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  • Ryan J. Smollar

Why is a Personal Representative Necessary in Florida?

Updated: Aug 30

When a will has to undergo the probate process in Florida, a personal representative or an executor of the will is necessary because it is the law in the State of Florida. In the simplest terms, a personal representative’s duties in Florida include taking responsibility for the decedent’s estate (assets), making sure all creditors have been paid, and ensuring that the estate is resolved in a reasonable and just manner and then closed, according to Florida law.


Unless the will has mentioned a specific person to be a personal representative, the court may decide to elect an individual. This individual may be a financial officer, lawyer, or an individual who the probate court judge has appointed. In the majority of cases, it may be the spouse, sibling, or someone related to the decedent.


For example, if there are five siblings, they can elect one member to be the personal representative. However, the ultimate decision on who can be the personal representative depends on the judge who has to make sure that the selected individual is dutifully able to carry out the responsibilities.


Florida personal representative qualifications are described below. If you are selected as a personal representative of an estate in Florida, here are a few things you should know:


  1. Even if the decedent named you in his or her will to be a personal representative, the final decision rests with the probate court judge. The judge has to decide if you are physically and mentally capable of performing the tasks required.

  2. In the majority of cases, in a Florida probate court, a personal representative also has to be a resident in the state. If the individual resides out of state, then he or she may not be approved for the position.

  3. To serve as a personal representative, the individual must be at least 18 years of age.

  4. Further, the individual must be physically fit and of sound mind to become a personal representative.

  5. Any person with a prior felony conviction cannot serve as a personal representative.

  6. A personal representative may also be an heir or a beneficiary.

  7. Before you have the legal authority to control any of the decedent’s assets, you will need to have the Letters of Administration reveal to the financial institutions and other custodians that you have been selected as the personal representative or executor of the estate. In some cases, banks may even ask for the death certificate of the decedent.


Responsibilities Of The Personal Representative


  1. Identify and secure the decedent's assets. The location of these assets must be identified, and an itemized inventory list prepared. The list of assets has to be submitted to the court and all the heirs.

  2. The most immediate step is to protect and secure the assets. For example, if you discover that the decedent had $200,000 in an investment, you need to ask the bank to freeze the account and prevent anyone from accessing it until the probate is over. Or, in some cases, the deceased may have a few cars. Your job is to take possession of these vehicles and prevent anyone from driving them. If you permit the sibling of the decedent to drive and he has an accident, the estate can be held liable, and you will no longer be allowed to be an executor of the will.

  3. You must keep a record of every bank statement, expenses, all taxes, interest on savings, etc. The court will ask for these documents. You will also need to call Social Security and any other pertinent pension agencies to tell them to stop sending checks to the decedent. If these checks arrive, you are not supposed to deposit them in the decedent’s account but send them back.

  4. The next step is to identify all lien holders and creditors to whom the decedent owed money. The personal representative has to make a meaningful search to look for the creditors and notify them in writing that the estate is open. The judge will, in all probability, ask what attempts you have made to contact the creditors if you come up with no names.

  5. The personal representative must identify all valid debts and, at the same time, dispute any bogus claims. Once the estate is settled, all the valid debts must then be paid in their entirety by the personal representative.

  6. After the probate process is over, the personal representative must file taxes for the decedent and pay off any outstanding taxes. You will need to hire an accountant who has experience in dealing with estate tax. If you do not pay the taxes, the IRS will most definitely come after you.

  7. The personal representative is responsible for paying all the administrative, lawyer, and court fees that incur during the probate. These fees are usually deducted from the estate.

  8. In almost all cases, the lien holders and creditor fees are paid out first, and then the remainder of the assets are distributed among the beneficiaries.

  9. Once the judge gives permission, the personal representative will distribute the remaining estate to the beneficiaries morally and ethically. There can be no pressure, coercion, or duress on the heirs when distributing the assets. For example, the personal representative cannot give less money to one of the heirs than what was stated in the probate court’s assessment.

  10. Once the assets have been distributed, the final task for the personal representative is to close the estate and the probate process.


If the personal representative mismanages the estate, he or she can be held liable for any damages caused to the beneficiaries of the estate. For example, if the decedent had a home worth $1 million, he/she cannot just sell it for $500K. The personal representative has to discuss this with the beneficiaries and the court before making final sales arrangements.


Conclusion


Suppose you have been selected to become an executor or a personal representative of the decedent’s will and have very little idea what you are supposed to do. In that case, the best recommendation is to consult with an estate lawyer. Florida personal representative qualifications include knowing the many legal nuances that one has to follow in the probate process. The duties of a personal representative in Florida are many.


One can easily get confused and, therefore, it is recommended and, in fact, in Florida, it is legally required to retain the services of a lawyer. These professionals can guide you and even act on your behalf in probate court. It is difficult to estimate how long the probate process can take but expect the duration to be anywhere from 4-9 months, if not longer in complicated instances. Contact us today for more information.

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