The Basics of Serving as a Personal Representative

Personal representatives handle the estates of deceased persons. As defined by section 30.1-18-03 of the North Dakota Century Code, they have a fiduciary duty to administer the estate according to the terms of the will or laws of probate. They have the legal power to collect the assets of the estate, pay off the debts and taxes owed, and then distribute the remainder of the assets to the beneficiaries.

North Dakota law specifies the priority for appointing a personal representative in section 30.1-13-03 of the Century Code:document-428334_1920

  • The person nominated in a will;
  • Surviving spouse entitled to receive property under the will;
  • Other people entitled to receive property under the will;
  • Surviving spouse;
  • Other heirs;
  • A trust company;
  • Or any creditor of the estate (45 days after the death of the decedent).

I Have Been Named a Personal Representative in a Will, Now What?

First, the court must actually appoint you as the personal representative. A nomination in a will is not automatically granted, but as long as you meet basic qualifications, such as the minimum age of 18, the probate court will likely confirm your appointment.

As a personal representative, you will earn “reasonable compensation” for carrying out the duties associated with the appointment. But you are also personally liable for any violation of your fiduciary duties. There are strict timelines involved, and legal obligations to take care of. Failure to adhere to the legislated deadlines, or improper handling of assets, for example, may open you to lawsuits by the beneficiaries. Although North Dakota does not require in-state residency for a personal representative, many out-of-state residents find that the administration of an estate is quite difficult and time-consuming. Other practical considerations may also affect an individual’s ability to faithfully and fully carry out a will. If these factors—or any other factors—are of concern to you, you can decline your appointment as a personal representative, and the court will appoint another party instead.

Due to these considerations, some people choose to designate banks or trust companies as personal representatives in their wills. Furthermore, individuals who have been appointed as a personal representative may choose to hire an attorney to aid them in the settling of the estate.

A personal representative will be responsible for many things, including:

  • Notifying the heirs of the estate;
  • Listing the property owned by the estate;
  • Contacting the known creditors of the estate;
  • Paying valid claims against the estate, including:
    • Costs and expenses related to administration of the estate;
    • Funeral expenses;
    • Taxes of the estate;
    • Medical expenses for the final illness of the decedent;
    • And unpaid child support;
  • Distributing the remaining assets to the heirs.

North Dakota has adopted the Uniform Probate Code in an effort to simplify and modernize the laws controlling wills and intestacy. Therefore, some estates can be handled through informal administration by a personal representative without any legal training or aid. More complex estates and situations, however, may require a lawyer familiar with probate law to help walk you through the process and ensure that you fulfill your legal obligations. Contact an estate planning lawyer at O’Keeffe O’Brien Lyson Foss or call 701-235-8000 or 877-235-8002 (toll free) to discuss your situation.

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