What Is The Role Of A Personal Representative In An Estate Plan?
The personal representative is the office that used to be called executor or executrix. They are the hands-on manager of a probate estate or estate administration. One of their first duties is to bring the will, if there is a will, to an attorney who will draft a petition to admit the will to probate and to appoint the personal representative officially into their job as personal representative, to take the control of the estate. Their next task is to issue notice to creditors. The personal representative is obligated to provide written notice to creditors of the decedent and give them a time wherein they can file their claims against the estate.
For example, if I were to pass away in a hospital, it is believed that the hospital could have a claim against my estate. My personal representative would mail the notice to creditors to the hospital where I passed away, and the hospital would have the opportunity to send their claim to the personal representative so that it would be paid at the appropriate time. In Oklahoma the notice to creditors runs a little more than sixty days, and after that time has expired the creditors who made no claim cannot later bring a lawsuit to recover money. This is a great benefit to the people who inherit through this probate, as they can then use, spend, and invest the money as they see fit without fear that a creditor of the decedent will later come and try to take those funds from them.
While the notice to creditors has been issued, the personal representative will be tasked with preparing an inventory and appraisal of the estate. This is basically a list of what the decedent owned and what it was worth. That inventory and appraisement has to be filed with the court and made part of a public record. If during the pendency of the probate it becomes apparent that it would be helpful or desirable to sell property, the personal representative can petition the court for permission to sell real estate or personal goods, and receive authority from the court for such a sale, market the property, and then report to the court as to how the sale proceeded and what the net proceeds were for the estate.
If the estate owns assets that need maintenance, it is the job of the personal representative to take care of those assets belonging to the estate and perhaps insure the assets. If it is a house, make sure that it receives the appropriate care so that it does not lose value. In summary, the personal representative of the estate is somewhat like a business manager. They have the power, subject to approval of the court, to take such actions as are necessary to maintain and preserve the estate until the court enters an order of distribution, and then a personal representative will be directed in that order of distribution to give the assets to the beneficiaries.
What Is Taken Into Account When Creating A Customized Plan For Becoming Incapacitated?
In Oklahoma we generally go through a guardianship process to determine mental incapacity. Unfortunately, this is very expensive. Generally, someone from the family would contact an attorney such as myself and report that their loved one is no longer able to take care of their affairs. The family member will retain an attorney which usually costs several thousand dollars, and they will file a lawsuit in the district court. The district court will then appoint an attorney to represent the proposed ward, (the ward being the person who is alleged to be incapacitated) and the court might also appoint a guardian in ad litem to help report to the court as to what is happening in the family.
The court will often require that a psychological/medical evaluation be performed. Further notice will have to be given to the other family members of the alleged incapacitated person, and those people will have the opportunity to object to the guardianship or petition the court to appoint them as the guardian instead of the original petitioner. All of these steps take time and cost a lot of money. It is not uncommon for a contested guardianship to cost $10,000 or $20,000 in attorney’s fees, thousands more in expert witness fees, in addition to the time and stress for everyone involved. One of the ways around this proceeding is for the person who is preparing their estate plan to create their own disability panel.
You can decide in advance and list the people whom you trust to make a determination as to whether you are disabled. You can also appoint backups for those people should any of them be unwilling or unable to serve on the disability panel when the time comes. Let me give you an example. If I had appointed my two brothers and my sister as my disability panel, and if I suffer a debilitating illness, I can reasonably expect that my brothers and sisters will talk to me and be able to reach a reasonable belief as to whether or not I am incapacitated. If the three of them agree that I am incapacitated, then I am no longer able to act as trustee of my trust and the successor trustee steps forward to take control of my trust and follow the rules of my trust. All of that can happen in a day, maybe two days.
Instead of costing my family $20,000 and weeks or months of litigation, it costs my family a half a day of their time, and then there is a binding decision as to whether I am incapacitated. Developing a disability panel is a great money-saving device, and you get to decide in advance who you trust to make that decision. You are not left to the mercy of doctors, judges and attorneys whom you have never met.
For more information on Role Of Personal Representative, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (405) 880-8960 today.
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