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5 Questions for Appointing Your Personal Representative

At the Racine Law Office our premier team of Idaho estate planning attorneys has assisted numerous clients in completing their estate plans for over 70 years. We recognize and understand the numerous decisions that have to be made as part of estate planning particularly when it comes to the naming of individuals who will help carry out your wishes and instructions. The person you name as your personal representative can have a huge impact on the distribution of your assets, the carrying out of your instructions, and how your family and other loved ones feel about the distributions that are made to them from your estate after you pass away. Because of this, choosing the right person to be your personal representative is very important.

The team of premier Idaho estate planning lawyers at the Racine office includes partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys consistently receive high ratings from other attorneys, the judges that we work with, and most importantly the clients that we serve. Rather than using a cookie cutter approach, our goal is to determine the specific needs of each individual so that their estate plan can be customized to meet those needs. To do so, we consider several things including family members involved, assets that are owned, and most importantly the appointments that need to be made in the estate plan itself.

One of the most important appointments that is made in an estate plan is that of a personal representative. The person that is chosen will have a huge impact on the performance of your estate plan. Because of this here are five questions that you should consider when it comes to choosing your personal representative.

1. What is a Personal Representative?

The first question that you should consider is what exactly a personal representative is and what it is they do. The personal representative is the individual you have named in your last will and testament who will have the authority given to them to carry out the instructions you leave. They have the responsibility of protecting and preserving the assets, money, and property in your estate, and to deal with your creditors in paying your bills. Additionally, your personal representative will be tasked with the responsibility of making the final distributions from your estate to whoever it is you have listed as beneficiaries in your last will and testament.

The term used in Idaho for the person who is appointed in a last will and testament is a personal representative. However, some people refer to this individual as the executor. These really are two names for the same person.

As part of the basic estate plan we usually recommend that a person name a primary personal representative and then name a first successor and a second successor as well. The reason for this is so the individuals you have chosen to act as your personal representative in carrying out your wishes are actually appointed. If the first person you have chosen cannot or will not serve, the responsibility then falls to the next named person.

A person is actually appointed by a court to be a personal representative. In your last will and testament you "nominate" the person who you would like the court to appoint. It is through the probate process that the appointment is actually made by the court when it enters an Order naming an individual as the personal representative. It is the order, and other legal documents signed by the court, including letters testamentary that provide the legal authority for the personal representative to act as the personal representative and to carry out the responsibilities they are given.

2. Is the Person Trustworthy?

The next most important question for you to ask yourself when considering who to name as your personal representative is whether the person you are considering is trustworthy. A personal representative will be given a good deal of responsibility and a good deal of power over the property, money, and assets of your estate. This person will also be given a good deal of responsibility in dealing with your creditors to make sure that your bills are paid. Finally, this person will be given the responsibility of transferring the property, money, and assets in your estate to the individuals you have named as your beneficiaries.

In most instances the personal representative acts without any type of supervision. This means there is no person looking over their shoulder to make sure that they are doing what they are supposed to be doing. For this reason, it is vitally important that the person you choose can be trusted to protect your property, pay your bills, and ultimately give your property to whoever you name in your last will and testament.

3. Is the Person Capable?

The next important question that you should ask yourself is whether the person is capable of being a personal representative. This means not only are they "able" but are they "available" to act as your personal representative. Consider for a moment an example of a young mother with several small children at home. This person could be smart, trustworthy, and capable, they just may not be able to serve as your personal representative because of their own circumstances.

Likewise, it may not be wise to name a person as your personal representative who is in their late elderly years. If a person you name is suffering from their own disabilities, or infirmities, they may simply be physically or mentally incapable of carrying out the responsibilities of being your personal representative. For these reasons, determining not only whether a person is capable of being a personal representative but also whether they are available to serve in this capacity is something you should consider.

4. Will They Carry Out Your Wishes?

The next question that you should ask yourself relates to the trustworthy issue which simply means will the person you've chosen actually carry out your wishes. A person could be completely trustworthy, meaning they're not going to steal from your estate for their own benefit. However, if you choose somebody who is headstrong they may think they know better than you how your estate should be distributed. This is not the role of a personal representative. Rather, the role of the personal representative is to carry out your instructions as you set them forth in your last will and testament.

Really this means two things. First it means that your instructions should be very clear in your last will and testament. Second, it means that you should choose a person that you know will actually follow the instructions that you leave for them. It really doesn't matter how capable or available or trustworthy a person is if that person simply chooses not to follow your instructions.

5. Can They Keep the Peace?

The final thing that you should consider is whether the individual you choose has the ability to keep the peace in your family. It's possible that you may decide to give your estate to your loved ones or family members in and unequal way. If this occurs, your personal representative must be strong enough in character to carry out your wishes while at the same time keep the peace among your family members as much as possible. For this reason, in some circumstances, it is sometimes better to name an individual who is not a family member as your personal representative. This is because any hard feelings that exist towards the personal representative will not carry over into family relationships.

Only you know the dynamics of your own family and loved ones. As a result, only you can decide who you believe has the character and ability to keep the peace if necessary. For this reason, understanding who has this ability and who should be named falls on your shoulders. However, you are not alone. We have assisted numerous clients in making these appointments and we are confident that we can assist you too!

Enlist an Idaho Estate Planning and Probate Attorney to Help You

Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial free consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with the Racine Olson team. You can also email us directly at racine@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.

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