Managing the Estate: Personal Representatives

The first task in a probate proceeding is appointing a responsible party to manage the estate.  This person is usually called the personal representative.  In some states this position is known as the "executor." The personal representative may be an individual or a company, such as a bank.  The personal representative may have been nominated by the decedent in the will.  If there was no will, the court will usually appoint the surviving spouse or another family member.  There may be more than one personal representative named.

Inventorying the Estate

After being appointed, the personal representative is expected to document all of the decedent's assets.  This documentation is often referred to as the inventory.  The personal representative must also inform the decedent's creditors that the decedent has died.  If the decedent's probate assets are sufficient to pay the creditors, the personal representative will pay them from the estate.  If the probate assets are insufficient, the personal representative may need to obtain court approval to determine which creditors should be paid. 

Distributing the Estate

If there are any assets left after the creditors have been paid, those assets are distributed according to the will.  If there is no will, the decedent is said to have died intestate.  State laws vary as to how to distribute the assets of an intestate decedent.

The personal representative will also file any necessary tax returns.  If the estate is owed any money, the personal representative may need to bring a lawsuit in order to collect it.  If the will is contested, or if there is any other dispute over how to distribute the estate assets, the personal representative may have to "defend" the will in a probate proceeding.

Avoiding Probate Through Small Estate Administration

If the decedent owned few assets, it may be possible to avoid the probate process. In many states, a "small estate administration" is available. Usually, in order to qualify for a small estate administration, the decedent's assets must not include real estate and must be worth less than a threshold amount determined by the state. If a small estate administration is applicable, the parties who are entitled to receive the decedent's assets may collect those assets by way of an "affidavit," a sworn statement that is filed with the court. Even in a small estate proceeding, though, the decedent's creditors may need to be paid from the assets before any estate assets are distributed.