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Probate in Florida – Role of the Personal Representative

gavel-01The court supervised process of distributing a deceased person’s property (known as his or her estate) to pay off any outstanding debts and releasing what remains to the person or persons designated in the decedent’s will (known as his or her beneficiaries) is known as probate. The court will assign a personal representative to be responsible for managing all the paperwork pertaining to and assets of the estate; this representative must meet certain eligibility requirements and will typically work with an attorney who will guide him or her through the process.

Duties of a Personal Representative

Florida law uses the term “personal representative” in place of “executor” or “administrator”. The person filling this role must complete the following obligations:

  • Gather, protect, and assess the value of the decedent’s probate assets. It is important to note that some of the decedent’s assets may not be considered a probate asset, such as homestead property, for example.
  • Notify any potential creditors who may wish to file a claim with the court for a portion of the decedent’s estate via a “Notice to Creditors” published in a local newspaper.
  • Make a reasonable attempt to personally locate and notify any potential creditors of the deadline to file a claim on the estate.
  • Pay any valid creditor claims by liquidating a portion of the estate, if necessary. The personal representative may object to any claims which he or she believes to be invalid; when this is the case, a separate suit must be filed in order for the creditor to pursue the claim.
  • File any required tax forms, which, depending upon the situation, may include: 1) a 1040 standard Income Tax Return if the decedent earned income above the filing threshold during the year of their death; 2) a 1041 Income Tax Return on the estate itself if any of the assets generated $600 or more during the course of a year in the form of dividends, interest, rental income, etc.; 3) form 706, known as the Federal Estate Tax Return, to report the total gross amount of the decedent’s estate, and/or 4) form 709, the Federal Gift Tax Return to report any gifts made by the decedent before their death.
  • Pay any taxes that are due.
  • Hire and pay (from the estate assets) any professionals needed to assist in the management of the estate, including attorneys, appraisers, financial advisors, accountants, etc.
  • Pay any required statutory sums to the decedent’s spouse or other designated family member(s).
  • Distribute any remaining assets to the decedent’s beneficiaries after all valid creditor claims are paid.

A personal representative has a tremendous amount of legal authority to manage any and all property that is part of the probate estate, including the ability to liquidate assets as needed to pay creditors and/or expenses. If, however, the personal representative is determined to have knowingly acted against the best interest of the beneficiaries, he or she may be held liable for any damages or losses incurred.

Minimum Requirements to Serve as Personal Representative

While the court will attempt to appoint the person requested in the decedent’s will as personal representative of their estate, that person must first be deemed eligible. In Florida, there are certain minimum requirements to hold the position, including:

  • Must be 18 years of age or older and have no felony convictions;
  • Must be either a legal resident of Florida OR a close relative of the decedent (spouse, child, parent, sibling, etc.);
  • Must have the mental and physical capacity to complete the tasks required.

The role of personal representative can be completed by an individual or a representative of a banking institution or trust company, provided the institution is incorporated under Florida laws.

Who Will the Court Appoint as Personal Representative if No Valid Will Exists?

 If the decedent has not left behind a valid will (a situation known as “intestate”), the law states that a decedent’s surviving spouse be given the first option to serve as personal representative, assuming he or she is willing and meets the legal requirements. When this is not an option, the beneficiaries to the estate are given the option of selecting among themselves whom they prefer to act in the role of representative. If no agreement between the beneficiaries can be made, the court will hold a hearing to determine and appoint the person most qualified.

A Professional Attorney Brings Clarity and Order to the Process

Clearly, one can see how the details of acting as a personal representative can be very painstaking and cumbersome for anyone unfamiliar with how the probate process works. Working closely with a professional attorney is the best way to ensure that the proper steps are followed from start to finish, freeing you up to complete the specific tasks requested of you. Contact the Judy-Ann Smith Law Firm today, for assistance with all your probate matters.