Choosing a Personal Representative is one of the decisions that must be made when a person has a Last Will & Testament drafted. In many States, the word used is an “Executor.” Maryland has some legal rules with respect to who can be chosen as a Personal Representative. Here is a quick primer.
What does a Personal Representative do?
Essentially, the Personal Representative is the person that settles up your affairs after death and, in general, handles the administration of your Will. Importantly, the Personal Representative is NOT the person receiving property and assets of the Estate. The Personal Representative is legally put in place – with fiduciary obligations – to manage a decedent’s assets on behalf of the Estate, the heirs and the beneficiaries. Often, the Personal Representative ensures that funeral expenses and final bills are paid, arranges for the preparation of final tax returns, opens a probate case with the county court, with approval from the court, disburses bequests and inheritances, arranges for the sale or transfer of assets as necessary, etc.
Who should be chosen?
As a rule of thumb, the person chosen as a Personal Representative should be:
- Someone trusted
- Someone living close by and, maybe
- Someone having a skill-set useful to the tasks needed to be accomplished
Often, spouses will choose each as Personal Representatives as well as older children who are able to serve. Other times, a trusted business partner, long-time friend and/or even a Maryland attorney can be chosen. Whoever is chosen, the person must be at eighteen years old (when commencing his or her duties) and “be of sound mind.”
Note that, generally, a Maryland Last Will & Testament will list one or two alternative or successor Personal Representatives in the event that the original choice is unable or unwilling to serve. Thus, often, two or three names are listed. There may be many reasons that a Personal Representative might be unable or unwilling to serve including, for example, death, health care conditions, being physically unavailable (such as being overseas) and more.
Who may not serve as a Personal Representative?
Under Maryland law, certain persons are not allowed to serve as Personal Representatives. These include:
- Those convicted of felony criminal charges
- Those under the age of 18
- Those who are mentally incapacitated
- Non-citizens (unless such person is a spouse or close family relative of the deceased)
- Certain judges and court officials (unless such persons are a spouse or close family relative)
Does the choice of a Personal Representative require approval?
Yes. Even if listed in the Last Will & Testament, a person chosen as a Personal Representative must still be approved by the probate judge where the Will is filed. The process involves filing various forms with the Clerk of Court and requesting appointment from the judge as the Personal Representative. If the legal requirements are met and if there are no disqualifying circumstances, generally, the court will approve the person chosen.
Maryland and D.C. Trust and Estate Planning Attorneys
If you are thinking about establishing a trust or need estate planning documents drafted, contact the Maryland and D.C. trust and estate planning attorneys at The Law Offices of Thomas Stahl. We have the experience and expertise you need. Schedule a consultation today or call us at (443) 331-2770.
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