When a person dies and does not have an executor of a will, the court can either appoint a special administrator until the family decides on a personal representative for the estate, or the court can appoint a personal representative for the estate. We at the Law Offices of Baldwin and Briscoe have experienced attorneys as both personal representatives and special administrators.
A personal representative is a person who is named in the will to settles the estate. This person or entity can be a friend, family member, bank, accountant, or even a practicing attorney. A huge amount of expertise goes into settling an estate. An appropriately drafted Last Will and Testament will nominate one or more personal representatives to administer the settling of the estate. If there is no will, if the will fails to name a personal representative, or the personal representative named is unable or unwilling to serve, the court will appoint a personal representative.
Powers and Duties of Personal Representatives
Maryland Estate and Trusts §7-101 is the governing law that states what the duties of a personal representative are. A personal representative first begins his or her duties as personal representative by receiving paperwork from the Orphans Court giving him the powers to settle the estate. The personal representative starts their job by making an accounting of the assets of the estate and submitting them to the Orphan’s Court. The next step as a personal representative of an estate is to check whether all the necessary taxes, mortgages, and liens are paid on the estate. The final step as personal representative is to distribute the remaining assets of the estate. According to Bates v. Gurley, a “‘personal representative must place the best interests of the heirs ahead of his own interests’” Bates v. Gurley, 948 A.2d 518, 527(May 2008); citing Md.Code Ann., Est. & Trusts § 7–101(a) (2008). In order for the personal representative to place the best interests of the heirs above his or her own interests, the personal representative must act according to what is written in the deceased’s will. According to Brewer v. Brewer, “[t]he personal representative has a fiduciary duty to ‘settle and distribute the estate of the decedent in accordance with the terms of the will and the estates of decedents law.’” Brewer v. Brewer, 386 Md. 183 (May 2005); citing Estates and Trusts Article, § 7-101(a).
How Personal Representatives are Removed
Maryland Estate and Trusts § 6-306 is the governing law that states how a personal representative can be removed from the position. There are six reasons why the court may remove a personal representative. They are:
- A misrepresentation, by the personal representative in the proceedings leading to his or her appointment.
- Where the personal representative willfully disregards an order of the court.
- Where the personal representative, regardless of fault, is unwilling or unable to discharge his duties and powers effectively.
- Where the personal representative has mismanaged property.
- Where the personal representative has failed to maintain on file with the Register of Wills, a currently effective designation of an appropriate local agent for service of process.
- Where the personal representative has failed, without reasonable excuse, to perform a material duty pertaining to the office.
Removal of the personal representative is always discretionary and the Court may choose not to remove a personal representative, even if it finds that appropriate cause exists which would warrant the removal. The court must hold a hearing before a personal representative can be removed. If the personal representative is removed, the court will appoint a new personal representative, and the personal representative being removed must turn over all property belonging to the estate that is in his possession.
Due to the amount of work a personal representative has to do, the personal representative is usually paid. Sometimes, the will sets out a dollar amount to compensate the personal representative for their work, if not, the probate court will generally award one.
Maryland Estates and Trust §6-403 explains the duties and responsibilities of a special administrator.
A special administrator shall collect, manage, and preserve property and account to the personal representative upon his appointment. A special administrator shall assume all duties unperformed by a personal representative imposed under Title 7, Subtitles 2, 3, and 5 of this article, and has all powers necessary to collect, manage, and preserve property. In addition, a special administrator has the other powers designated from time to time by court order. EST. & TRUSTS § 6–403.
To make this simpler, a special administrator has all the same duties a personal representative has, but cannot sell the estate without the permission of the court. According to Green v. Nassif, [a]lthough a Personal Representative generally has broad powers, the powers of a Special Administrator are limited to preserving and maintaining estate property, unless those powers are expanded by court order. Compare MD.CODE ANN. (1974, 2001 REPL.VOL.), EST. & TRUSTS § 6–403 with MD.CODE ANN., EST. & TRUSTS § 7– 401. For example, a Special Administrator cannot distribute property without court approval; however, a Personal Representative possesses such authority. MD.CODE ANN., EST. & TRUSTS §§ 6–403, 7–401. Green v. Nassif, 401 Md. 649 (November, 2007).
Therefore, a special administer typically only deals with property that has a monetary value. Boehm v. Harrington, 54 Md. App. 346, 458 A.2d 885 (1983). Special administrators are helpful because they preserve the estate and can perform most of the duties a personal representative are allowed to perform, in order to keep the division process of the estate moving forward. However, special administrators are only temporary, and are replaced once a personal representative is appointed to the estate.