Duties of the Personal Representative in Probate

By Lane V. Erickson, Idaho Estate Planning Attorney

When it comes to your Pocatello estate planning, one of the most important decisions you will make is who you nominate as your personal representative. The reason this is so important is because this particular person will be in charge of everything that you need to have done.

The Pocatello estate planning attorneys on the Racine Olson team have assisted clients in completing their customized estate plans for over 70 years. While estate planning is unique and should be customized to fit the individual needs of each person, there are basic parts of estate planning that every person should have completed. Our goal is to help you get this done in a way that will fit your particular needs and circumstances. This includes helping you decide who you should appoint as your personal representative.

At Racine Olson our Idaho estate planning team of lawyers is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our lawyers are skilled and experienced. Additionally, they have all earned the highest ratings and rankings possible on all the available legal reporting services including Martindale-Hubbell, Justia, and AVVO. In other words, the skills and abilities of our attorneys is top notch.

To start in helping you with your own estate plan, we encourage everyone who is interested to download and review our Estate Planning Questionnaire which is a pdf document that allows you to pull together all the information you need to think about. We then schedule a free 30-minute consultation so we can answer all your questions and help you decide what you do and don’t need as part of your own customized plan.

This article is designed to help you decide who you should appoint as your personal representative. We do this by first discussing who can be a personal representative. We will also discuss who this person will be in situations where you either do or do not have a written estate plan in place. Finally, we summarize the duties and responsibilities the personal representative has when it comes to dealing with your estate after you die.

So, as a first question, who can be your personal representative? The first requirement is that the person has to be over the age of 18. In other words, Idaho law requires the person you appoint to be a legal adult. In Idaho that means someone who is over the age of 18.

Additionally, a person can only be appointed as a personal representative if they have legal capacity. This means the law recognizes that they are mentally, and emotionally, capable of dealing with their own finances, property, and affairs. If a person is legally adjudicated as being incompetent, or if they have a known handicap or disability that would impair their ability to act as a personal representative, then that person cannot be appointed.

To summarize, any person who is a legal adult and who has legal capacity can be appointed as a personal representative of another’s estate.

The next question is probably the more important question, which is who will be appointed as your personal representative. The answer to this question depends on whether you have or have not completed your own written estate plan.

If you have, then your written last will and testament allows you to nominate who you want appointed as your personal representative. Again, so long as they meet the legal requirements described above, which is being a legal adult and having legal capacity then you are able to name anyone you choose to act as your personal representative. If for any reason the first person you have chosen is unable or unwilling to act as your personal representative, then your last will and testament will go to the list of successors you have made.

However, if you do not have a written last will and testament then things are very different. In this circumstance, the Idaho intestate statutes control who will be appointed as your personal representative. Specifically, Idaho Code § 15-3-203 prioritizes the persons who can be appointed. It starts with a surviving spouse. If there is none, or if that person is unable or unwilling to serve then it goes to children. If they can’t do it then it goes to other living relatives. Finally, it allows even creditors to nominate themselves to act as a personal representative if need be.

The problem with this particular system is that you no longer have any control over who will take care of your estate when you die. In fact, the person who is appointed could be the last person you yourself would choose to do this for you. For this reason, we always suggest that each person have a written Will where they can make these choices themselves rather than leave them up to chance.

The final question is what does a personal representative actually do? In summary, they do two specific things. First, they are required to make sure that all your debts and obligations are paid from the money, property, and other assets that you have in your state. They do this by publishing notice to creditors in the newspaper as described in Idaho statutes, they also contact known creditors and work to resolve any debts or claims against the estate that are made.

Second, the personal representative is obligated to carry out the specific instructions left by the person who died in their written last will and testament. In other words, if the will describes who the beneficiaries are, those are the persons that the personal representative is required to distribute the estate to.

On the other hand, if there is no written will, then the personal representative is required to follow the intestate statutes which describe who the beneficiaries of the estate are. Again, in this instance, the personal representative doesn’t have any control other than doing exactly what the statutes state and require.

If you have questions or concerns about who you should nominate as your personal representative and how this is done, or if you are completing a probate for a loved one and you have questions about what a personal representative is supposed to do, we can help. We have assisted clients with creating estate plans and completing the probate process for over 70 years. We are skilled and experienced and are confident that we can help you too. Please call us today for a free 30-minute consultation.

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho estate planning problems.