Law Office of Richard M. Russell
197 Palmer Avenue
Falmouth, Massachusetts 02540

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Serving as Personal Representative

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When a person dies leaving property (other than jointly owned property or property with effective beneficiary designations), the process that passes that property to others is the probate process. When one dies leaving a will, probate will pass the property pursuant to the will. When one dies without a will, probate will pass the property pursuant to the laws that provide for the distribution of property in the absence of a will.

Whether a person dies with our without a will, ordinarily the process of distributing the person’s property is commenced by submitting a petition to the Probate Court, requesting that the court appoint a Personal Representative to distribute the property (either pursuant to the will or, in the absence of a will, pursuant to the rules that apply in the absence of a will).

The following discussed some of the responsibilities of a Personal Representative:

Responsibilities of Personal Representative: A personal representative is charged with identifying and collecting estate assets, protecting|preserving estate assets, paying proper creditor claims (including claims of taxing authorities), paying expenses of administration, and distributing the balance to those entitled. A personal representative may employ and compensate professionals to assist in satisfying these responsibilities and pay other expenses properly incurred in administering an estate.

Collecting Estate Assets: Collecting assets involves identifying all estate assets; taking possession of those assets (in the name of the estate); and, where necessary, taking action to recover assets (including bringing suit to recover assets).

Protecting Estate Assets: As estate assets are assembled, proper insurances should be maintained or obtained. Massachusetts General Laws, ch. 190B, §3-715(a)(15), provides: “a personal representative . . . acting reasonably for the benefit of the interested persons, may properly . . . insure the assets of the estate against damage, loss and liability and the personal representative against liability as to third persons . . .”

Protecting assets includes avoiding foreseeable losses in value, particularly, but not exclusively, losses in value of securities: converting speculative assets to less risky alternatives is generally considered appropriate. If the cash is to be invested, some investments traditionally considered appropriate for estate fiduciaries are savings bank accounts, accounts in cooperative banks, accounts of federal savings and loan associations, certificates of deposit, U.S. Treasury bills and notes, and short-term U.S. Treasury and government agency bonds. Money market funds are not insured and are not necessarily considered safe investments. Estate distributions generally are to be made near the anniversary of the date of death, so it would not be appropriate to place assets in time deposits (or the like) that would commit the assets well beyond the anniversary date.

Inventory: A personal representative is to prepare an inventory of the probate property owned by the decedent at the time of death. M.G.L. ch. 190B, §3-706(a). The inventory must be prepared within three months of appointment, M.G.L. ch. 190B, §3-706(a)(b), and a copy of the inventory must be mailed to all interested persons whose addresses are reasonably available. M.G.L. ch. 190B, §3-706(c). The inventory must describe each asset in reasonable detail and indicate the fair market value of each asset as of the date of death. M.G.L. ch. 190B, §3-706.

Payment of Creditor Claims: Ordinarily it is not proper to pay creditor claims before six months from the date of death. Ordinarily significant, questionable, or disputed claims should be paid only after consultation with counsel.

Distribution of Estate Assets: Ordinarily, at approximately (but not before) the anniversary of the date of death, assets that remain after the payment of creditor claims and expenses of administration are to be distributed. In significant estates, sometimes it is convenient to distribute--before the anniversary date--assets that would otherwise incur storage and|or insurance expenses. 

In some contexts interest on distributions begins to accrue on the day after the one-year anniversary of the date of death. M.G.L. ch. 190B §3-904. Special attention should be given if this provision applies.

Accounting and Closing the Estate: A personal representative is not required to do anything after the estate has been completely distributed, however taking no action is risky. Short of taking no action, two alternate procedures exist:

Closing Statement: A personal representative may, no sooner than six months after the date of appointment, file a verified statement that the personal representative has (one) fully administered the estate, (two) furnished an account of estate activities to recipients of the estate, and (three) sent a copy of the verified statement to all interested parties. M. G.L. ch. 190B, §3-1003(a). After one year from the filing of the closing statement, the closing statement may not be challenged except for fraud or manifest error. M.G.L. ch. 190B, §3-1003(b).

Order of Complete Settlement: A personal representative may petition for an order of complete settlement of an estate. M.G.L. ch. 190B, §3-1001. The petition requests that the court approve the acts of the personal representative. A decree and order for complete settlement discharges the personal representative from further claim or demand of any interested person. M.G.L. ch. 190B, §3-1001(b).

Record Keeping: A personal representative should keep accurate records of all estate transactions, including assets, receipts, and payments, and accurate records of his or her activities as personal representative and the time spent engaged in those activities.