Flat-Fee Probate Assistance Statewide
Personal Representative Info
An overview of the appointment, responsibilities, and duties of the Florida Probate Personal Representative
Who is the Personal Representative?
The personal representative is the person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent's probate estate. In Florida, the term "personal representative" is used instead of such terms as "executor, executrix, administrator and administratrix."
To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child, or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.
Individuals are not qualified to act as a personal representative if they are either under the age of 18 years, are mentally or physically unable to perform the duties, or have been convicted of a felony.
A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can also serve as the personal representative.
Being Appointed as Personal Representative
Application for appointment as Personal Representative must be submitted and approved by the court before the powers attached to the position (Letters of Administration) are granted. Under certain conditions, the judge may request that the personal representative be bonded ("insured"). This involves submitting an application for bond along with a bond premium. A bond application requires the prospective personal representative to complete a questionnaire regarding employment (if working), credit, and criminal background history. Once the bond is issued, it is submitted to the court and the judge will issue Letters of Administration — a document that empowers the personal representative to begin conducting the affairs of the estate.
A. First and Foremost, a Personal Representative is a Fiduciary
A personal representative is classified in law as a "fiduciary" — a person who has been selected for a position of special faith, trust, and reliance.
B. Qualification To Serve as Personal Representative
By accepting the position of personal representative you are stating that you qualify to act as personal representative in accordance with Florida Statutes §§733.302–733.304. Among these qualifications you are stating that you are not a convicted felon, you are over the age of 18, and you are a resident of the state of Florida. If you are not a resident of Florida, you may still qualify under Florida Statute §733.304 if you satisfy certain criteria. Please let us know if you are not a resident of Florida so that we may properly evaluate your eligibility.
C. Your Duty To Preserve Assets
From the time the "Letters of Administration" are issued to you — and not before — until final distribution is made, you are entitled to possession and control of all of the assets of the estate. Your duty is first and foremost to protect and preserve the assets. You must also see that the assets are invested in a prudent and cautious manner. The persons to whom you owe these duties are, first, any creditors of the estate, and second, the beneficiaries of the estate. If your duties are not properly or competently performed, you may have to answer to any of these persons who have been harmed as a result.
Stages of the Estate Administration
If you are appointed as personal representative for an estate you must be aware of the duties and responsibilities to which you are entrusted. The functions described below are often referred to under the term "settling the estate." This is a summary of the role and many of the duties a personal representative undertakes. Several overlapping stages occur during the estate administration process:
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Commencement of the Estate — Letters of Administration
The process of probate begins with filing the will for probate, preparation and filing of a petition for probate, and after various procedures which are our responsibility, the judge will sign "Letters of Administration," certified copies of which you will receive. The Letters of Administration are evidence of your legal authority to act as personal representative.
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Notices to Creditors and Heirs
Once the administration procedure has begun, beneficiaries of the estate will receive the required notice by certified mail. Creditors are given legal notice by publishing a legal notice in the newspaper, but creditors whose names and addresses are known or reasonably ascertainable must be served with the notice directly.
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Inventory; Securing and Managing Assets
The next stage involves identifying, collecting, inventorying, valuing, securing, and investing the assets of the estate. An important part of making certain that assets are secure is arranging for adequate insurance coverage for tangible personal property or improved real property. A list of all of the assets and their values must be filed with the court in the form of an inventory. Throughout the estate proceeding, management of the assets is an important concern — including investment of the assets and liquidity management to meet cash requirements as they arise.
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Creditor Claims
During the early period of administration (within approximately the first four months) any person having a claim against the estate as creditor is required to file the claim in the court. At the end of this initial period you will review any claims filed to determine that each appears to be valid and then promptly arrange for payment of all valid claims to avoid interest expense. Any claims not filed in this time period are not legal obligations of the estate, and in most instances cannot be legally paid.
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Tax Returns
Another stage is the determination of various tax returns that may be required by law to be filed for the estate. The most common include income tax returns for the decedent which may not have been previously filed, income tax returns for the estate, and an estate tax return if the total taxable estate exceeds a certain valuation. You should review the estate assets and estate income with a CPA or accountant to determine which, if any, tax returns are required to be filed. Merely because a tax return is required by law to be filed does not necessarily mean that any tax is due.
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Distribution
After expenses, including taxes, have been paid, the next stage is the distribution of the estate to the beneficiaries. We will review the terms of the will — or in case there was no will, advise you of the provisions of the law that apply — to identify the persons who are properly beneficiaries of the estate and entitled to distribution. Distribution of the assets then occurs to the persons entitled, sometimes by distributing the assets directly in satisfaction of a bequest, and other times by selling those assets and converting them to cash.
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Closing the Estate
In this procedure the court enters its order discharging you as personal representative after your duties have been completed. It is necessary to report to the court on all of the legally significant activities which occurred in the estate and to furnish evidence that the creditors have been paid, that certain taxes have been paid, and that the remaining property has been distributed to the persons entitled in proper shares. When this evidence has been presented in proper form, the judge will sign an order which discharges you as personal representative and terminates your obligations with regard to the probate.
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Post-Closing Activities
The estate is obligated to file a final income tax return for the year in which final settlement occurs. It should be remembered when the estate is closed that the estate may have had taxable income for that year or otherwise be responsible for the payment of taxes, and sufficient funds must be retained by you in order to enable you to pay these taxes that may be due.
Your General Responsibilities — Working Together
As personal representative, in accepting the office and the trust of the estate, you have also agreed to be personally responsible financially for certain matters. Initially, you have personal responsibility for proper administration, investment, and subsequent distribution of the assets of the estate. Should you fail in this duty you may be sued by any person who has been injured by your failure.
More important, however, is certain hidden liability which you have assumed for the payment of various taxes that were owed by the decedent, or that may subsequently be owed by the estate. Upon the failure to pay these required taxes, the law permits the Internal Revenue Service, and in some situations, the State of Florida, to collect the taxes from your own assets — including the right to freeze your personal bank account or place liens on real estate or other property which may belong to you personally.
It is because of this exposure to items that might otherwise be unknown to you that we should work closely together, and you should permit us to advise you at each level on your duties and responsibilities. If you have any questions, you should not proceed without legal advice.
The hiring of a Florida probate attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This site is designed to provide general information only. Content on this site should not be interpreted as specific legal advice, or the formation of an attorney/client relationship.
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