The Importance of Designating an Alternate Personal Representative
By: Barry E. Haimo, Esq.
September 20, 2021
When planning your estate, determining who to name as a personal representative is incredibly important. I can also be challenging. Since personal representative duties can sometimes be overwhelmingly demanding, it’s highly advisable to name an alternate personal representative in your estate plan in case your first choice isn’t up to the job.
If your estate goes through probate, your personal representative will play a major part in your estate plan. They will do everything from filing paperwork to making sure your assets are properly distributed among your designated beneficiaries. Neglecting to name a backup can create obstacles and conflict during probate and the process of settling your estate.
If you do not name an alternate personal representative, the court will be forced to find one for you. And that may cost the estate, diminishing the amount your beneficiaries receive, or worse. This is exactly what happened to Daniel Yates and his father’s estate.
An Unprepared Personal Representative
As his only son, Daniel Yates tried to visit his father in the suburbs of New York as much as possible. Walter Yates’ eyesight, hearing, and overall health were failing fast, but he always looked forward to Daniel’s visits with great anticipation. And he often bragged to his friends of Daniel’s successful Manhattan dentistry practice, his big car, his beautiful wife, and his three talented children.
When planning his estate, Walter was certain that his son would be able to carry out his last will and testament with efficiency and expertise. Mr. Yates’ health had been deteriorating, but it still came as a shock when he suddenly passed away. After speaking with his father’s doctors and lawyers, Daniel was somewhat distressed—though not too surprised— to learn his father had named him as his personal representative.
When A Representative Isn’t Up to the Task
The responsibility couldn’t have come at a worse time. Daniel had just opened up a second branch of his office in Manhattan. His oldest child was getting ready for the SATs, and Daniel was helping her study. And on top of everything else, his wife was pregnant with their fourth child.
It was with both regret and resolve that Daniel told his father’s lawyers that he wouldn’t be able to accept the position of personal representative. With no other suitable candidates named, it would fall to the court to decide a new representative as determined by statute.
The probate court assigned a stranger to the personal representative role. At first Daniel was relieved the courts had been able to appoint someone, though he wished it could have been him or someone his father had trusted. Unfortunately the appointed person proved both incompetent and dishonest.
The Consequences of Not Having an Alternate Personal Representative
Daniel’s first inkling that something was wrong came months later when he drove past his father’s suburb. The personal representative was tasked with the upkeep of Walter Yates’ large home, and it was currently a mess. Outraged, Daniel contacted the representative immediately. He apologized and promised to get a cleaning and lawn service over there as soon as possible.
Daniel started to investigate. He discovered his mother’s nursing home hadn’t been paid since Walter’s death. The representative had repeatedly told them that there were going to be some delays with the money, but that he was working on it. Daniel looked into the personal representative’s accounting and discovered all kinds of exorbitant fees that were going to the representative.
Daniel immediately contacted an estate lawyer. Together, they were able to bring a case against the representative and get him removed, but it took a lot of time and effort that Daniel just didn’t have.
Choose the Right Personal Representative with Careful Estate Planning
How can you avoid leaving your survivors with fees and complications like the ones Daniel had? Appoint both a competent personal representative and an alternate personal representative to serve in their stead if they are not up to the responsibility. When you choose your personal representatives yourself, you are able to ensure your chosen person knows you and your estate.
Consider Your Options
Close friends and family members are natural choices. But you may want to name a professional as your personal representative. A trusted lawyer is a good personal representative choice if your estate is particularly large or complex. The attorney’s experience and familiarity with probate will enable him or her to distribute your assets successfully.
When trying to decide who may be the best personal representative and alternate personal representative for your unique estate, it’s a good idea to consult with an estate planning attorney. Through careful planning, you and your attorney may be able to determine the most appropriate and competent candidates. And you can reduce the complications and fees your estate may face in the probate process.
Originally published 04/30/2015. Updated 09/20/2021
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