As a general rule, if your estate includes any solely-owned property, it likely will need to go through a specific estate administration process under state law. The personal representative of your estate is the person appointed by the court to handle that process, whether or not probate is required.
Maryland statutes determine who can serve as the personal representative of your estate. The law establishes a priority order of classes of persons entitled to apply for letters of administration, which authorize an individual to administer an estate. The highest order of priority is a person named in a Will. If you name an executor in your Will, that person has preference for serving as your personal representative.
If you die without a will or do not designate an executor in your Will, the Orphans’ Court will follow the statutory order in designating the representative for your estate. That means a person you would not wish to handle your property may end up administering your estate. For that reason, it is extremely important to make a Will and designate an executor to serve as the personal representative for your estate.
An individual, trust company, or corporation may be a personal representative. To be eligible to serve as a representative, a person must be at least 18 years of age and mentally competent. Someone convicted of a serious crime is not eligible, unless good cause is shown for permitting them to serve. A person who is not a U.S. citizen cannot serve unless that person is a permanent U.S. resident and also is the decedent’s spouse or a specified relative.
A person who does not reside in the State of Maryland may only be the personal representative of an estate if that person designates a Maryland resident as agent for purposes of service of process. Judges are not permitted to serve as a personal representative, unless the judge is the spouse of or related to the decedent in a specific manner.
An executor named in a Will does not automatically have authority to act as the personal representative for your estate or have any authority over your property. To gain the authority to act as your estate’s representative, your executor must apply and receive letters of administration. In most situations in Montgomery County, the Register of Wills, acting under the supervision of the Orphans’ Court, issues the letters of administration.
When a person receives letters of administration as the personal representative for an estate, Maryland law imposes substantial fiduciary duties on the person. The position is not simply a title or an effortless administrative role — it carries significant legal responsibilities. Failure to perform as the law requires can subject the personal representative to liability. For that reason, a representative often retains an experienced Maryland probate and estate administration attorney to ensure that the process complies with all the detailed legal requirements.
The first duty of the personal representative is to identify, collect, and protect all the assets of the estate. They then prepare an inventory and assign a value to each asset and item of property.
The personal representative provides required notifications to beneficiaries and creditors of the estate. Their duties include paying all expenses, taxes, and claims against the estate. Preparation and filing tax returns is necessary. When the representative completes the process of accounting for assets and paying all the money owed from the estate, the estate property can be distributed to the beneficiaries.
Throughout the estate administration process, specific time and filing requirements must be met. The best way for a personal representative to take all the necessary steps and meet all the legal requirements is to request assistance from an estate administration lawyer even before applying for letters of administration.
Your personal representative has substantial responsibilities in administering your estate. It’s important to choose wisely when you designate the executor in your Will. Your executor should be someone you trust. That person also should be fully capable of handling the legal responsibilities of this position.
Named executors may be a beneficiary of the estate. Married individuals usually name their spouses as executor. Many unmarried people choose to name a close family member. It’s usually a good idea to name an alternate executor in your Will, in case your first preference cannot or does not wish to serve. Co-executors may not be a good idea in some situations, since a disagreement between them could cause substantial issues during estate administration.
Your estate planning attorney will help you identify the best individual to serve as personal representative of your estate, after discussing the details of your personal and financial situation. The choice of executor is extremely important, so it is critical that you weigh all the considerations before making a designation.
Attorney Henry Nash has extensive experience in estate planning and in probate and estate administration. If you wish to make a Will or estate plan, or you are an executor or personal representative of an estate, he has the right knowledge and background to address your needs.
At The Law Office of Henry Nash, we work with clients in Rockville, throughout Montgomery County, and elsewhere in Maryland. We also assist out-of-state personal representatives for Maryland estates. If you have questions about any of our services, we welcome you to call us at (301) 998-6111 or contact us through our online form.