A Will Consideration: the Personal Representative

The role of the personal representative is to step into the shoes of the deceased – Judge Frank Simon

For those of you who have a will, the term personal representative is a familiar one.  For those of you who do not have a will, in contemplating one, become familiar with the important role of a personal representative and choose your personal representative after careful consideration.  For those of you who have been asked to be a personal representative, you need to be familiar with what the role entails before accepting the duty.

When a person dies, the designated personal representative’s duties come into full force.  However, before a person dies, he/she should explain to the personal representative the general obligations the personal representative will be asked to perform; and, at the same time, the personal representative should take the initiative to engage the testator in a detailed conversation regarding his/her duties and the specifics of the estate and assets.

A personal representative does not take on his/her legal powers as personal representative until appointment by the court as the personal representative.  However, prior to official appointment, the personal representative will need to locate the original will, file the original will, and secure any property or assets of the deceased.

The personal representative’s duties include such legal obligations as securing, inventorying and valuing all the decedent’s assets, using these assets to pay off all the decedent’s legitimate debts, filing and paying the decedent’s taxes, both income and estate, and then distributing the remaining estate assets according to the decedent’s will or state law. Failure to perform these duties appropriately can subject the personal representative to fines as well as personal liability for unpaid debts of the deceased.  As you can imagine, all of this is not accomplished quickly; in fact, from open to close of the estate, the personal representative performs his/her duties for a period extending anywhere from eight to eighteen + months.

And, in case you are wondering by this point – no, a personal representative does not work for freeunless he/she chooses to waive the statutory compensation fee or the compensation amount provided for in the will (a written renunciation of the fee may be filed with the court).  Unless a contract or the will provides otherwise, a personal representative receives compensation according to South Carolina’s statutory provisions.

Section 62-3-719 of the South Carolina Code addresses compensation of a personal representative.  As compensation for performing his/her duties, a personal representative is entitled to receive funds not to exceed five percent (5%) of the appraised value of the personal property of the probate estate plus the sales proceeds of real property of the probate estate. (The minimum commission payable is fifty dollars ($50.00), regardless of the value of the personal property of the estate.)  And, a personal representative may receive not more than five percent (5%) of the income earned by the probate estate in which he/she acts as fiduciary.

Ultimately, if you need a will drafted, to the many things you should think long and hard about, add the choice of a personal representative to the top of the list.  On the flip side, if you have been asked to perform the role of a personal representative, think long and hard, too.