The attorneys with Nay & Friedenberg explain the court process of being appointed personal representative of an estate.
The Personal Representative or (PR), formerly called executor, is charged with the responsibility to administer a decedent’s estate. The PR’s job includes finishing the decedent’s financial and business matters, filing the decedent’s last tax returns, and distributing the estate to the heirs.
Only a probate court can appoint a PR and give the PR the legal authority to conduct business on behalf of the estate. The court provides the PR with Letters Testamentary or Letters of Administration as the official proof of the PR’s authority.
In order for the probate court to make the appointment of a PR, the individual seeking the appointment must file a Petition for Appointment with the court. The court will review the petition to determine if the petitioner meets the qualifications to serve and if the petitioner has priority to serve as PR. When making the appointment of PR, the Judge must give preference to the following persons, in order of priority: the person nominated in the decedent’s will to be the PR; spouse or nominee of spouse; next of kin or nominee of next of kin; the Oregon Department of Human Services (if the decedent received benefits from DHS); the Department of Veterans Affairs (if the decedent was a military veteran); any other person. Lastly, if the decedent dies without any known heirs, the Oregon Department of State Lands will serve as PR. When the proposed PR does not have the highest priority, the court will want to know why persons with higher priority are unwilling or unable to serve.
The law prohibits certain people from serving as PR, no matter what their priority. Convicted felons are not per se excluded from serving as PR, but if the facts underlying the conviction give rise to a question of the individual’s trustworthiness and ability to carry out the duties as PR faithfully, then the court shall not appoint that person. For example, a conviction of identity theft would likely disqualify the individual from serving. Minors are disqualified from serving as PR. The statute also says that “an incompetent” is disqualified from serving, but does not elaborate on what exactly that means. Additionally, disbarred attorneys or attorneys who resigned from the practice of law while under investigation for disciplinary proceedings are disqualified. Lastly, a licensed funeral service practitioner is disqualified unless the decedent was a relative or the decedent was also a licensed funeral service practitioner during his lifetime.
Many times the court will require the PR to have a bond, which is an insurance policy that protects the value of the estate from the possibility of malfeasance by the PR. In order to obtain a bond, a bonding company will screen the individual’s background, including credit history, to determine the possible risk. The cost of the bond premium is determined by the individual’s risk score as well as the amount of money needing protection. In some cases, the bond companies will be unwilling to bond the individual.
In a nutshell, that is the process for being appointed as PR. While many courts do not require that PRs have attorney representation, most PRs prefer to work with an attorney to guide them through the process. Once appointed, PRs have fiduciary duties to the creditors and heirs of the estate and the attorney can best advise the PR on how to avoid problems.
Dealing with a loved one’s estate can be a difficult time for the family. An experienced probate attorney can help. Contact the Probate attorneys with the Law Offices of Nay & Friedenberg in Portland, Oregon at (503) 245-0894 to set an appointment.
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