A friend, family member, corporate entity or bank can serve as your personal representative. The best choice for your situation depends on the people and circumstances involved. You should give careful consideration to your personal estate planning objectives and the consequences of each of the possible choices before making a selection. Actually, a testator (the person writing a will) nominates a personal representative in a will. The district judge or the clerk of court makes the appointment.
If you do not name a personal representative in your will, or if you die without writing a will, the district judge will appoint a personal representative to settle your estate. The order in which eligible persons may apply for appointment as a personal representative, if the will does not specify one, is provided in the Montana Uniform Probate Code.
The order is the following: surviving spouse who is a devisee (named in the will) of the decedent, the custodial parent of a minor decedent, other devisees of the decedent, the surviving spouse of the decedent, other heirs of the decedent, and public administrator. In performing his or her duties a personal representative must follow procedures in the Montana Uniform Probate Code.
A personal representative must be 18 or more years of age. A Montana personal representative need not be a resident of the same county or state as the deceased. For example, he or she may be a resident of Glendive and serve as a personal representative in Helena. Or, he or she may be a resident of another state, such as Wyoming, and still serve as personal representative in Montana.
Many people choose a family member or friend to be the personal representative, thinking it will be easier and cheaper for that person to settle the estate because of familiarity with it. This is not necessarily true. Most people do not share their total financial situation with friends. Even a family member may not be aware of all the intricacies of the estate. A family member or friend not working with an attorney could take longer to settle the estate and incur unnecessary expenses because he or she is unfamiliar with legal procedures and deadlines. However, if the personal representative is advised by a competent attorney, he or she should have no problems.
When a family member or friend serves as a personal representative, misunderstandings or hard feelings could arise. Certain family members may feel that the personal representative did not act impartially and was unfair in his or her actions. They may not be aware that, even if the personal representative disagrees with the provisions of the will, he or she must carry them out anyway.
Friends and family members also may be so preoccupied with their own affairs that they may not have the necessary time and attention to devote to settling an estate. And of course, the possibility exists that a family member or friend named as personal representative may die before you do. For this reason, you may want to name an alternate.
Another possibility for personal representative is a corporate entity such as a bank or trust company. Most banks and trust companies have facilities, contacts, experience, and business judgment beyond those of a single individual. In addition, banks and trust companies provide continuity. A bank or trust company doesn’t get sick, die, or move away. Usually, the bank or trust company selected to be the personal representative of an estate is the one with which the testator does business, and where he and his family are known.
An attorney can also be chosen as a personal representative. Because of professional education he or she may be more familiar with the laws pertaining to probate action, and provisions of income and estate taxes than the average citizen.
Regardless of whom you choose to be a personal representative, tell the person chosen and explain what you want done before naming him or her in the will. You may find the person selected does not wish to take on the added responsibility. If so, choose someone who is willing to assume the duties of a personal representative.