When creating a will, one of your most important considerations is who to choose to serve as the Personal Representative of your estate.

The role of the Personal Representative is to carry out the instructions that you provide in your will. Any deviation from their specified powers could cause a conflict in your estate that leads to legal consequences.

To prevent any unnecessary complications in the settling of your affairs, avoid ambiguous or unclear language in your will. If there are any doubts about your last wishes, the Personal Representative and beneficiaries may wish to consult with an estate planning lawyer to discuss next steps.

What Happens With Your Will When You Die
Upon the death of the testator—the person who made the will—probate will be opened if the testator died owning assets in their sole name and without a properly completed beneficiary designation form.

Probate is the court-supervised process in which the testator’s will is validated and administered. The person named as Personal Representative in the will initiates and carries out the probate process. The probate process can vary slightly from state to state, but generally involves the following steps:

1. The death certificate is filed with the court.
2. The testator’s will is submitted to the court and confirmed as valid.
3. A petition to initiate probate is filed.
4. The court gives the Personal Representative permission to gather, evaluate, and manage the testator’s assets.
5. The Personal Representative contacts beneficiaries to inform them that probate has commenced.
6. An inventory of the deceased’s assets is submitted to the court.
7. The testator’s outstanding debts and taxes are paid from the testator’s assets.
8. The remaining assets are distributed to the beneficiaries.
9. The estate is closed and probate ends.

If a person passes away without a will, the probate process is similar, but the court chooses the Personal Representative, identifies heirs, and determines who gets what. Dying intestate can even empower the state to choose the guardian of your minor children.

It may not be possible to avoid probate completely (for example, if a guardian appointment is required for a minor child, if a Personal Representative must represent the decedent in a pending or new lawsuit, or if the decedent died with assets solely in their name and without a designated beneficiary). Probate duration and costs, however, can be reduced through careful estate planning.

Responsibilities of the Personal Representative
The Personal Representative named in a will is responsible for carrying out the testator’s final wishes. Their duties include locating and valuing assets of the estate, paying debts, and distributing assets to beneficiaries in accordance with instructions in the will.

Personal Representatives owe a fiduciary duty to the estate and its beneficiaries that requires them to act in the best interests of both. Because a Personal Representative may also be a beneficiary of the estate, their actions may be scrutinized to ensure they are acting fairly and legally.

When a Personal Representative Can Use Discretion
The Personal Representative must, to the best of their ability, carry out the directions expressly stated in the testator’s will. They cannot make changes to the will, but there are cases where the Personal Representative can use discretion when settling an estate. The testator might explicitly give discretion to the Personal Representative, or the need to exercise discretion may arise due to ambiguity in the will, as in the following examples:

• The will gives the Personal Representative wide latitude to decide when to sell the testator’s property.
• The will allows the Personal Representative to decide whether to convert assets to cash prior to distribution.
• The will states that “reasonable and necessary” repairs must be made to the testator’s home prior to its sale or distribution (words such as “reasonable” or “necessary” may be too vague and leave the Personal Representative confused about how to proceed).

If the will is unclear, the Personal Representative should seek clarification from the court. Anyone with a stake in the estate may also raise a legal challenge against the Personal Representative, asking the court to remove the Personal Representative or commencing probate litigation against them.

When a gray area exists within the provisions of the will and the Personal Representative acts in good faith and within the scope of their power and duties, the court may uphold their actions. A petition to remove a Personal Representative or a lawsuit against the Personal Representative for breach of fiduciary duty will only succeed if there is evidence of misconduct, such as the Personal Representative explicitly going against the will or estate’s interests, acting in their own best interest, or withholding an intended gift from a beneficiary.

Beneficiary Agreements to Change a Distribution
While the Personal Representative and beneficiaries cannot rewrite a testator’s will after the testator has died, the beneficiaries may be able to mutually agree to modify what they receive from the estate.

Making changes to distributions can be done using a document known as a nonjudicial settlement agreement. A nonjudicial settlement agreement is a contract that may be used whenever the beneficiaries agree that asset distribution should be different than what the will states, including in these situations:

• As a strategy to minimize a beneficiary’s inheritance tax
• When the family wants to balance out unequal distributions among all beneficiaries
• To settle disputes about the distribution of assets

A nonjudicial settlement agreement can be a way to resolve a loved one’s legal challenge to the will. The court should respect this agreement if it meets applicable legal requirements. However, before signing an agreement to change the provisions of the will, the beneficiaries should consult with a probate attorney so they understand whether this type of agreement will be legally recognized, along with what the implications and potential consequences would be.

Legal Guidance for Personal Representatives and Other Family Members
In addition to assisting with a nonjudicial settlement agreement, there are many issues related to probate that might require attorney assistance.

Personal Representatives, beneficiaries, and anyone who feels they have been treated unfairly in a will may need to consult with a probate attorney about interpreting and administering the will, determining their rights and duties under state probate law, and potentially challenging the will in court. In addition, when creating your will, it is crucial that you set out your intentions in a way that minimizes the potential for conflict among everyone involved.

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If you need help with a will or probate issue, we can help. Schedule a consultation with us today.