Berkshire Elder Law - Telephone: (413) 664-7700 - Fax: (413) 664-6335
We have been pleased with your services and recommend your firm to anyone. I'm especially impressed with the swift response you give us when we a leave a message for you. I feel your fees are very fair and we will continue to use your firm whenever a legal need arises.
Andrew & Rebecca Goyette Adams, MA



Many people do not realize the work and complexity that can be involved in being a Personal Represetative of an Estate. The person making out the Will usually chooses a spouse, another close relative or friend, their attorney, or a bank. Personal Representatives, as fiduciaries, must observe a strict standard of care in carrying out their duties and protecting Estate assets. Here is a partial list of these duties.

1. Get the Will probated. This usually involves having a lawyer petition the Court to approve the Will and have the Personal Representative appointed. Once this step has been completed, the Personal Representative is empowered to administer the Estate, which might include any of the rest of the items in this list, depending on the size of the Estate.

2. Collect or "marshal" the assets, so that they can be distributed according to the terms of the Will. Finding assets often can be a challenge. The Personal Representative must find all car registrations, stock certificates or account statements, mortgage papers, deeds pension benefit papers, and IRA and savings account papers, to name a few. (Could you easily find these for yourself?)

3. Make sure the assets are valued. A valuation is needed for Estate tax purposes, but it is also done for the sake of the heirs. Under the tax law, the heirs inherit the assets at a tax basis that is equal to the value at the date of death. This "stepped-up basis" can be a valuable tax benefit, so the Personal Representative must have the assets valued and keep a record of the values.

Example: Your niece inherits 1,000 shares of stock from you. You only paid $20 per share, but the stock is now worth $100 a share. As you can see, you'd have a capital gains tax based upon the difference of the sales price of $100,000 less your purchase price of $20,000 if you sold that stock. But when your niece inherits it, she'll get a "stepped-up basis" - the date-of-death value of the stock ($100 per share); if the price goes up after your death and she sells it she will pay less capital gains tax than you would have paid, if she sells it for the $100 per share dated-of-death value she will pay $0 capital gains tax.

Assets that are not readily valued, such as business interests, real estate, art collections, should be appraised.

4. File the necessary tax returns, federal and state, and pay the taxes. Taxes would include federal Estate tax and state Estate tax, and any Income taxes, federal and state, the Estate and/or the decedent might owe. Larger, more complex Estates usually must file all three of these.
The general rule is that if the taxable Estate is greater than the Estate tax limit
($5.2 million Dollars), a federal Estate tax return must be filed. In Massachusetts an Estate tax return must be filed for Estates valued at over 1 million dollars. The valuation of assets discussed above is needed for the federal Estate tax and MA Estate taxes. Federal and Massachusetts Estate taxes are due and payable nine (9) months from the date of death.

The Personal Representative must also file the decedent's final Income tax return, federal and state, and make any necessary tax-related elections by the applicable April 15, Income tax filing deadline. Additionally, the Estate, as a separate entity, may also need to file Income tax returns if the Estate earnings exceed a certain limit.

5. Cancel credit card and other accounts, and inform various persona of the death.

6. Make an inventory and accounting of the Estate's assets (this often necessitates professional help).

7. Determine and pay the Estate debts.

8. Distribute and/or transfer the Estate's assets in accordance with the Will or to heirs if there is no Will.

The Personal Representative may also need to sell and/or manage the Estate assets. Of course, the amount of work involved will depend on the size and complexity of the Estate and its assets. In most cases assets will be liquidated before distribution. If you are appointed Executor, the assistance of suitable professionals, such as appraisers, accountants, attorneys, real estate brokers, etc. can make your job more manageable.

Please not that in Probate of a decedent who did not have a Will the Administrator's duties are the same as set forth above.



Created - 07/27/2009 | Last Updated - 01/28/2015
A Love Story - The latest Elder Helper

All rights reserved 2015 Berkshire Elder Law - Jim Sisto