In our last post I discussed the type of person who would make a good executor or executrix. Sometimes, however, the Court has to appoint a person to be a decedent’s Personal Representative – if there is no Will, or if the Will was improperly prepared, or if it is lost or even if no one knows that one exists. When this happens the decedent is referred to as dying “intestate.” All that phrase means is that the decedent did not have a valid Will at the time of death.
There is not always the need to appoint a Personal Representative to probate the decedent’s estate, even if the decedent had no Will at the time of death. Whether a Personal Representative is needed depends on the kinds of assets that exist since certain assets do not need to be probated. For example, a house that is held by a husband and a wife as tenants by the entireties goes directly to the survivor without probate. Similarly, a life insurance policy leaving the proceeds to a named, living beneficiary goes directly to that person, without the Register of Wills office getting involved in the transaction. We will discuss the issues surrounding probate and non-probate assets more in later posts.
However, if at death, there is no valid Will but there are assets that do not go directly to a named person, or if there is a Will but the named Personal Representative is not willing or able to serve, then in order to distribute the decedent’s assets to the family, someone needs to be appointed as the decedent’s Personal Representative. Similarly, if there is a need to bring a lawsuit on behalf of the decedent, someone has to be appointed to serve as the Personal Representative if there is no valid Will. This person, appointed by the Court is referred to as the “administrator” or “administratrix.”
Continue Reading ›