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Friday, August 21, 2020

Powers of the Personal Representative in Massachusetts

Powers of the Personal Representative in Massachusetts

by Samuel S. Reidy, Esq.

August 21, 2020

One area of confusion in Massachusetts estate planning is regarding the powers and responsibilities of an the Personal Representative of an estate (formally referred to as an Executor or Executrix).  When an individual executes his or her Last Will and Testament they have to select a Personal Representative and (often) successor personal representatives.  This is often an area of confusion for the individual finalizing his or her Will.

One of the most common questions I am asked is who should a person select as their Personal Representative.  Often times, a testator will select his or her spouse.  If the testator is unmarried or his or her spouse has already passed away, the selection may get more complicated.  The next obvious selection would be children or parent.  However, even this selection can be confusing.  Should I pick one child or parent, or should I pick two to serve together?  If I select one of my children, will I offend my other child(ren)?  Should I pick my oldest child, even though my younger child is more emotionally mature?  Should I burden my parents or children at all?  The answers to these questions vary on a case by case basis.

There are some things to always consider when selecting a personal representative.  First, is it a responsibility that the person you are selecting will be able to handle.  If your personal representative is not reliable or would be too overcome with grief to serve in the role, then perhaps there is a better selection to be made.  If your children do not get along as well as you would like, then perhaps it would be best to either not select your children (or at the very least avoid making them co-personal representatives).  There are situations where an outside personal representative may be better (such as a family friend or neutral third-party personal representative). 

The most important quality to consider when selecting a personal representative is trustworthiness.  As long as you believe that the person (or persons) you designate as your personal representative will abide as best as they can by your wishes, you have likely made the best choice that you can.  If you are hesitant about what your selection may decide to do as a personal representative or you have concerns that the power of the role may corrupt them, then it is wise to consider other possibilities.

I often receive questions about what a Personal Representative can and cannot do while the Testator is still alive.  The simple answer is that the Personal Representative has no power or authority at all until the Testator passes away.  Even if the Testator has suffered mental deterioration or is in a comatose state, the Personal Representative would have no legal authority (that is why a Revocable Durable Power of Attorney or Health Care Proxy are necessary).  Furthermore, just because the Testator has died does not mean the Personal Representative has any powers or authority.  The personal representative must petition the Court for authority, and once the Court has provided a letter of authority, that is when the Personal Representative's power and authority actually begin.  Massachusetts General Laws Chapter 190B, Article III, Section 3-701 states "The duties and powers of a personal representative commence upon appointment."  This appointment must be made by the Probate Court in the county where the descendant/testator lived at the time of his or her death.

The powers that a personal representative will have once you pass away are often listed in your Last Will and Testament.  The powers are usually quite broad and tailored to make the process as easy as possible for the personal representative.  In addition, Massachusetts General Laws Chapter 190B, Article III, Section 3-715 lays out a lengthy list of statutory powers provided to personal representatives such as the power to receive assets and to perform, compromise, or refuse performance on your contracts.

Typically the roles and responsibilities of a personal representative include probating your Last Will and Testament, collecting your assets, valuing your assets, filing your final tax returns, canceling credit cards and other accounts, preparing an inventory and accounting of the estate assets, determining and paying estate debts, and distributing and transferring the estate assets in accordance with your Last Will and Testament (or if there is no Last Will and Testament, in accordance with state law).

If you have any questions about your Last Will and Testament, estate planning, or the powers of the personal representative, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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