Written by attorneys · grounded in primary & secondary sources — see below
A fiduciary appointed by a probate court to administer a decedent's estate. The personal representative collects probate assets, pays valid creditor claims and taxes, and distributes the remaining property to devisees or heirs according to the will or intestacy statutes.
Sources & Authorities
How it applies
Common Examples
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Lien Payment from Estate Assets
Peter Park dies leaving a mortgaged house to his niece Nina. The personal representative pays the mortgage balance from other estate funds so Nina receives the house free of the lien under the traditional exoneration rule.
Capacity to Sue in Transferred Case
Pierre Poulin dies in an accident. His personal representative files a wrongful-death action in federal court. After transfer under section 1404(a), the court applies the law of the original forum to determine whether the representative has capacity to maintain the suit.
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Van Dusen v. Barrack376 U.S. 612 (1964)
Mortgage Moratorium Enforcement
Preston Pratt's estate holds a mortgage on a farm. The personal representative seeks to enforce the mortgage during a state-declared emergency moratorium. The court weighs whether the temporary delay constitutes an unconstitutional impairment of the estate's contract rights.
Home Building & Loan Association v. Blaisdell290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934)
Duty to Warn Third Parties
Pavel Petrov's estate is sued after the decedent's therapist failed to warn a foreseeable victim. The personal representative defends the claim, arguing that any duty to warn ended with the patient's death and did not survive against the estate.
Tarasoff v. Regents of the University of California551 P.2d 334, 342 (Cal. 1976)
State Law on Jury Trial Right
Piper Patel's estate brings a negligence action in federal court. The personal representative demands a jury. The court looks to state law to decide whether the estate's claim carries a Seventh Amendment jury-trial right.
Byrd v. Blue Ridge Rural Electrical Cooperative, Inc.356 U.S. 525, 537–38 (1958)
Posthumous Privilege Assertion
Pedro Pacheco dies after consulting counsel about a securities scheme. The personal representative asserts attorney-client privilege to prevent the lawyer from disclosing the decedent's statements in a later prosecution of alleged coconspirators.
Swidler & Berlin v. United States524 U.S. 399 (1998)
Common questions
Frequently Asked
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What duties does a personal representative owe when administering an estate?+
The personal representative must inventory probate assets, give notice to creditors, pay valid claims and taxes, and distribute the remainder to those entitled under the will or intestacy statutes.
Supporting sources
How does a personal representative differ from an executor or administrator?+
Personal representative is the generic statutory term that includes both an executor named in a will and an administrator appointed when there is no will or the will fails to name one.
Supporting sources
Can a personal representative bring or defend tort claims on behalf of the estate?+
Yes. Survival statutes authorize the personal representative to pursue or defend actions for the decedent's pre-death injuries, and wrongful-death statutes often designate the representative as the proper plaintiff.
Supporting sources
Does the attorney-client privilege survive the client's death when asserted by the personal representative?+
The privilege ordinarily continues after death. The personal representative may assert it to protect the decedent's confidential communications unless a recognized exception or waiver applies.
Supporting sources
How is the citizenship of a personal representative treated for diversity jurisdiction?+
Under 28 U.S.C. § 1332(c)(2), the legal representative of a decedent's estate is deemed a citizen only of the same state as the decedent, preventing manufactured diversity through choice of representative.
356 U.S. 525, 537–38 (1958)Civil Procedure
…on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin as against his employer, at common law or otherwise, on account of such injury, loss of service or death." " 72-123. Only one remedy available. Either…