Role of the Personal Representative
Even if you are not considering hiring a professional, thought still must be put into who should be the PR. For example, if a woman dies leaving behind a husband and two children, ages 19 and 21, which of the three would make the best PR? One of the children may get more sympathy from a jury. On the other hand, a jury may hesitate to award a lot of money to someone they think is too young.
ALL the facts need to be taken into account. For example if the husband has been having an affair, that is more likely to be discovered by the defendant (and used against the wrongful death case) if the husband is named the personal representative. In that case, it may be better to have one of the children be the personal representative. If one of the three is more organized, or has more time, or is considered more trustworthy by the other two, all of this should be taken into account. As you can see, every situation has to be fully evaluated on its own terms before making this important decision.
The personal representative is the person who is in charge of the sorts of decision-making that a client does in a lawsuit. The most important decision is whether to accept a settlement offer. That decision must be approved by a judge, but approval is usually given, so this is a very important power.
The personal representative is also responsible for much of the paperwork that goes along with a lawsuit. If a family member who has been left behind by the death is too grief-stricken to be an efficient administrator, it may make sense to hire a professional to take over the administrative tasks as much as possible.
The personal representative is required by law to act “reasonably for the benefit of interested persons.” So legally, if an interested person believes that a personal representative is not doing this, they can bring this to the judge’s attention. Practically speaking, however, a personal representative has a lot of leeway. The term “reasonable” does not stretch forever, but it does stretch pretty far. There are a wide variety of actions a person can take and still be “reasonable.”
The personal representative is also entitled to be compensated for serving. This is separate from any money that may be received for being one of the beneficiaries. The compensation is set by statute in ORS 116.173, and Brown v. Hackney, 228 Or.App. 441 (2009).
The personal representative is entitled to a percentage of the “whole estate,” which means the value of the wrongful death claim in addition to any other assets that may be in the estate of the deceased. The percentage is: 7% of the first $1,000, plus 4% of the amount between $1,000 and $10,000, plus 3% of the amount between $10,000 and $50,000, plus 2% of the amount above $50,000.
To make this a little simpler, here’s how you figure it out in three steps: (1) Take the total amount of the whole estate and subtract $50,000. (2) Take 2% of that. (3) Then add $1,630. So if the total is $500,000, then the personal representative’s compensation would be 2% of $450,000 (which is $9,000) plus $1,630, for a total of $10,630.
In conclusion, the personal representative is an important position, and much thought should given to the question before deciding who is the best person to be the P.R. It is usually the spouse, child, or parent of the deceased person. Ideally all the beneficiaries can agree on who is best situated to handle this responsibility, but if they cannot agree, the law provides ways to settle the dispute. A judge must ultimately appoint the P.R., whether or not anyone disagrees with the appointment.