The Importance of Designating a Backup Personal Representative
Barry E. Haimo, Esq.
April 30, 2015
When planning your estate, determining who to name as a personal representative is both incredibly important and incredibly challenging. If your estate goes through probate (or estate administration), your personal representative will play a major part in your estate plan, handling all aspects of your estate administration—from filing paperwork to making sure your assets are properly distributed among your designated beneficiaries.
Serving as a personal representative is a major responsibility and is often a very time-consuming task. It’s, therefore, essential to choose your appointmentee wisely. Ideal candidates are reliable, goal-driven, detail-oriented, and able to invest time and energy into the role.
Since personal representative duties can sometimes be overwhelmingly demanding, it’s highly advisable to name a backup personal representative in your estate plan in case your first choice isn’t up to the job. This person is usually referred to as an alternate or successor personal representative, or alternate or successor executor in other states. Your backup personal representative can serve in the event that your primary choice isn’t willing, able, or comfortable with the position.
Neglecting to name a backup can create obstacles and conflict during probate and the process of settling your estate. If you do not name an alternate personal representative, the court will be forced to find one for you, and that may cost the estate, diminishing the amount your beneficiaries receive, or worse. This is exactly what happened to the Daniel Yates and his father’s estate.
An Incompetent Personal Representative
As his only son, Daniel Yates tried to visit his father at his home out in the suburbs of New York as much as possible. Walter Yates’ eyesight, hearing, and overall health were failing fast, but he always looked forward to Daniel’s visits with great anticipation. He was proud of his son’s accomplishments, and often bragged to his friends of Daniel’s successful Manhattan dentistry practice, his big car, his beautiful wife, and his three talented children.
When planning his estate, Walter named his son as his beneficiary without a second thought. He was certain that his bright, young son would be able to carry out his last will and testament with efficiency, expertise, and enthusiasm.
Although Mr. Yates’ health had been deteriorating for some time, it still came as a shock when he suddenly died on a sunny Monday morning. After speaking with his father’s doctors and lawyers, Daniel was somewhat distressed—though not too surprised— to learn his father had named him as his personal representative.
The responsibility couldn’t have come at a worse time. Daniel had just opened up a second branch of his office in Greenwich Village and hired on a team of new staff members, fresh from dentistry school, who needed training. His oldest child was getting ready for the SATs, and Daniel had taken on a major role in helping her study. On top of everything else, his wife was pregnant with their fourth child, and she was due any day.
It was with both regret and resolve that Daniel told his father’s lawyers that he wouldn’t be able to accept the position of his father’s personal representative. With no other suitable candidates named in Walter’s will, the lawyers informed Daniel that it would fall to the court to decide a new successor based on priority as determined by statute.
The probate court assigned a person who neither Daniel nor his father had ever met to the personal representative role. At first Daniel was relieved the courts had been able to appoint someone, though he wished it could have been him or someone his father had trusted. That feeling would grow as the appointed person proved both incompetent and dishonest.
Daniel’s first inkling that something was wrong came months later when he was driving his daughter to an SAT prep course that happened to pass Walter’s suburb. As part of his duties, the personal representative was tasked with the upkeep of Walter Yates’ large home, and when Daniel and his daughter passed by, they saw that it was a mess. The grass was overgrown, weeds were flourishing, and someone had apparently decided to use the lawn as a trash can, because beer bottles and cans were everywhere.
Outraged, Daniel contacted the representative immediately and he apologized and promised to get a cleaning and lawn service over there as soon as possible. Daniel was slightly mollified, but couldn’t shake the feeling that things weren’t quite right. He started to investigate.
A quick call to the nursing home his mother was in led him to discover that they hadn’t been paid since Walter’s death. Apparently, the representative had repeatedly told them that there were going to be some delays with the money, but that he was working on it. Now truly concerned, Daniel looked into the personal representative’s accounting and discovered all kinds of exorbitant fees that were going to the representative, as well as excessive charges for — of all things — a cleaning and lawn service for Walter’s house.
Without delay, he contacted an estate lawyer he knew and explained the situation. Together, they were able to bring a case against the representative and get him removed, but it took a lot of time and effort that Daniel just didn’t have. All told, Walter’s estate didn’t really recover from the dishonest representative for five full years.
Choose the Right Personal Representative with Careful Estate Planning
You can avoid leaving your survivors with fees, complications, and plain old thievery by appointing both a competent personal representative and an alternate personal representative to serve in their stead if they are not up to the responsibility. When you choose your personal representatives yourself, you are able to ensure your chosen person knows you well, is familiar with your estate, and understands your values.
Close friends and family members are natural choices; however, if you don’t feel that anyone you know can handle the enormous responsibility, you may want to name a professional as your personal representative. A trusted lawyer is a good personal representative choice if your estate is particularly large or complex, since the attorney’s experience and familiarity with the probate process will likely enable him or her to distribute your assets in a manner that is timely and accommodates your wishes. Be aware, however, that whomever you choose is entitled to reasonable compensation under the statute.
When trying to decide who may be the best personal representative and alternate personal representative for your unique estate, it’s a good idea to consult with an estate planning attorney. Through careful planning, you and your attorney may be able to determine the most appropriate and competent candidates, reducing the complications and fees your estate may face in the probate process.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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