Posted by Martin Heller Potempa & Sheppard, PLLC on August 10, 2021
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When you’re planning for your future, one of the top things on your mind is who you will leave in charge of your estate. You want to be sure you understand everything you need to have your loved ones follow your wishes after you’ve passed away. To do this, you’ll have to establish who your Personal Representative will be.
Martin Heller Potempa & Sheppard, PLLC can help you understand the role of a personal representative and ensure that you have everything in place for the future.
What is a Personal Representative?
One of the most important results of a probate hearing is the appointment of the Personal Representative. The “Personal Representative” is what used to be referred to as either the “Executor”, the male title, or “Executrix”, the female title. Now, it is just simply known as the Personal Representative.
When Does a Personal Representative Have Authority?
While the client is alive, the will has little or no legal authority. It is really little more than pieces of paper. Correspondingly, the Personal Representative has no authority to act for an estate. It is not until the will is entered into probate by the court, the estate is opened, and the Personal Representative is granted Letters Testamentary, that the Personal Representative has any authority.
This means that the Personal Representative has no authority to act for the decedent’s estate until he/she receives the Letters Testamentary from the court. We often get questions from people about why their authority to be in charge of a person’s estate is not being recognized. They are frustrated because the will clearly states that he/she is to be appointed as the Personal Representative. The first question we ask them is whether the will has been probated in court. In these situations, they usually answer, “No.”
We explain, stepping through the process chronologically, somewhat in reverse:
For the Personal Representative’s authority to be recognized, he/she needs to have the Letters Testamentary issued by the probate court.
The Letters Testamentary is only issued after a court proceeding after the court opens the estate and accepts the will, opens the probate estate, and appoints the Personal Representative.
To have the court open the estate, you need to have a proceeding in probate court.
Therefore, the Personal Representative’s authority will not exist until probate occurs for the decedent’s will.
What if the Personal Representative Declines to Serve?
The person who is appointed as the Personal Representative is not obligated to serve. He/she can decline to serve. He/she just needs to file a simple document with the court declining to serve. If that happens, the court will look to the will for an alternate appointment. Often, a will has provisions that appoint an alternate Personal Representative in case the primary Personal Representative decides not to serve.
Talk to an Estate Planning Lawyer Today
We know that planning for the day you’re no longer here can be difficult, and figuring out exactly what to do can be confusing. Helping your loved ones understand their roles in this and what authorities they will and won’t have can also be challenging. Martin Heller Potempa & Sheppard, PLLC is here to give you the guidance you need when you start planning your estate.