Personal Representative And Administrator
A personal representative (“PR”), sometimes referred to as an executor, is a person appointed by a testator to serve as a personal representative on the testator’s death.
An administrator is a person appointed by a court to serve as a personal representative for a person who died intestate, who made a will but failed to name an executor, or whose executor cannot serve.
Duty To Carry Out The Purpose. If you are asked to serve as a PR, or if you are appointed by a will or trust, you always have the right to decline. However, once you accept the appointment, your job is to carry out the terms of the will or trust.
Your duties and responsibilities as a PR are governed by the terms of the instrument under which you are acting, for example, the will or the trust. If there is no governing document, such as a will or trust, or the controlling document is silent, Washington statutes and case law often provide guidance. The attorneys and paralegals at Puget Sound Probates are knowledgeable and experienced in this area and can provide you with advice and assistance.
As a PR, you must follow any specific instructions in the governing document. Even with the best possible motives, you cannot substitute your judgment for those explicit directions. Sometimes the document or the law may give you wide discretion. In that instance your duty is to exercise that discretion in a manner that will carry out the terms of the will or trust.
Duty To Be Prudent. Your acts as a fiduciary will normally be judged by comparison to what a “prudent person” would have done in the same circumstances. This does not mean that you may take the same risks with the assets under your care that you may take with your own assets. You may sometimes be less than prudent in the management of your own affairs: you might allow a check payable to you to remain on your desk for several weeks, earning no interest, or you might allow your own deposit at a bank to exceed the FDIC insurance levels. However, if you accept appointment as a PR, you do not have the luxury of lapses like these.
If you do take an imprudent risk and the beneficiary is damaged as a result, you, as a PR, will be personally responsible for repaying any loss out of your own pocket. What is more, in extreme cases you could also be found to be criminally at fault.
Duty To Identify And Collect Property. As a PR, you must actively take steps to determine the nature and extent of the assets under your control. In some instances, this is easy. In other instances, this duty is more time-consuming and even burdensome. You may need to search the house, search any safe deposit box, and review tax returns and records to identify all the assets belonging to the decedent. Once you have identified the assets for which you are responsible, you must take whatever steps are necessary to place the assets under your exclusive legal control. If your rights to the property are disputed, you may need to bring a lawsuit to establish your right to control. As the assets are identified, you should list them and prepare an inventory.
Duty To Protect Property. Although you must identify and take possession of the assets involved, you MUST NOT combine (or “comingle”) the assets with your own personal assets. Commingling assets can quickly muddy the water as to which assets belong to whom and might enable your own personal creditors to have access to the decedents property. As a result, you should never, for any reason, deposit the decedents funds in your own bank account or take title to assets simply in your own name without any indication of the relationship. Likewise, if you are a trustee for several trusts or estates, you normally should not combine the assets of one with another.
There’s no need to engage a probate lawyer with non probate assets or misusing the PR title. What, then, should you do with the property you control as PR? Assets are to be earmarked as clearly as possible to indicate that you exercise legal control over them but that the property does not belong to you. For example: “Your Name, Executor of the Estate of John Q. Deceased.”