Who Should Be Your Personal Representative?

Persons writing Wills in Minnesota select a “personal representative” (known as “executor” in some states) to settle their estates after they die. The personal representative manages and distributes the deceased’s assets, per the Will instructions, after first paying the deceased’s creditors, the costs of administering the estate, and any estate taxes owed. In Minnesota, the personal representative has the power to sell real estate, liquidate assets, and determine which bills should be paid and which should be denied.

The personal representative may be a “professional personal representative” such as a bank trust company, or may be an individual family member or friend who has never performed these duties before.

As a practical matter, it may be best to select only one person as the personal representative rather than selecting two or more persons to jointly fill that role.  Persons desiring to name their children, for example, might name one child as the personal representative and name the others as alternative personal representatives. Alternates perform the personal representative duties when the person first designated as the personal representative is unable or unwilling to assume the duties. If two or more persons are appointed as co-personal representatives, they will be required in Minnesota to act jointly – a more cumbersome process than when only one person is the personal representative. Moreover, if the Will names co-personal representatives and one of them has already died or is otherwise unable to serve, the other may not serve alone in Minnesota unless the Will specifically allows solo service.

When choosing among several potential personal representatives, it also may be best to select a relative or friend who lives relatively close because probate proceedings regarding the Will occur in the county where the deceased resided.

Personal representatives for persons who die without a Will, or who die with a Will but without naming a personal representative, are selected based on an order of priority spelled out in Minnesota law. Minnesota law gives first priority to the person named in the Will as the personal representative, or nominated by a power conferred in the Will. The surviving spouse, as a beneficiary, has second priority, followed by other beneficiaries named in the Will. Next in priority is a surviving spouse that is not named as a beneficiary.  Next are relatives who are not named as beneficiaries. Creditors — one of the last in priority — can become personal representatives under certain circumstances.

As long as the personal representative acts “in good faith”, the personal representative will not be personally liable under Minnesota law for his or her actions in the administration of the estate. However, the personal representative is held personally liable – to the extent that there are assets in the estate – by federal and state taxing authorities.

The personal representative is entitled to be paid for administering the estate. A personal representative may renounce the right to such compensation. If the personal representative does not renounce, the Minnesota probate court may determine what level of compensation the personal representative is entitled to receive.  The court will consider the time required, the complexity of the problems involved and the extent of the responsibilities undertaken by the personal representative.

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