Based upon the circumstances, there are a number of people who could have a substantial role to play in the Florida probate process when administering the estate of a deceased person. Those people include:
- The clerk of the circuit court in the county of the decedent’s domicile.
- The circuit court judge.
- The executor or “personal representative.”
- The lawyer giving legal counsel to the personal representative during probate.
- The individuals putting forward claims in the probate process relating to the decedent’s debts, which may include such things as medical debt and credit card debts.
- The people representing the Internal Revenue Service (IRS), relating to any taxes the decedent may owe and any federal estate, gift, or generation-skipping transfer tax issues.
In this blog, we will invest time into looking at the role of the executor, called the personal representative here in Florida. While you may have some assumptions about the personal representative’s role, there may be a few things specific to Florida that you may not know.
If you find yourself in the role of a personal representative or need legal advice in general about probate matters, then you should consult with an experienced probate lawyer in West Palm Beach, Doane & Doane. We welcome you to call us. We understand all aspects of Florida’s probate administration process, and we can give you sound advice on how to minimize the frustration, and maximize the benefits from a probate proceeding. Call the probate lawyers in West Palm Beach, Doane & Doane, for a free consultation today at 561-656-0200.
What is a Personal Representative?
The personal representative is the individual, banking institution, or trust company that is appointed by a probate court to manage the administration of the probate estate of the decedent. Florida courts prefer the term “personal representative” rather than the more old-fashioned terms of “executor,” “executrix,” “administrator,” or “administratrix.”
The personal representative is the individual who has the legal responsibility, under Florida law, to administer the estate that is in probate.
What Does a Personal Representative Do?
Just to give some idea of the specific responsibilities of the personal representative, that individual is charged with:
- Identifying, valuing, and protecting the decedent’s assets in probate.
- Notifying all potential claimants who may have claims against the decedent’s estate by publishing a “notice to creditors” in the local newspaper.
- Providing information regarding the details of the probate estate through service of a “notice of administration,” which explains to objectors how they can object to the administration of the decedent’s estate.
- Searching, in a diligent manner, for those “known or reasonably ascertainable” creditors of the probate estate; and providing deadlines to those creditors on when claims should be filed.
- Objecting to improper claims and defending against any lawsuits filed on behalf of those improper claims.
- Funding all valid estate claims.
- Submitting any returns and paying any taxes that are due.
- Hiring professionals to help in managing the decedent’s assets, such as lawyers, accountants, appraisers, and financial advisors.
- Funding any expenses necessary to manage the assets in probate.
- Distributing the probate estate amounts to beneficiaries.
- Closing the probate estate at the conclusion of the proceeding.
Those are important duties, and a personal representative is obligated to exercise those duties with care and diligence. If the personal representative mismanages the estate, the beneficiaries may hold the personal representative liable for any harm he or she causes.
Who Can Serve as a Personal Representative?
As noted, a personal representative can be either an individual or a business entity such as a financial institution. For an individual to serve as a personal representative, he or she must be a Florida resident. However, if the individual is a spouse, sibling, parent, child, or other close relative of the decedent, then he or she does not need to be a Florida resident to serve as a personal representative in the State.
Those individuals who (i) are under 18 years old; (ii) are mentally or physically not able to handle the personal representative duties; or (iii) have been convicted of a felony cannot serve as personal representatives.
With regard to business entities serving as personal representatives, those entities can be a Florida trust company, a bank, or a savings and loan that are permitted to exercise fiduciary powers in the State of Florida.
Who Can You Expect a Judge to Appoint as Personal Representative?
There are some rules that probate judges follow to determine who would be best positioned to serve as a personal representative. A lot of the question depends upon whether the decedent had, or did not have a will.
If the decedent had a will that is valid, then the judge would appoint the person or business entity named in the decedent’s will as the personal representative. In other words, as long as the named individual or business entity is qualified to serve as a personal representative, then the judge will follow the decedent’s wishes regarding the personal representative.
If the decedent, however, died without a will, then the judge must make a determination on the personal representative. The individual with the first right to appointment as personal representative is the decedent’s surviving spouse.
If the spouse declines to serve as personal representative, or the decedent was not married at the time of his or her death, then the individual or business entity chosen by a majority of the decedent’s heirs will have a second right to be the personal representative.
Finally, if the heirs are unable to agree, then the judge will hold a hearing and appoint a personal representative.
Does a Personal Representative Need an Attorney?
It is recommended that a personal representative always hire an experienced probate attorney to help with the management of the decedent’s probate estate. Even in the least complicated probate proceedings, issues will arise that will be entirely new and unfamiliar to a non-attorney personal representative.
An attorney working on behalf of the personal representative will be valuable because he or she will ensure that all of the duties and responsibilities of the personal representative are fulfilled. It is important to note that the personal representative’s attorney is not the attorney for any of the decedent’s beneficiaries.
Probate Lawyers in West Palm Beach, Doane & Doane, Can Represent You
At Doane & Doane, employing top probate lawyers in West Palm Beach, we have vast resources and experience with probate matters. Let us represent you if you are the personal representative of a decedent’s estate. Call Doane & Doane today for more information at 561-656-0200.