WALTEMATH LAW OFFICE

End of Life Options Act

A personal representative is the person who is responsible for administering an estate after the death of someone.  To be valid, your Last Will and Testament (“Will”) must name a personal representative (sometimes called an executor).  The person you name as the personal representative has no authority to act for you, until they are appointed by a court.  Estates do not require the appointment of a personal representative if assets are minimal, and do not include real estate.  It is important to seek the advice of an attorney before opening a probate estate with the court to determine whether probate is necessary. Anyone in possession of an original Will must lodge the will with the court within 10 days after the death of the decedent, even if opening a probate estate is not required.

A personal representative has many duties and responsibilities. If a probate proceeding is necessary, the personal representative must petition the court for appointment.  When the court appoints a personal representative, it issues Letters Testamentary, if there is a Will and Letters of Administration if there is no Will.  After appointment, the duties of the personal representative are:

1) Ascertain and protect the assets of the estate,

2) Notify all beneficiaries and creditors of the opening of the estate,

3) Prepare a written inventory of the estate,

4) Pay all legitimate claims.

5) Disallow any illegitimate claims.

6) Pay the decedent’s last personal taxes and estate taxes, if due,

7) Properly invest estate assets until they can be disbursed,

8) Distribute estate assets to the rightful beneficiaries,

9) Close the estate properly.

A personal representative may be held personally liable for mismanagement

of an estate.  The duties of the personal representative typically last from six months to two years depending on the complexity of the estate.  It is a good idea to seek the advice of an experienced estate and probate attorney when administering an estate.  All court costs and attorney’s fees are paid from the estate; the personal representative is not personally liable for these expenses. 

If the decedent had prepared a Will, it will be filed with the court along with other forms to begin the probate process.  The probate estate may be opened formally or informally.  If a Will was improperly executed or if there are irregularities in the Will a formal probate is necessary.  Wills that are not prepared by an attorney may be vague or improperly witnessed, which often results in a more formal court process.  In addition, if there are problems among beneficiaries or with creditors, an estate may need formal administration.    

I have seen many families destroyed during the administration of an estate because of improper acts of the personal representative and or disgruntled beneficiaries.  The goal of my office is to keep estate administration as simple and efficient as possible while keeping family discord at a minimum.  Do not let the death of a loved one destroy your family.  Seek the advice of an attorney and avoid the pitfalls of probate.  

This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C.  This information is for general informational purposes only and does not constitute legal advice.  For specific questions, you should consult a qualified attorney. Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships.  She can be contacted at:  Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO  80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com.