Question: I am 67 and am contemplating marrying my live in girlfriend of seven years. This will be a second marriage for each of us. I don’t make a lot of money and want to learn what I can. Your website has been very helpful so I hope my question isn’t too basic. But what is a “personal rep” that manages a will for someone?

Answer: No question is too basic, and we are happy to address your concerns.

If you are going through a divorce or separation or marrying or remarrying, you need a new will. As part and parcel of your will, you will have to choose someone you trust to be in charge of carrying out your post death directions set forth in your will. In some states, this person is called an “Executor” (“Executrix” if a female) or Personal Representative. No matter what they are called, this person (or entity if you choose a trust department of a bank) is a fiduciary with responsibility to the beneficiaries of your will.

At death, an individual who owns real estate, bank accounts, or personal property in his or her name will be subject to "probate" unless that property is titled jointly with a right of survivorship. If a person dies with a will, he or she is said to have died "testate." If not, he or she is said to have died "intestate."

Either way, a personal representative or fiduciary will be appointed by the court. If a person dies testate, the court will generally appoint the person named by the deceased person. If a person dies intestate, however, state law will govern who may be appointed by the court.
Probate is somewhat different in each state. If a deceased individual owned assets in more than one state, his or her representative will probably be required to open more than one estate. Probate is administered by courts that, depending on where the deceased person lived, are known as "Probate Court," "Orphans' Court" or "Surrogate Court."

If the deceased person did not have a will – and therefore did not choose a person to administer the estate -- then it is up to the court to choose a "personal representative" to administer the estate. In each state, there is a statutory list of potential administrators in an order of priority. Sometimes, potential administrators get into disputes about who should serve, and the judge will hold hearings and then decide.

If, on the other hand, the deceased person had a will and property was to pass under that will, the will must be submitted to probate. The first job of the judge of probate to determine whether the will submitted is, in fact, the last will. If it is, the judge admits the will to probate.
If the deceased person named an Executor or personal representative in the will, generally speaking, the judge will appoint that person or corporate entity to be the Executor and will give the Executor "letters" which confirm that he or she has the authority to act on behalf of the estate.

The Executor’s duties can include: Making sure the property is secure; purchasing a bond if required by the will or the court; giving notice to creditors through advertisements; making sure the estate is valued; paying federal and state estate taxes, and paying income taxes for the last year the deceased was alive; notifying heirs and beneficiaries; if there are lawsuits, making sure they are defended; getting the approval of the court for actions taken; paying debts and funeral expenses; making distributions to heirs and beneficiaries; and other acts.

All taxes and debts should be paid before the final distribution to beneficiaries and heirs is made. If taxes are not paid, the Executor can be held personally responsible and can be required to pay from his own money.

The role of the executor or personal representative is important, and only competent people should be appointed.