My father passed away and my brother has been designated as personal representative for his estate. Does that mean he will get our family ʻāina? I had the power of attorney for our dad before he died. Am I supposed to be the personal representative?
By Liʻulā Christensen, NHLC Senior Staff Attorney
When a loved one passes away and the ʻohana is determining how to settle their loved one’s estate, often someone needs the legal authority to inventory, maintain, and distribute that person’s property and assets, called their estate, to those legally entitled to it, including heirs and creditors. For example, someone may need the authority to pay their loved one’s bills, or transfer title to their loved one’s home to their heirs. A personal representative can have that authority.
Personal representatives, if needed, must be appointed by a court. The court may appoint a specific person because the deceased person asked them to be their personal representative in their will. If a personal representative is not named in a will, or if the loved one did not have a will, the court can choose someone that petitions to be appointed as personal representative.
Hawaiʻi law provides rules for who will be given priority to serve as personal representative, and a process for objecting to a person’s appointment as the personal representative. Often, surviving spouses or close relatives are appointed to the personal representative role.
Appointment as personal representative means that the person steps into the shoes of the deceased person – in a sense, becoming that person for the limited purpose of administering the estate.
This includes accounting for all the deceased person’s property and maintaining it during the time it takes to settle the estate, pay debts, and then give the remainder of the deceased person’s property to their rightful devisees (persons gifted property in a will) or heirs (relatives entitled under state law to receive estate property not gifted by a valid will), according to probate laws and rules.
This kuleana has some similarity to the kuleana of someone, called an agent, with a power of attorney to act on behalf of another person, called a principal, and manage the principal’s affairs while they are alive.
Importantly, however, a power of attorney provides legal authority for one person to act on behalf of another who is alive. When the principal passes away, the authority provided by the power of attorney ends. An agent who held a power of attorney for someone who has since died is not automatically appointed to be the personal representative for the estate. The appointment of a personal representative will depend on the deceased person’s will or the outcome of the court’s selection process.
Personal representatives for a deceased person’s estate are not necessarily entitled to personal ownership of property in an estate – though they will steward the estate’s property and have the authority to take actions involving the property to settle the estate. They are bound, however, to follow all probate laws and rules to execute their duties. If they do not, they could be personally liable to devisees or heirs.
Personal representatives may be paid reasonable compensation for their services attending to the kuleana of administering the deceased person’s estate. It is also possible for the person who serves as the personal representative to also be a devisee or heir to the deceased person. In any of those situations, the person serving as the personal representative might receive property from the estate, not because they are the personal representative, but rather for those other reasons.
This is a complex area of law, although it affects virtually all families. Devisees or heirs that have questions about how to work with a personal representative and the process for ultimately receiving any property they are entitled to from the estate will benefit from talking to a probate lawyer.