Choosing a Personal Representative

Your California last will and testament is a critical legal instrument that allows you to say what assets you have and where you want them to go, provide instructions regarding your final wishes, and name potential guardians for your minor children. Without one, your estate would pass according to California law rather than your preferences. Further, your kids’ lives could be tied up in the probate court longer than necessary, and they could be left in an uncertain position waiting for suitable guardians to be appointed. Your will also allows you to designate an important individual—Your personal representative. Here is what you need to know about choosing a personal representative for your California will:

What is a Personal Representative?

In California, a “personal representative” is an individual who will be responsible for ensuring that the administration of another person’s estate is completed during probate. In some states, this person is called an executor. A personal representative may be referred to as an executor in California as well. When someone is not named in this role, a California probate court will appoint an “administrator” to perform this function.

What Does a Personal Representative do?

When a person dies, their will must be filed with the probate court. The personal representative will locate and file your will with the proper probate court. Once the process starts, the personal representative will be officially appointed by the probate court. This action will initiate the legal proceedings necessary to begin the probate case. After that, he or she will be granted the authority to access your financial accounts and records so that they may conduct an inventory of your estate. Within four months, your personal representative must report your assets and debts to the court. The personal representative will identify all of your known creditors and notify them of the estate’s administration. They will approve or deny debts and pay any taxes you owe and file a tax return on behalf of the estate. After the debts and taxes are paid, your personal representative can pay your heirs and submit the appropriate forms to the IRS.

Who Cannot be a Personal Representative?

The California Probate Code specifically prohibits certain individuals from serving as personal representatives. A person cannot serve as a personal representative if:

1. The person is under the age of majority (under 18.)
2. The person is subject to a conservatorship of the estate or is otherwise incapable of executing, or is otherwise unfit to execute, the duties of the office.
3. If grounds for removal of the person from office under California Probate Code §8502 exist.
4. The person is not a resident of the United States.
5. The person is a surviving partner of the decedent, and an interested person objects to the appointment.

However, the non-resident and surviving partner prohibitions do not apply to a person named as executor or successor executor in the decedent’s will.

Selecting a Personal Representative

Choosing the right person to serve as your personal representative will be a matter of preference. However, given the number of responsibilities that this individual will have, it would be best to choose someone reliable, organized, and whom you feel can be accessible to your family. Additionally, you want to make sure that this individual can be detail-oriented and make timely accountings to the court. Consider those closest to you carefully, and determine who would make the most reliable choice. You may also need to think about your loved ones’ emotional states during this difficult time. Your immediate family may not be up to these tasks while grieving your loss. If that is the case, naming someone outside of this group may be a better choice for everyone involved.

Updating Your Will

Once you have selected a personal representative, and completed your will, be sure to review and make updates to the document. Waiting several years to revisit these terms can be highly problematic. For instance, if you drafted your will several years ago, and you have not been in contact with your personal representative for some time, they may no longer be appropriate to serve in this role. If a new personal representative is not named, your loved ones could be faced with tracking the named individual down or going before the court to seek an alternate appointment during an already difficult time.

At the Law Offices of Alice A. Salvo, we understand the importance of estate planning and selecting the right personal representative. We have the expertise to help you take a comprehensive look at your situation and make the right choices for the future. Contact us today to schedule your free consultation.