This month, I am focusing on the topic of Probates and why we want to avoid them. Click here to read about last week’s article –What is Probate and Why Do I Want to Avoid It. This week, I would like to discuss reasons why you want to do a probate and who you should choose to be the Personal Representative or Executor of your estate. Either term is used to denote the person who administers the estate. This person determines what all the assets are, determines who the creditors are, pays off the creditors and distributes the assets to the beneficiaries.
So, if you read my post from last week, you are probably thinking, “why the heck would I want to let my assets go through probate?” Sometimes, if a person does not have children and/or a spouse, and is leaving their estate to a charity, they may not care about the fees and costs of a probate because it is going to a charity. Also, the testator (the person making the Will) may only have a house and may not feel comfortable doing an enhanced life estate deed (click here for explanation – Enhanced Life Estate ) or may not want the expense of setting up a Revocable Trust knowing that the house would have to go through probate anyhow (click up above for last week’s blog explaining what I mean). In some instances, allowing the house to go through probate makes sense.
If you do decide to do a Will, who should serve as the personal representative? My advice would be to appoint someone who is fiscally responsible. The personal representative has many jobs. He or she must determine what all the assets are and file an inventory with the Court. He or she must also determine if there are any bills to be paid from the estate and prepare an accounting of the money that was brought into the estate and the bills that were paid. Finally, it is the personal representative’s job, once all of those tasks are done, to distribute the assets to the beneficiaries. This is a huge responsibility. Of course, the personal representative will have the help of his or her attorney to complete all these tasks, but it helps if the person doing this job is someone who can handle money and understand the responsibilities.
Sometimes, clients want to make all their children as joint or co-personal representatives because they do not want one child thinking they were not liked as well as the other child. I do not recommend having co-personal representatives (or co-agents or health care surrogates for that matter) because if they cannot agree on certain tasks, having them serve together will only make matters worse.
If you have questions about or other estate planning matters, please contact us or call the office to schedule a complimentary phone consultation with one of our knowledgeable attorneys at 813-438-8503.