One of the most important and vital decisions made when crafting an estate plan is deciding whom you will nominate to act in the role of Personal Representative. The Personal Representative’s role handles the management, preservation, and distribution of the Decedent’s estate (assets) to the designated beneficiaries named in an estate plan. This role is filled with financial responsibilities. The person chosen and nominated as Personal Representative in the Will and/or Trust should be someone that you trust unequivocally.
The appointment of a Personal Representative for a Decedent’s estate is governed by statutory authority. The statutes outline the priority for appointment as Personal Representative and the determination of testacy (Decedent had a Will), along with the rights of a surviving spouse. The typical questions to consider include the following:
- Did the decedent leave a Will? If so, where is the original of the Will?
- Who is nominated as Personal Representative in the Will?
- Is the nominated Personal Representative willing and able to serve in the role?
- Who are the heirs of the estate? Is there a surviving spouse or children?
Priority and Qualification to Be Personal Representative
The order for priority for appointment as Personal Representative is outlined in Minn. Stat. § 524.3-203(a) as follows:
- The person nominated and willing to serve under a Decedent’s Will.
- The surviving spouse of a Decedent who is also a devisee (receiving a disposition of the real or personal property of the Estate under the Will).
- Other devisees of the Decedent.
- The surviving spouse of a Decedent (if not a devisee under the Will).
- Other heirs of the Decedent.
- 45 days after the death of a Decedent, any creditor.
- 90 days after the date of death of the Decedent, any conservator of the Decedent who has not been discharged.
If an individual seeking appointment as Personal Representative does not have priority over all the other(s) under the above priority of appointment statute, then those having higher priority must renounce their rights to nominate and serve. In addition, when individuals (such as children of a Decedent) have equal priority, those who do not renounce must concur in nominating another to act for them when applying for appointment.
Removal of a Personal Representative
In certain instances, there may be a valid reason where you would object to the appointment of a Personal Representative or determine that the removal of a Personal Representative would simply be in the best interests of the Estate. This is completed by filing a Petition for Removal of the Personal Representative for cause. Plausible causes for removal of a Personal Representative are outlined under Minn. Stat. § 524.3-611 and here are a few examples:
- Intentional misrepresentation of facts in the Petition for Appointment as Personal Representative
- Disregarding an order of the Court
- Becoming “incapable” of performing the duties of a Personal Representative
- Mismanaging the Estate
The role of a Personal Representative, as stated earlier, is one involving a financial responsibility to the Estate and holds an entrusted duty to act in the best interests of the Estate. Working with an attorney that specializes in probate law is extremely beneficial to a Personal Representative’s role.