Choosing Your Personal Representative

August 11, 2010

One of the most important tasks in preparing your estate is choosing who will fulfill the responsibilities of carrying out the closure of your assets and liabilities.  Once appointed, your personal representative (or “agent”) will have the fiduciary duty to act in your estate’s best interests.  Violation of this or other duties could result in personal liability against your agent.  Therefore, be sure to make your selection wisely, be it a close family member, friend, or corporate entity.

States have differing minimum requirements for qualifying personal representatives.  For example, Maryland disqualifies persons who are minors, mentally incompetent, convicted of a serious crime, or non-residents without a resident agent.  Non-U.S. citizens and judges may also be disqualified, with listed exceptions.

Virginia instead requires that the court or clerk must be satisfied that the representative is “suitable and competent”.  Virginia automatically disqualifies persons including felons still in prison, minors, and those who cannot obtain a surety bond if required.  Nonresidents may qualify if they obtain a surety bond.

See MD Estates and Trusts Code § 5-105 and VA Code § 64.1-118 for further detail.

Beyond these statutory requirements, here are some other factors you might consider when choosing your executor or trustee:

  • Availability – Is your representative located close by?  Will it be convenient for your choice to fulfill all duties?  Does your representative even want the responsibility?
  • Competence — Does your choice have the ability to handle the oversight and dispensing of your estate?  Would your agent have the humility to admit the need to delegate a duty to outside professionals?
  • Rationality — Can the agent place your stated goals first?  Can she keep a level head while fulfilling the conflicting requirements of your family, the court, financial and insurance institutions, etc.?
  • Reliability – Is your representative likely to perform all the requirements?  If you choose an organization, does it have a long history of stability?
  • Fairness – Will your representative act fairly if issues come up?  Will the beneficiaries respect the representative’s thought processes and decisions?
(1) Under the age of 18 years;
(2) Mentally incompetent;
(3) Convicted of a serious crime;
(4) Not a citizen of the United States unless the person is a permanent resident of the United States and is:
(i) The spouse of the decedent;
(ii) An ancestor of the decedent;
(iii) A descendant of the decedent; or
(iv) A sibling of the decedent;
(5) A full-time judge of a court established under the laws of Maryland or the United States including, a judge of an orphans’ or probate court, or a clerk of court, or a register, unless the person is the surviving spouse or is related to the decedent within the third degree; or
(6) A nonresident of the State, unless there shall be on file with the register an irrevocable designation by the nonresident of an appropriate person who resides in the State on whom service of process may be made in the same manner and with the effect as if it were served personally in the State on the nonresident.
 Choosing Your Personal Representative

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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2 Responses to Choosing Your Personal Representative

  1. Steve
    August 15, 2010 at 2:47 pm

    My mother wants to make sure that her money and belongings will be given to my sister and I when she passes. What should she do besides setting up a will? What is a trust and does she need one?

    • Scott
      August 16, 2010 at 1:10 pm

      Steve–

      Thank you for reading my blog and for posting your question!

      A trust is a document created by a person, the settlor, to have one person, the trustee, manage specific property for another, the beneficiary. Several different kinds of trusts exist for differing reasons. Without knowing more facts about your mother’s situation and needs, it is hard to say whether or not one is required in her case. This will depend on what her assets are, whether her estate will need to be taxed, whether she has a will, etc.

      For example, if your mother is married, most states’ laws will not allow her to give her children all of her assets without her husband electing to consent to this arrangement. If she is not, then she could potentially leave all of her assets to you and your sister through a will without the complications of a trust and subject to your mother’s situation.

      Feel free to contact me if I can clarify any further. However, remember that I am licensed only in Virginia and Maryland and cannot give specific legal advice in any other state.

      Take care,
      Scott

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