There are several individuals who have important roles in the probate process, but none are more important than the personal representative and the beneficiaries. In the State of Florida, the deceased individual may have stated his or her executor (also referred to as the personal representative) in the will, but if there is no will, then the personal representative is appointed by the court.
The personal representative does have an important role in the probate process and has to meet certain obligations. But, at the same time, the personal representative also has certain rights. First and foremost, the personal representative can resign at any time or refuse the request to be the executor. Just because a judge appoints an individual to be a personal representative does not mean that the individual is legally bound to accept that role.
Can a personal representative be a beneficiary of a will? Yes. A personal representative can also be a named beneficiary in the decedent’s will. For example, in a family with four siblings, one of the siblings or even the spouse may act as a personal representative. There is no law against it as long as the individual is mentally and physically fit to perform the duties.
Is a Florida sole heir as personal representative possible? Yes, the sole heir of an estate in Florida can also act as the personal representative of the will.
The other major players in the probate process are the beneficiaries. These individuals are not silent players but have a strong voice. If they deem the will to be not valid, forged, or fraudulent, they can speak up.
In addition, if they think that the decedent wrote the will under duress or was mentally incompetent, they can tell that to the judge. The beneficiaries have the legal right to know all the assets, their value, and status; this information is provided in a written statement to all the beneficiaries by the personal representative.
The role of the personal representative is primarily to administer the estate to the beneficiaries as identified to receive assets from the estate. While this may sound like a straightforward relationship, it can be anything but simple. The two parties may not see eye to eye and the relationship can be strained and even lead to litigation.
In most cases, the relationship between these two players is uncomplicated and straightforward. The personal representative communicates freely and regularly with the beneficiaries and the probate process runs without a glitch. But there are times when the relationship between the personal representative and the beneficiary(ies) becomes complex and bitter. In such cases, the probate process can be prolonged and acrimonious.
For example, one sibling may not agree as to how the estate is managed or may want a lion’s share of the estate. Or the other siblings may not trust the sibling acting as a personal representative; this reason alone is not adequate for the removal of the latter.
Dismissal of the Personal Representative
In reality, there is no legal criterion that determines the grounds for the removal of a personal representative. However, there are a few areas of disputes between the personal representative and the beneficiaries that can lead to the dismissal of the former.
One of the key responsibilities of the personal representative is to communicate regularly with the beneficiaries. In today’s digital age, this should not be a problem. The beneficiaries need to be informed about the events in the probate court, who the creditors and lien holders are, and how much they are owed.
One major duty of a personal representative is to have a chronology of the accounting of the estate and how it relates to the beneficiaries. Just picking up the phone and verbally telling the beneficiaries that some of the money will go to the creditor is not good enough. Everything must be done in writing. The beneficiaries have the right to know how the estate is being handled.
For example, if a property is going to be sold, beneficiaries need to know if there will be a bid and for how much. Failure to provide an accounting to the beneficiaries is a common reason why a personal representative can be removed by the probate judge. Or, in some cases, if the personal representative is caught making behind-the-scenes deals for the disposal of property, this can lead to litigation.
Preventing the Rightful and Legal Distribution of the Estate:
In Florida, the courts expect that the inheritance to the beneficiaries will be distributed without any interference from the personal representative. If the personal representative pressures a beneficiary for a reward in lieu of the assets, then it is grounds for dismissal of the individual. The personal representative should distribute the assets according to the law and without any duress or any expectation of something in return.
Breach of Trust:
The role of the personal representative and the beneficiaries is based on trust (fiduciary duty). The personal representative has to act in the best interest of the beneficiaries and not some third party. For example, the personal representative may be selling the home of the decedent.
The home may be worth $1million but the personal representative sells the home to a friend for $500,000, which he distributes to the beneficiaries. But, later, the personal representative may go behind the scenes and get more money from the buyer when the probate is complete. This type of underhand activity is a cause for the dismissal of the personal representative.
The best way to avoid issues in probate between the personal representative and the beneficiaries is for all parties to work with a trusted probate attorney. If you have been named in a will to act as an executor or the probate court has appointed you as the executor, and you have no idea what to do, the best advice is to work with a probate lawyer for guidance.
These professionals cannot only offer guidance but also act as a representative in court for you. With an experienced probate lawyer, you will never feel left out or be stressed and, most importantly, the wishes of the decedent will be carried out according to the will.