When creating an estate plan, people typically devote considerable attention to deciding who should inherit their assets and how the estate should be distributed, but an equally important decision involves selecting the individual who will administer your estate after your death. That person, known as your Personal Representative, will be responsible for navigating the probate process, protecting estate assets, satisfying creditors, communicating with beneficiaries, and ensuring that your final wishes are carried out. While family members and close friends often make excellent Personal Representatives, they are not the only option. In California, an attorney may also serve as your Personal Representative, provided the attorney is otherwise qualified to act in that capacity. To help you decide what is best for your estate plan, the Los Angeles at Schomer Estate & Wealth Advisors discuss when it might be best to appoint an attorney to serve as your Personal Representative.
Understanding the Role of a Personal Representative in California
California uses the term Personal Representative to describe the individual legally authorized to administer a probate estate whether they were appointed in a Last Will and Testament or appointed by a court because the decedent left behind an intestate estate. Regardless of how the individual was appointed to the role, the Personal Representative assumes significant legal responsibilities once the probate court issues Letters Testamentary or Letters of Administration. Moreover, these responsibilities often continue for many months and, in more complex estates, may last considerably longer. Among other duties, the Personal Representative is typically responsible for:
- Filing the appropriate probate petition.
- Locating and safeguarding estate assets.
- Notifying beneficiaries and interested parties.
- Preparing an inventory of estate property.
- Managing estate assets during administration.
- Paying valid debts and expenses.
- Addressing tax obligations.
- Maintaining accurate financial records.
- Distributing estate assets.
- Completing the final accounting and closing the probate estate.
Can an Attorney Serve as Your Personal Representative?
Although many people mistakenly believe that the attorney handling the probate of an estate automatically becomes the Personal Representative, that is not the case. The probate attorney represents the Personal Representative and provides legal advice throughout the administration process, but the Testator of the Will appoints the Executor/Personal Representative when the Will is executed. California law does permit an attorney to serve as your Personal Representative, but only if you intentionally nominate that attorney in your Last Will and Testament and the attorney is otherwise legally qualified to serve. In other words, serving as legal counsel and serving as the Personal Representative are two distinct roles. An attorney could also be appointed by the court to be a Personal Representative (PR) if you leave behind an intestate estate and no one volunteers to serve as your PR. If an attorney does act as your Personal Representative, they assume all the same fiduciary duties imposed upon any other Personal Representative while also bringing legal knowledge and probate experience to the administration process.
What Fiduciary Duties Does an Attorney Owe?
Whether your Personal Representative is an attorney, accountant, family member, or trusted friend, California law imposes fiduciary obligations requiring that individual to act solely in the best interests of the estate and its beneficiaries. Failing to satisfy these fiduciary duties may expose the Personal Representative to personal liability. Serving as a fiduciary requires the highest degree of honesty, loyalty, and care recognized by law and requires the individual to:
- Act in good faith.
- Preserve estate assets.
- Avoid conflicts of interest.
- Follow the terms of your Last Will and Testament.
- Comply with California probate law.
- Treat beneficiaries fairly.
- Maintain accurate financial records.
- Exercise prudent judgment when managing estate property.
Because attorneys regularly work within fiduciary relationships, many possess substantial experience complying with these legal obligations. In addition, their familiarity with probate procedures and fiduciary standards often reduces the likelihood of administrative mistakes that could delay estate administration or expose the estate to unnecessary expense.
When Might an Attorney Be a Good Choice?
Although every estate is different, appointing an attorney as your Personal Representative may be appropriate under several circumstances. For example, your estate may include closely held business interests, valuable real estate holdings, investment portfolios, rental properties, intellectual property, or assets located in multiple states, presenting legal issues extending well beyond routine probate administration. Likewise, an attorney may be an appropriate choice if you anticipate disagreements among beneficiaries. Blended families, strained sibling relationships, second marriages, or unequal inheritances sometimes create tension following a person’s death. A neutral professional may be better positioned to administer the estate objectively without becoming involved in longstanding family conflicts. Finally, an attorney may be the best choice when no suitable family member is available. Perhaps your children live throughout the country, have demanding careers, or simply do not wish to assume the responsibilities associated with probate administration. Rather than placing an unwanted burden on a loved one, appointing an experienced attorney may provide a practical alternative.
Advantages of Choosing an Attorney as Your Personal Representative
One of the primary benefits of selecting an attorney as your Personal Representative is professional experience. Probate administration involves numerous procedural requirements, statutory deadlines, court filings, creditor issues, tax considerations, and asset transfers, and an attorney who regularly practices in probate administration understands these legal requirements and can often anticipate issues before they develop into costly problems. Professional objectivity represents another important advantage because an attorney approaches estate administration from a professional perspective, making decisions based upon legal obligations rather than family pressure or personal preferences. Conversely, family members serving as Personal Representatives frequently must balance legal responsibilities with emotional relationships.
Are There Any Disadvantages to Naming an Attorney?
Although appointing an attorney as your Personal Representative offers many advantages, it is not necessarily the right choice for every estate. Given that California law permits Personal Representatives to receive statutory compensation for administering an estate, the cost of appointing an attorney may be a consideration. If the attorney also serves as legal counsel for the estate, separate attorney’s fees may also be authorized under California probate law unless the attorney waives one form of compensation or another arrangement is approved. Before naming an attorney, you should discuss how compensation will be handled so your expectations are clear. Another disadvantage can be more personal in nature given that serving as Personal Representative is often viewed as a final opportunity to honor the Testator’s wishes by family members. Appointing an attorney instead of a family member can add emotional conflict to an already stressful time.
Should You Appoint a Family Member and an Attorney Together?
In some cases, the best solution combines the strengths of both a trusted family member and an experienced probate attorney. In this arrangement, you nominate a family member to serve as your Personal Representative while authorizing that individual to retain legal counsel throughout the probate process. Your family member will have the authority to make important decisions regarding the administration of the estate while the attorney provides guidance concerning probate procedures, court filings, creditor claims, tax matters, real estate transfers, and other legal issues. This approach allows your loved ones to remain actively involved without expecting them to become experts in California probate law. It also reduces the likelihood that well-intentioned mistakes will delay estate administration or expose the Personal Representative to unnecessary liability.
Do You Have Questions About Appointing an Attorney as Your Personal Representative?
For more information, please join us for an upcoming FREE seminar. If you have additional questions about appointing an attorney as your Personal Representative in your California estate plan, contact the experienced Los Angeles estate planning attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
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