THE PERSONAL REPRESENTATIVE
In most cases, a Personal Representative will typically be an Executor or Administrator named in the deceased’s Will. In some cases, a court may appoint a trustee to be the Personal Representative as well.
Executor of Estate
The Personal Representative (also referred to as an Executor of a will or Executor of the estate) is the person named in the deceased’s Will to administer and distribute the estate. You can name (appoint) more than one Personal Representative to act as joint Personal Representatives, and you should always name at least one alternate person to act as your Personal Representative if the named Personal Representative(s) aren’t able or willing to act. If a Will must go through Probate, a Personal Representative will apply to the court for a Grant of Probate in order to carry out his or her duties.
Administrator of Estate
There are a number situations in which a court will appoint an Administrator, including when:
- No Personal Representative was appointed in the deceased’s Will.
- The Personal Representative(s) appointed in a Will either cannot, or will not act in that capacity.
- The deceased person left no Will.
Regarding the appointment of an Administrator by the court, first priority is generally given to the deceased’s surviving spouse or adult interdependent partner in most cases. An appointed Administrator must apply to the courts for a Grant of Administration for permission or approval to administer the estate.
In all cases where the deceased left no Will naming a Personal Representative, a court-appointed Personal Representative must apply for the appropriate “Grant of Administration” before he or she is allowed to assume the responsibilities of administering that estate. If a person were to start assuming any of those responsibilities before getting the grant, the court refers to it as intermeddling. Not good.
Generally speaking, a person cannot be forced to act as a Personal Representative, and should only do so after considering the various issues involved in being one, including:
- The potential risk of personal liability.
- Potential conflicts with family members and beneficiaries.
- Are the terms of the Will simple or complicated?
- What is the value and complexity of the assets in the Estate?
- After being appointed, a Personal Representative may renounce (cancel) the appointment, as long as he or she has not intermeddled (started before obtaining a grant).
Keep it Simple
Although there are two types of Personal Representatives (Executor and Trustee), these roles are similar. To keep things simple, we use the term Personal Representative throughout the rest of this section.
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