Taking Care of Mom and Dad: Other Reasons to Minimize Probate

Throughout the probate process, the executor -- in some states, called a personal representative -- plays a central role. He or she is responsible for seeing that the estate makes it through probate.

Sometimes the executor is also a beneficiary. In these cases, he cannot give himself preferential treatment. The best way to assure family peace is to make a will that states clearly how assets should be handled.

One of the executor's most important duties is to take an inventory of estate assets. An executor must also act to preserve and protect the assets, according to the prudent person rule. Obeying this rule is part of a fiduciary duty imposed by law on executors (and trustees) to act cautiously, as though dealing with their own affairs.

That said, the burden of getting things right rests with the person who's died. An executor will only be liable for problems if he or she acts criminally or is grossly negligent. This is rare. The executor is not liable for a poor return on estate investments -- this is not so rare -- as long as those chosen are prudent.

An executor is entitled to reasonable compensation, often limited to a certain percentage (e.g., 5 percent) of the property in the probate estate. Extra compensation, related to handling some special matter, may be allowed by the court.

The key point in choosing an executor is fairness. The executor of even a modest estate can be the lightning rod for all kinds of family disputes.