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Who Is Legally Responsible for handling Probate?
When someone dies with a will, the personal representative or executor named in the decedent's will, is the individual who is responsible for handling probate.
When there is no will, the court will appoint an administrator who manages the estate and probate process according to the state’s probate laws.
In most states, the probate court maintains a great deal of oversight over the executor or administrator’s actions and requires permission to do certain activities like selling property.
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Can There Be More Than One Personal Representative?
Serving as a personal representative is a major responsibility and requires a great deal of time. It is possible for someone to name more than one person to act as executor of the estate. This can come with downsides as the co-executors must act together and agree on everything. This can be inconvenient and cause delays.
Is It Required For The Representative To Live In The Decedent's State?
Each state has its own laws regarding personal representatives. In most states, it isn’t strictly necessary for the executor to live in the decedent’s state but it certainly makes the process easier and faster.
In North Carolina, if the personal representative lives in another state they will need to appoint a resident process agent who lives in North Carolina to assist them with the process. To learn more about the roles of the resident process agent read the article: What Does A Resident Process Agent Do In Probate In NC?
What Are The Main Duties Of A Personal Representative Of An Estate?
The executor has many responsibilities during probate. The personal representative’s primary duties include:
Identifying and creating an inventory of the assets of the estate
Determining which, if any, assets fall under probate
Receiving any payments due to the estate
Opening an estate checking account
Appraising or valuing estate assets
Determining who will receive what from the estate
Giving notice to potential creditors
Investigating claims against the estate
Paying outstanding debts and claims
Paying expenses to administer the estate
Handling paperwork which includes notifying Social Security of the death, court documents, and discontinuing utilities
Distributing property and assets to beneficiaries
Filing final taxes
If I Am Named As The Personal Representative Do I Have To Accept?
Being an executor is a major job. If you are named an executor, you do not have to accept. If you agree to serve as the personal representative, you can also resign later if the job is too difficult. The alternate person named in the will can be appointed by the probate court if you refuse the job or the probate court can appoint someone else.
Are Personal Representative Usually Paid?
There is no requirement that the executor be paid, but most receive compensation for the work they do. Personal expenses are always paid and the representative usually receives a fee of around 5% of the estate’s total value. In some states, this is mandated by law. The fee usually gets smaller as the estate’s value grows.
Any funds paid to the executor must be approved by the probate court. In some circumstances, additional fees can be awarded.
What Happens If The Representative Fails To Perform Their Legal Duties?
One of the reasons many people refuse to be an executor is the legal liability they face. An administrator or executor who does not perform their duties can face personal liability for any damages they cause.
There are many circumstances in which an executor can be liable, such as selling assets without authority, mismanaging assets, failing to collect money due the estate, overpaying creditors, failing to file taxes on time, or distributing assets to the wrong beneficiaries.
Any of these errors (and others) can cause the personal representative to face out-of-pocket costs.
Who Can or Can Not Be A Representative of An Estate?
As a general rule, anyone can be an executor if they are over 18. Some states bar felons from serving as executors. There may also be limits on out-of-state personal representatives who may need to be a primary beneficiary or obtain a bond.
If the court needs to appoint a personal representative or an administrator, they typically choose from this list in the following order of priority:
The person named as the personal representative in the will
A surviving spouse who is a beneficiary
Other beneficiaries
Surviving spouse who is not a beneficiary
Other heirs
Someone chosen by a creditor and approved by a probate judge
North Carolina Probate Solutions
At North Carolina Probate Solutions, we understand that losing a loved one is a painful experience. We know that the last thing you need is to worry about is the dispensation of the estate. That’s why we work hard for all of our clients to help them navigate the probate process during this trying time.
Don’t get tied up in probate - Unravel the probate process with the professionals at North Carolina Probate Solutions.
[Need help with probate? Join our Private Facebook group where you can ask questions and get answers, learn from others or share what you learned about the probate process. Be the first to join our new group! Join Here.]
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Disclaimer: The above information is provided for informational purposes only. While we do our best to keep our content and links up-to-date, North Carolina state laws may change periodically, so be certain to confirm any state specific information with a local authoritative source such as the court clerk’s office, or if necessary, an attorney.