Choosing a Personal Representative for Your Estate
You can’t take it with you—so you need to choose someone to manage it for you when you’re gone. That person is the personal representative of your estate, sometimes referred to the executor (if you had a will) or the administrator (if you didn’t). Selecting a personal representative for your estate is an important part of the estate planning process, but it’s rarely talked about.
Many people assume that they should just pick a close family member as their personal representative, and frequently, that is the best choice. For instance, it often makes sense to have your surviving spouse or adult child handle your estate—but not always. Let’s talk about what you should think about when picking a personal representative.
Important Traits for a Personal Representative
A personal representative is in charge of managing your estate throughout the probate process, which means securing your property, paying legitimate debts of the estate (including taxes), and distributing the remaining property to the people who entitled to it—under the terms of your will if you have one, or under state law if you have no valid estate plan. This is not just an honorary position. The person you choose should, ideally, have the following characteristics:
Honesty and Integrity
First and foremost, you want a personal representative who can manage the business of your estate with integrity. Most of the time, this isn’t an issue, but there are circumstances in which a personal representative mishandles or misappropriates estate assets. Not only can this result in your heirs or beneficiaries receiving less than they should, but if your personal representative is a family member, their actions can cause permanent family rifts. Some of our ideal characteristics of a personal representative are negotiable, but this one is not: choose someone you can trust.
Organization
The personal representative of an estate has a lot to manage; there may be court deadlines, important filings, and mountains of paperwork, especially if the estate is an extensive one. It helps to have a personal representative who has good organizational skills so that important tasks don’t “slip through the cracks.” For instance, failure to notify some heirs of estate proceedings could delay the administration of the estate.
Financial Knowledge
It’s not necessary that your personal representative be an accountant or financial professional, but it’s helpful if they have some basic financial literacy. After all, they will be dealing with the valuation of assets, payment of taxes and other debts, and ultimately, the distribution of estate property. Even if your chosen personal representative isn’t knowledgeable enough to manage these issues on their own, they should be able to understand the guidance of any professionals they have engaged to help them with the estate.
Communication Skills
A personal representative needs the ability to communicate clearly and effectively—with beneficiaries, attorneys, creditors of the estate, and the court. Failures of communication are some of the most common reasons for probate disputes, including allegations that the personal representative is not doing their job.
Suitability and Availability
In New Mexico, the baseline for “suitability” to serve as a personal representative is being an adult who is of sound mind—in other words, someone over the age of 18 who has not been found to be legally incapacitated by a court. That’s a pretty low bar.
“Availability” is not a legal term, and it covers multiple things. A good personal representative needs to be available in the sense of being willing to serve in that capacity. They should have not only the willingness, but the time to fulfill their duties, as well as the health and stamina. And, ideally, they should be located near the county in which the deceased last lived, so they are available to attend court hearings or meetings with attorneys or others regarding estate matters.
Unlike some states, New Mexico does not require a personal representative to be a resident of the state in order to serve. That said, it is simply much more convenient for the personal representative to live close to where the estate is being administered, especially since probate can go on for many months.
Other Considerations When Choosing a Personal Representative
While the traits of a personal representative are important, they are not the only thing to take into account. The administration of an estate is not just a legal or financial matter; it’s also a personal one. Therefore, you should consider family dynamics when choosing a personal representative. Is the person you have in mind a polarizing figure in the family? Might choosing one adult child over another reawaken sibling rivalry disputes?
This is not to say that you should decline to ask someone to serve as your personal representative because someone else might disapprove of your choice. But if you think your selection might lead to conflict within the family, you may want to choose a professional or other neutral party as your personal representative.
If you do decide to go ahead with the personal representative you were considering, make sure your loved ones know the reasoning behind your decision so they don’t misinterpret and resent your choice.
No matter whom you choose as the personal representative of your estate, they will not need to fulfill their duties without help. An experienced New Mexico probate attorney can provide important legal and practical guidance. In most cases, a probate attorney’s fees are paid out of estate funds, not by the personal representative; that’s because the services of an attorney are considered a benefit to the estate.
To learn more about choosing a personal representative for your estate, or to get help with what to do after a loved one’s death, contact the Law Offices of Dana M. Kyle to schedule a consultation.
