Personal Representatives - Who Can and Who Should be Nominated?

The Massachusetts Uniform Probate Code (“MUPC”) changed the antiquated terms of Executor and Executrix (a distinction which doesn’t pass muster for purposes of gender equality alone) to the gender neutral “Personal Representative.” The Personal Representative is a fiduciary who manages the affairs, liquidates assets, and distributes the estate to devisees. Who can, and more importantly, who should serve a Client’s Personal Representative.

Who can serve? Any person who is over eighteen years old and whose service wouldn’t be “contrary to the best interests of the estate.” M.G.L. c. 190B § 3-203(f). This is a fairly low bar. As a consequence, family members, friends, acquaintances, corporations, and even an attorney can validly be named as Personal Representative of an estate. A minor may even be named; however, that person may not serve until they reach the age of majority.

Who should the Client nominate to serve? The Client should give this decision careful consideration. First, the Client should almost always name an alternate Personal Representative should their first choice be unwilling or unable to serve. Second, the Client should consider whether they wish to nominate a single Personal Representative or more than one. If the Client wishes to name more than one Personal Representative, their decisions must be unanimous; however, the Client can designate a single Personal Representative to make decisions on particular matters-such as the sale of real estate. The obvious risk associated with multiple Personal Representatives is the chance for deadlock and disagreement between them. In my estimation, it is almost always “asking for trouble” by nominating multiple Personal Representatives to serve jointly. It is certainly difficult, for instance, to choose one child over another. It's better to bruise an ego than set up a probate court battle that could splinter a family forever.

A Personal Representative is usually an individual, though an institution can serve. Institutional service usually only makes sense in the case of a large estate or one where professional competence is important.  The Personal Representative is, by default, entitled to reasonable compensation. The Client should consider whether the Personal Representative should receive compensation or not. Something along the lines of:

It is my intention that my son, John Smith, be entitled to reasonable compensation for his services as Personal Representative.

or

It is my intention that my son, John Smith, serve as Personal Representative serve WITHOUT compensation for his services.

Compensation is often a sticking point between devisees. This is especially true if the Personal Representative is a devisee him or herself.

Finally, it almost goes without saying that the Personal Representative should be responsible, thoughtful, and  someone that the Client trusts with the important task of handling large sums of money in an efficient, honest, and transparent manner. A history of criminal activity, substance abuse, acts of immaturity or acts of imprudence counsel against their nomination.

Selecting the appropriate Personal Representative is a central consideration for many Clients. The Estate Planning Attorney should carefully probe the Client’s thought process and offer advice given past experience.

Stiles Law, with offices located in Boston and Marshfield, Massachusetts, offers estate planning services including wills, trusts, powers of attorney, guardianship nominations, and more. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, Milton, Quincy, Dorchester, Charlestown, Brookline, Dedham, Canton, Rockland, and everywhere in between..

Copyright © 2018 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts.