution of the last will and testament. It is only post-death when the duties of the personal representative begin.
The duties of a personal representative consist of, among other things, identifying the assets of the deceased which are subject to probate, notifying family members and creditors, ensuring the filing of all appropriate tax returns and complying with orders of the probate court. Upon the death of the deceased, the first thing that the personal representative should do is locate the original last will and testament of the deceased. Next, the personal representative should secure the deceased’s home and belongings (which should NOT be distributed at this point). Once this has been done, it is prudent for the personal representative to retain counsel (while a personal representative may act as his or her own lawyer in probate, I strongly discourage it). An experienced probate attorney will be able to counsel the personal representative on the probate process and make court appearances on the personal representative’s behalf.
Probate is a four-letter word to many. Granted, probate is often time-consuming and expensive. However, by knowing the first steps and employing a knowledgeable probate attorney, the personal representative can minimize delays and protect themselves from potential legal liability for improper handling of the deceased’s estate.