You may have had a family member or friend ask you if you would consider being a executor or personal representative of their estate.
Without knowing too much about it, you may have said yes thinking you may have to go to a meeting or sign a few forms and your done, right?
Wrong! Serving as a personal representative may be considered an honor because it is a position of trust, but it is also a big responsibility.
Serving as a personal representative or the executor of a person’s estate is a position that tells the Court that you are in charge of making sure a person’s last wishes are carried out according to the will and according to Indiana Law.
A personal representative is an individual that is generally appointed by a person in their will. Most wills will provide language specifying what a personal representative can or cant do. In the event that a will does not appoint a personal representative, or a the person who was appointed is unable or unwilling to serve, an interested party can petition the Court to appoint them as a personal representative. I.C. 29-1-7-4 provides that “any interested person or a personal representative named in the will may petition a court to administer a decedent’s estate”.
The requirements of being a personal representative are relatively straight forward. They are the following:
1. Must be at least 18 years old
2. Must be of sound mind
3. Must not be a convicted felon
A personal representative will need to meet with his or her attorney to take an inventory of the estate. This will insure that all real estate, automobiles, bank accounts and other assets are gathered together, along with all creditors or parties that the Decedent owed money to at the time of their death. A personal representative will then have to work with the attorney representing the estate to ensure that creditors are paid and that all assets are accounted for before any bequest or gifts made through the will are distributed to the heirs.
For some, being a personal representative can be difficult because they may have pressures from heirs or family members to act in a way that is contrary to what the Decedent left in their will or what the Court will permit. This may be addressed differently depending on whether the estate you are administering is Supervised or Unsupervised.
Indiana has provisions in its probate code for probating an estate in a “Supervised” capacity. As the name implies, these estates require the Court to review or approve actions taken by the Personal Representative. For instance, if the decedent left a house to her four children and the children wish to sell the house, the Court will have to approve the sale and price of the house before allowing the personal representative to proceed. Additionally, a supervised estate will also require the personal representative to file a final accounting with the Court. This outlines what assets were in the Decedent’s estate at the date of death and where those assets ended up by the time the Estate was closed.
Indiana also has an informal probate process that allows personal representatives to administer the estate without court supervision. In an unsupervised estate, the parties can operate without the formality of going to court for every estate transaction and family settlement agreements can be used to handle how assets are conveyed. Instead of filing a final accounting with the court, a personal representative can simply provide an explanation of the assets of the estate to the heirs, and the heirs can file waivers of a final hearing to avoid going to Court.
I always recommend telling your personal representative candidate the responsibilities of what they would be taking on.
Have you been named as a personal representative? Do you have questions about your responsibility? Remember you can schedule your free consultation online at rileyandahlerlaw.com.