The person you name as your Personal Representative, the term South Carolina has used in place of executor or executrix since 1987, will be accountable for a number of important tasks–even in managing the administration of a small estate. This will include filing tax returns, keeping meticulous records, and distributing assets to your beneficiaries.
At the same time, there are rules about what the person in this role is not permitted to do.
What Is a Personal Representative?
A personal representative is a person you choose to administer your estate upon your death. When you have passed away, the personal representative, assuming they agree to take on this role and can do so, presents your will to the court. The personal representative then asks the court to appoint them based on your nomination in the will.
In South Carolina, the personal representative must be at least 18 years of age and of sound mind. Once the Probate Court has issued Certificates of Appointment, the personal representative may then begin to manage the estate affairs. The goal is to wrap up the estate in an orderly manner. The responsibilities include:
- identifying what assets and property are part of the estate
- determining what debts need to be addressed
- honoring the wishes expressed by the decedent in their will (to the extent possible)
- filing any income tax and estate tax returns that may be needed
- and much more.
Appoint a Capable and Responsible Person
Serving as a personal representative is a serious undertaking. When you are preparing a will, it is important to choose someone you know you can trust, who is reliable, and who will take their role seriously. It is also essential they are capable, so their financial sophistication and ability to understand complex issues matter.
As part of this decision-making process, you may consider the things they would be prohibited from doing as well.
What a Personal Representative Cannot (And Should Not) Do
In general, a personal representative may not engage in bad acts or abuse their role. So, for example, they cannot refuse to probate a will if they agree to take on this responsibility. They also cannot steal from the estate or mishandle estate property.
A personal representative cannot take money from bank accounts and use them for personal needs, transfer property for less than market value, pocket money they are collecting from rental properties that are part of an estate, and much more. Absent unusual circumstances, this is considered stealing.
If they steal from an estate, a court can remove them from their position and deem them liable to return the stolen funds. Those who abuse their role in such ways may find themselves being sued by beneficiaries and dealing with other legal worries.
However, in most situations, personal representatives are allowed to receive a “commission” or fee for their services. In South Carolina, a personal representative is eligible to collect a commission of 5 percent of the estate’s value.
They may also be reimbursed for any reasonable and necessary expenses they need to take on in carrying out their role. They have to go about collecting these amounts appropriately, which usually requires some court oversight and approval.
In addition, there are some exceptions for use of estate property by a personal representative. In many situations, such as where a parent leaves a home to their child, that child is also serving as personal representative. A will typically provides that living in the house is permissible in such a situation. A will may also have additional language that permits certain “self-dealing” by a personal representative.
Personal representatives are also expected to honor what is set forth in a will unless it is not feasible. So, they cannot arbitrarily refuse to carry out the wishes of the individual who appointed them to the role, refuse to acknowledge beneficiaries, or refuse to wrap up an estate.
However, as with most things, there are exceptions. For example, suppose a will provides for something that is illegal, against public policy, or simply not possible (i.e., gifting of funds that do not exist). In that case, a personal representative understandably cannot carry out such provisions.
A personal representative cannot fail to maintain good records. In managing an estate for the benefit of others, they are supposed to keep records of all expenditures and transactions. They will also be expected to make this information reasonably available to beneficiaries, the court, and other parties with a vested interest in the estate.
There are many other examples of things a personal representative cannot do. Because every estate and will are unique, it is best to speak with an experienced probate attorney. Lexington, South Carolina attorney Kevin T. Hardy can help alleviate any concerns you may have about what a personal representative may or may not be able to do. Schedule an appointment with Kevin Hardy by clicking here.