Who to Choose as Your Personal Representative

By Lane V. Erickson, Idaho Estate Planning Attorney

When it comes to your estate-planning perhaps the most important question you need to answer is who are you going to nominate and appoint as your personal representative to take care of your estate after you are gone? A personal representative that you nominate is listed in your last will and testament, which is one of several documents every person should have as part of their basic estate plan.

The personal representative is the person who becomes in charge of your estate after you pass away. As stated above, they are nominated by you in your Will. They are then appointed to that position by an order that is issued by a court through the probate process. This order, and other documents issued by the court are what provide evidence that this individual has the legal authority to take possession of all the money, property, and other assets of your estate. This person is then required to resolve and pay all of your debts and expenses. When that is completed, the personal representative’s duty is to distribute the remaining money, property, and estate assets to whoever you designated in your will as your beneficiaries.

Being a personal representative is a big responsibility. This is especially true for someone who has never experienced or been part of a probate before. Because they are carrying out the intentions and wishes of the decedent and caring for creditors while at the same time making sure that distributions are made to beneficiaries, a personal representative has a fiduciary or heightened legal responsibility. This means the personal representative must take great care to make sure they are doing everything correctly.

The purpose of this article is to describe who you should consider naming as the personal representative in your Will as you are completing your estate plan. The reason for this is that not everyone is ideally suited to be a personal representative. Given the responsibilities and time involved in completing a probate, you should make sure the people you list are people you can trust and who have the capability, and the ability to complete this important job.

For a married couple, the first person that naturally comes to mind who should be considered to be appointed as a personal representative is the surviving spouse. This is particularly true because spouses are usually involved in all the finances, debts and expenses, and handling of the property that is in the estate. In other words, the spouse is often already doing all these things.

However, if you are in your older years, or your spouse is not capable of handling the estate for any other reason, then you may want to consider some other person other than the spouse to act as a personal representative. Additionally, even if you do name your spouse as your first choice, they may decide themselves that they don’t have the ability or capability to do the job. It is for this reason that we always suggest that our clients name several alternates or successors who can become the personal representative if their spouse is unable or unwilling to do it.

The next most natural choice for an appointment as a personal representative would be a child. However, this only works if the child is 18 years of age or older. Additionally, you know your children better than anyone, and you have a pretty good idea of whether your children would have the ability to act in this capacity.

As with a spouse, it’s always a good idea to name alternates in case the person you choose is unable or unwilling to serve as your personal representative. For this reason, if you have more than one child, many parents will name successive children to this position.

If you have neither a spouse nor children who can serve as your personal representative, the next best source will likely be a close friend. Keep in mind that there is no legal obligation that you name your spouse or children before a close friend. In other words, if you have a close friend who is intelligent, and who you believe is trustworthy, you can name them as your first choice as a personal representative.

If you are naming a close friend to act in this capacity, then we do suggest that you not name that friend as a beneficiary in your Will. In other words, you want to avoid a situation where there could be a conflict of interest with your close friend. If they are serving as your personal representative and portions of your estate will be going to your family, then it would be wisest to not name your friend as an additional beneficiary.

You can, however, state that they will be paid from the estate for their work as the personal representative. Even if you don’t say this in your Will, the law in Idaho allows a personal representative to be paid a reasonable rate for the work they’ve completed.

It doesn’t happen often but every once in a while a person will get their estate planning done through me and will tell me that they don’t have a spouse or children or any close friends they can rely on to be named as their personal representative. When this occurs, I usually suggest to these clients that they consider some other relationship they may have. This could be a clergyman, or other professional they have some relationship with. Professionals could include attorneys, financial advisors, accountants, bankers or some other professional service provider.

In this instance, the beneficiary of the estate is almost always some type of charity or distant family member. Because of this, there is usually no conflict of interest and naming a professional to serve as a personal representative is a good idea.

If you have questions or concerns about your own estate plan, or who to name as a personal representative in your will, we can help. We have assisted numerous clients in the creation and updating of their own customized estate plans. We are confident that we can help you too!

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.