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3 Mistakes to Avoid When Choosing Your Personal Representative of Your Estate

Choosing the personal representative of your estate is important, and making the wrong decision can cause utter chaos. Here's what to avoid to ensure your wishes will be carried out.

By Allison L. Lee 

As a parent, you’ve always done your best to treat each of your children equally – even peeking into their Halloween candy bags to ensure an equivalent allocation of favorite treats.

Allison L. Lee is the Attorney-at-Law, Director Trusts & Estate Content for FreeWill, a mission-based public benefit corporation that partners with nonprofits to provide a simple, intuitive and efficient platform to create wills and other estate planning documents free of cost. Through its work democratizing access to these tools, FreeWill has helped raise more than $4 billion for charity.

Allison L. Lee

So when you’ve reached the point in your estate planning where you need to nominate a personal representative of your estate (called an “executor” in some states), it may seem logical to do one of the following:

  • Select all of your children to act together
  • Nominate the eldest child
  • Simply pick a name out of a hat to avoid any controversy.

Unfortunately, these are not the best strategies to go about choosing a personal representative, which is a critical decision in the estate-planning process. Making the wrong choice can have serious, unintended consequences that often result in ugly and lasting family strife.

Whoever you choose as your personal representative will be entrusted to carry out your wishes after you pass away. It is important to choose a reliable, organized person to help pay outstanding debts with the money left in your estate, distribute your money and property to heirs, and much more. Your personal representative’s responsibilities can vary based on how complex your estate is and what your wishes happen to be.

For example, your personal representative might have to:

  • Obtain certified copies of your death certificate
  • Locate your last will and testament and file it with the probate court
  • Inform your heirs and relatives of the open contest period — the timeframe when they can challenge the validity of your will
  • Take inventory of your estate and distribute your belongings to your heirs
  • Notify banks, government agencies, insurance companies, and creditors of your passing
  • Use estate funds to settle any outstanding debts, if you have them
  • Maintain your property until the estate is settled
  • File your final income taxes
  • Make court appearances on behalf of your estate

In short, you need to make sure that your personal representative understands and is prepared for the job. Here are a few common mistakes you should take care to avoid:

1. Naming more than one personal representative to keep the peace

It’s understandable that you don’t want to be seen as playing favorites, but naming more than one child as your personal representative for that reason alone can be a recipe for disaster. If co-representatives are named in the will, they must be able to come to an agreement when making important decisions about your estate. If your children have a tendency to disagree (and certainly all siblings disagree from time to time), it can cause serious problems in administering your estate and can also result in years of damaged relationships.

Avoid creating potential discord by communicating with your children clearly and early. Sit your children down and clearly explain why you are only naming one child, and why you’ve chosen the particular child. (For example, say two of your three children are busy with family and professional obligations, and the other child has a more flexible schedule and also happens to live close by.) Your other children are likely to see the wisdom in your decision (and — believe it or not — might actually feel some relief that you’re not asking them to assume additional responsibilities).

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2. Picking someone who isn’t prepared for the job

Being a personal representative is a significant responsibility, and not everyone is willing or able to take it on. It’s a time commitment, so your personal representative must be someone who has bandwidth. It’s also a good idea for that person to live nearby — this makes it easier for them to manage your estate, appear in court if necessary, and distribute your property to heirs. In addition, you need someone who is reliable and detail-oriented and whom you trust to carry out your wishes with minimal bias, outside influence, or family pressure. Lastly, age is important: Your personal representative can’t be a minor, which generally means that they’ll need to be at least 18 years old at the time they are required to act.

Not every child fits these criteria, so choose carefully. If there’s no one able and willing to act as your personal representative, a judge will name one for you from a pool of willing volunteers among family and beneficiaries.

3. Not preparing your personal representative ahead of time

It’s important to be communicative with your personal representative about the role you want them to play so they can be prepared when the time comes. Tell them where you plan to keep your last will and testament so they can start the probate process and follow your wishes. Additionally, tell them where any important property is located. This can include family heirlooms, the original deed to your house, digital assets like cryptocurrencies, and more. Their job will be much easier if they don’t have to extensively search for key paperwork and possessions.

Avoid Bad Blood: Choose a personal representative with care

If you have multiple children, it’s probably very important to you that sibling relationships remain harmonious after your passing. Sadly, in the absence of thoughtful planning, it’s easy for acrimony to occur. The good thing is that you can avoid this with proper planning and by steering clear of common mistakes. Naming a personal representative is as simple as indicating their name in your last will and testament. Just to be sure, consider also naming an alternate personal representative, in case your first choice is unable or unwilling to serve.

About the Author: Allison L. Lee

Allison L. Lee is the attorney-at-law and director, Trusts & Estate Content, for FreeWill, a mission-based public benefit corporation that partners with nonprofits to provide a simple, intuitive and efficient online self-help platform to create wills and other estate planning documents free of cost. Through its work democratizing access to these tools, FreeWill has helped raise more than $5 billion for charity.

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