Idaho Law Blog
By Lane V. Erickson, Idaho Estate Planning Attorney
Over the past 22 years while practicing as an estate planning and probate attorney I’ve seen and heard just about everything you can imagine when it comes to estate plans, probates, family interactions, family fights, and distributions from an estate. One of the rare things that comes up every once in a while, is that a person who was appointed through a last will and testament to be a personal representative doesn’t want to do it.
A personal representative is the individual who is named in a written will who will be in charge of the estate when a person passes away. This person has the duty and responsibility of protecting and preserving all the assets in the estate of the deceased person. The personal representative also has a duty to make sure that all legitimate debts and expenses of the decedent are paid. Finally, the personal representative has a responsibility of distributing the estate exactly how the deceased person instructed in their written Will.
As you can see from this short description of what a personal representative is responsible for, holding this position is a big job. Because of this, sometimes, people do not want to do it. This is completely understandable.
When I work with a person to create their customized estate plan, one of the things I tell them is that no one can be forced to do what they are asked to do in an estate plan. In other words, if you nominate someone to be your personal representative, that person can refuse. Because of this, I usually make several recommendations to my clients when it comes to creating their estate plan, including nominating who they want as their personal representative.
The first thing that I recommend is that they choose someone that they believe is both capable and able to act as a personal representative. The word “capable” means that the person has the capacity or the experience or the intelligence to carry out the responsibilities a personal representative is required to accomplish. There are some people who are simply not capable of doing this. The word “able” means that they have the ability because of their time, circumstances, and so forth to carry out the responsibilities. You can have someone who is capable of being a personal representative, but they are simply not able to do it because of their circumstances.
For example, you may have a daughter who is extremely smart and would have no trouble carrying out the responsibilities of being a personal representative. She is “capable” of doing it. However, that daughter may have five children who are under the age of eight who require all of her focus and attention. Because of this she may not be “able” to be the personal representative.
One of the ways you can make sure you have someone who is both capable and able to serve as your personal representative when you die is to name several people. In other words, you name your first choice, and then you name one or two successors who can step in if the first person you choose can’t or won’t do it.
This is one of the basic suggestions we provide the people as we are helping them create their own customized estate plan. This is all so easy to see on the Estate Planning Questionnaire we provide the individuals to help them get started with their plan. The questionnaire gives you the ability to identify people that you want to do things for you and list alternate individuals if the first person you choose is not available.
If you have questions about your own current estate plan, or you would like to create an estate plan on your own, we encourage you to fill out the Questionnaire. We then offer a free 30-minute consultation to review your questionnaire and help you understand the options you have available to you for your own customized estate plan. We have helped numerous individuals create their own plan and we are confident we can help you too! Call us today.
ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU
If you have any questions about your estate or how to simplify your plans for your family and loved ones, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Pocatello. You can also email Lane Erickson directly at lane@racineolson.com. We will answer your questions and will help you solve your Pocatello estate planning problems. I have helped numerous clients create their own customized estate plans and I am confident that I can help you too.