Personal Representative Rights and Protections During Probate

Being named the personal representative of someone’s estate is often viewed as an honor. It means the person trusted you to handle their affairs and carry out their wishes after death.

However, the role involves much more than distributing belongings or closing bank accounts.

A personal representative may need to:

• Locate and protect estate assets
• Prepare an inventory
• Pay valid debts and expenses
• File tax returns
• Communicate with beneficiaries
• Manage or sell property
• Follow probate court procedures
• Distribute the remaining estate

The administration process may last months or, in complicated cases, years. The responsibility can feel especially difficult when family members disagree about how the estate should be handled.

Fortunately, personal representatives do not have to figure everything out alone. The law gives them authority to administer the estate. It also provides rights and protections that can help them perform their duties properly.

What Is a Personal Representative?

A personal representative is the person appointed by the probate court to administer a deceased person’s estate.

If the person left a will, the document usually nominates someone to serve. That person is sometimes called the executor.

If there is no will, the court appoints someone according to the priorities established by state law. That person is sometimes called an administrator.

Being named in a will does not, by itself, give someone authority to act. The probate court must generally appoint the person before banks and other institutions will recognize that authority.

The District of Columbia Courts define a personal representative as the person appointed by the court to administer a deceased person’s estate. The Maryland Register of Wills also explains the estate administration process and the personal representative’s role.

What Rights Does a Personal Representative Have?

A personal representative receives authority under state law, the will, and the court’s appointment.

Depending on the estate and applicable law, this authority may include the right to:

• Gather and protect estate assets
• Access financial and administrative information
• Manage estate property during probate
• Pay valid claims and administration expenses
• Sell, lease, or invest estate property
• Continue a business for a limited period
• Hire attorneys, accountants, appraisers, and other professionals
• Settle or defend claims involving the estate
• Receive reasonable compensation
• Receive reimbursement for proper estate expenses
• Ask the probate court for instructions or approval

Maryland law gives personal representatives broad administrative authority. For example, a personal representative may pay estate expenses, insure property, compromise certain claims, sell or lease property, and hire qualified professionals. These powers are described in Section 7-401 of the Maryland Estates and Trusts Code.

These rights are not unlimited. Every action must comply with the will, applicable law, court orders, and the personal representative’s fiduciary duties.

What Is a Personal Representative’s Fiduciary Duty?

A personal representative is a fiduciary. This means the representative must put the proper administration of the estate ahead of personal interests.

The personal representative must generally:

• Act honestly and in good faith
• Protect estate property
• Follow the will and applicable law
• Avoid improper self-dealing
• Treat similarly situated beneficiaries fairly
• Keep accurate financial records
• Pay valid expenses and claims
• Make distributions to the correct people
• Complete required court filings

A personal representative does not have to follow every beneficiary’s instructions. However, the representative must act for a proper estate purpose and be prepared to explain important decisions.

Who Else Has Rights During Probate?

The personal representative is not the only person with legal rights during estate administration.

Beneficiaries’ Rights

Beneficiaries may have the right to:

• Receive the inheritance left to them
• Be treated fairly under the will
• Receive required notices and accountings
• Obtain reasonable information about the estate
• Object to improper actions
• Ask the court to review the personal representative’s conduct

A beneficiary does not ordinarily have the right to take estate property or direct every administrative decision.

Creditors’ Rights

Creditors may have the right to:

• Receive required notice
• Submit claims against the estate
• Challenge the rejection of a claim
• Receive payment according to the legal order of priority

Valid estate expenses and creditor claims may need to be paid before beneficiaries receive their inheritances. The Maryland Register of Wills lists the order in which estate expenses and debts must be paid.

The Probate Court’s Authority

The probate court may:

• Appoint the personal representative
• Review required filings and accountings
• Resolve disputes
• Approve certain transactions
• Order the representative to take or stop an action
• Reduce or deny compensation
• Remove a personal representative who violates their duties

These overlapping rights can create tension. Understanding where the boundaries lie can help the personal representative avoid conflict and personal liability.

Common Challenges for Personal Representatives

Even a careful personal representative may face objections from beneficiaries, creditors, or other family members.

The following are common trouble spots.

Protecting Estate Property From Interference

Trouble spot: Family members remove property, make decisions without authority, or pressure the personal representative to distribute assets immediately.

How to avoid problems: Secure estate property as soon as possible. Photograph valuable items, prepare an inventory, and keep records of anything moved or distributed.

Explain that the court-appointed personal representative is legally responsible for the estate. Family members should not remove property without authorization.

Receiving Compensation

Trouble spot: Beneficiaries question whether the personal representative should be paid or believe the requested amount is too high.

How to avoid problems: Review the will and applicable state law before taking compensation. Keep records of the work performed and obtain any required consents or court approval.

In Maryland, compensation is generally subject to a statutory formula and applicable probate procedures. The Maryland Register of Wills explains the compensation available to personal representatives.

Compensation is not automatic permission to take estate funds whenever the representative chooses. The required approval process must be followed.

Receiving Reimbursement for Estate Expenses

Trouble spot: The personal representative pays expenses personally and later seeks reimbursement. Beneficiaries question whether those expenses were legitimate.

How to avoid problems: Keep receipts and written explanations for every expense. Use an estate account after one is established instead of mixing estate transactions with personal finances.

Reasonable expenses may include:

• Probate filing fees
• Certified copies of death certificates
• Property maintenance
• Insurance
• Appraisal fees
• Legal or accounting fees
• Necessary travel
• Postage and document costs

The expense must relate to estate administration and be reasonable under the circumstances.

Accessing Financial Information

Trouble spot: A bank or other institution refuses to provide information. Beneficiaries may also question why the representative needs access.

How to avoid problems: Provide proof of appointment, often called letters of administration or letters testamentary. The institution may also request a death certificate, tax identification number, or its own forms.

Access should be limited to information needed to identify, protect, value, and administer estate assets.

Selling Estate Property

Trouble spot: The personal representative decides to sell a home, business, vehicle, or other property, but beneficiaries object for emotional or financial reasons.

How to avoid problems: Base the decision on the estate’s needs and the authority granted by law and the will.

The representative should:

• Obtain a reliable valuation
• Document why the sale is necessary or appropriate
• Use a fair sales process
• Avoid selling below market value without justification
• Obtain court approval when required or advisable
• Keep beneficiaries reasonably informed

A sale may be necessary to pay taxes, administration costs, or creditor claims. It may also be needed when property cannot be divided fairly among beneficiaries.

Seeking Instructions From the Court

Trouble spot: The will is unclear, beneficiaries disagree, or the representative is unsure whether a proposed action is permitted.

How to avoid problems: Ask an attorney whether court instructions or approval should be requested before acting.

Court approval can confirm the representative’s authority and reduce the risk of a later claim. It is especially useful when the estate involves substantial assets, disputed property, or unclear instructions.

Managing Conflicts of Interest

Trouble spot: The personal representative has a personal interest in an estate decision.

For example, the representative may want to buy estate property, forgive a debt owed by a relative, or favor one beneficiary over another.

How to avoid problems: Disclose the conflict promptly. Do not engage in self-dealing or use the position for personal benefit.

Any transaction involving the representative should be fair, transparent, and properly documented. Independent valuation, beneficiary consent, or court approval may be appropriate.

Can a Personal Representative Sell Estate Property?

A personal representative may often sell estate property when doing so is permitted by the will and state law.

The representative may need to sell property to:

• Pay estate expenses or taxes
• Satisfy valid creditor claims
• Prevent the property from losing value
• Divide the estate fairly
• Carry out instructions in the will
• Resolve a dispute

A beneficiary’s objection does not always prevent a sale. However, the personal representative must act within their authority and for a proper estate purpose.

Maryland law specifically authorizes a personal representative to invest in, sell, mortgage, pledge, exchange, or lease property. The will may provide additional instructions or flexibility.

Can a Personal Representative Hire an Attorney?

Yes. A personal representative may generally obtain professional assistance when it is reasonably necessary to administer the estate.

Professionals may include:

• Probate attorneys
• Accountants
• Tax professionals
• Appraisers
• Investment advisors
• Real estate agents
• Property managers

Hiring an attorney does not relieve the personal representative of responsibility. The representative must still make informed decisions and oversee the administration.

However, professional advice can help the representative meet deadlines, prepare accurate filings, resolve disputes, and avoid costly errors.

Professional fees must be reasonable and related to the estate administration. Court approval or beneficiary consent may be required before certain fees are paid.

Can a Personal Representative Decline the Role?

Yes. A person nominated in a will generally has the right to decline the appointment.

Someone who does not have the time, ability, willingness, or appropriate relationship with the beneficiaries should carefully consider whether to serve.

A personal representative who has already been appointed may also be able to resign. Resignation usually requires formal court action and the transfer of records and property to a successor.

A person should not simply stop performing the role after accepting the appointment.

How Can a Will Protect the Personal Representative?

State law grants basic powers, but a carefully drafted will can provide additional guidance and flexibility.

Common provisions may authorize the personal representative to:

• Sell real estate
• Manage or lease property
• Operate a business temporarily
• Settle claims
• Hire professionals
• Divide or distribute property in cash or in kind

Clear instructions can reduce uncertainty and limit disputes over whether the representative exceeded their authority.

Even when the will grants broad powers, the representative must act honestly, reasonably, and in the estate’s interests.

Can a Will Waive the Bond Requirement?

A fiduciary bond works like insurance. It protects the estate against certain losses caused by misconduct or mismanagement.

A will may request that the court excuse or reduce the bond requirement. This can lower costs and simplify the appointment process.

In Maryland, the type of bond required depends on the estate and whether the will or interested persons waive the full bond. The Maryland Register of Wills explains the applicable bond forms and waiver rules.

A waiver in the will may not eliminate every bond requirement. The court may still require additional protection when the law requires it or concerns arise.

Can the Will Specify Compensation?

A will may provide guidance about the personal representative’s compensation.

It might:

• Provide a fixed fee
• Direct that statutory compensation apply
• State that the representative should serve without compensation
• Provide another method permitted by law

Clear instructions can reduce disputes, particularly when one sibling performs the work while the others receive equal inheritances.

Compensation must still comply with applicable law and probate procedures. A will does not authorize excessive or improper payment.

Can a Will Authorize Professional Help?

A will may expressly authorize the personal representative to hire attorneys, accountants, appraisers, property managers, and other professionals at the estate’s expense.

This can reassure the representative that professional help was part of the deceased person’s plan. It may also reduce objections from beneficiaries.

The fees must still be reasonable and connected to the administration of the estate.

Do No-Contest Clauses Protect the Personal Representative?

A no-contest clause, sometimes called an in terrorem clause, is intended to discourage beneficiaries from bringing certain challenges to a will.

These clauses may reduce the risk of unnecessary litigation. However, their enforceability varies by state and circumstance.

A no-contest clause does not give the personal representative permission to act improperly. It also may not prevent a beneficiary from raising a legitimate concern about fraud, misconduct, or failure to follow the will.

How Can a Letter of Instruction Help?

A letter of instruction is an informal document that can provide practical information to the personal representative.

It may identify:

• Bank and investment accounts
• Insurance policies
• Digital assets
• Professional advisors
• Important documents
• People who should be contacted
• Personal wishes about particular belongings

A letter of instruction can reduce confusion. However, it does not replace a will or trust and cannot override legally binding estate planning documents.

Should You Name Co-Personal Representatives?

Naming co-personal representatives may provide additional experience, accountability, or neutrality.

This arrangement may help when:

• The estate contains complicated assets
• One representative lives far away
• The family has a history of conflict
• A professional fiduciary’s experience would be valuable

However, co-personal representatives must coordinate their work. They may need to make decisions jointly unless the governing documents or applicable law provide otherwise.

Disagreement between co-representatives can delay the estate and increase expenses. The decision should be discussed with an estate planning attorney before the will is signed.

How Can a Personal Representative Reduce Personal Liability?

A personal representative can reduce risk by following several practical rules:

1. Wait for formal appointment before acting.
2. Secure and document estate property promptly.
3. Keep estate funds separate from personal funds.
4. Maintain accurate financial records.
5. Follow the will, court orders, and applicable law.
6. Pay claims and expenses in the proper order.
7. Communicate reasonably with beneficiaries.
8. Disclose conflicts of interest.
9. Obtain professional advice when needed.
10. Seek court approval before taking a questionable or disputed action.

A personal representative may face personal liability for losses caused by a breach of fiduciary duty. Careful documentation and timely advice are important protections.

Preparing to Serve as a Personal Representative

A personal representative should understand the role before taking action.

Consulting an estate planning or probate attorney can help the representative:

• Confirm the scope of their authority
• Identify filing deadlines
• Understand compensation and reimbursement
• Address creditor claims
• Handle beneficiary disputes
• Determine whether court approval is needed
• Avoid actions that could create personal liability

McDonald Law Firm can represent personal representatives and other fiduciaries during estate administration.

To schedule a consultation, contact us:

• Howard County: 443-741-1088
• Montgomery County: 301-941-7809
• District of Columbia: 202-640-2133

DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE, OR TAX ADVICE.