What is a Personal Representative in Probate Court?

Sep 24, 2021 | Uncategorized

What is involved in choosing a personal representative? In Florida and many other states, the personal representative is also referred to as the executor. This individual is often named in the will to manage and administer the estate after the decedent’s death (the person who made the will). The primary role of the personal representative is to be in charge of the administrative process for the Florida probate court.

This means taking control of the decedent’s estate, paying all creditors, paying any taxes owed, and ensuring that any remaining estate is distributed legally to the rightful beneficiaries. The one important characteristic of a personal representative is that they should have the best interest of the estate, the creditors, and beneficiaries in mind at all times.

How Does One Select a Personal Representative?

  1. To be a personal representative, one does not have to have any special qualifications or legal knowledge. Many times the personal representative is an adult child or a spouse.
  2. The key criteria to becoming a personal representative include having 1) common sense, 2) honesty, 3) reliability, 4) trust, 5) availability and 6) fairness.
  3. In many cases, a personal representative will hire a lawyer or an accountant to help guide them through the probate process and pay them from the estate’s assets.
  4. The individual selected as a personal representative has to be organized and have good communication skills.
  5. If you have no spouse or children, you may select a friend, acquaintance from work, or someone you trust. It is important to find someone who has some idea about your finances and can collect all the relevant essential documents and records when needed.
  6. Many individuals select a personal representative who is also a person named as a beneficiary. This way, the individual is more likely to do a good job in managing and administrating your estate after your death, as directed. For example, a parent may select the oldest adult child to be a personal representative.
  7. When a personal representative is selected, the individual does have the right to refuse or may resign at any time. This is perfectly acceptable. Hence, in many cases, an alternate representative is usually named in the will who can take over if the first individual declines the responsibility.

Who Can Be a Personal Representative?

Every state has its own rules and regulations on the criteria for a personal representative. In Florida, for someone to be a personal representative, the individual has to meet the following requirements:

  1. Be at least 18 years of age
  2. Be a resident of Florida at the time of the death of the decedent
  3. Be physically and mentally sound

Who Cannot Be a Personal Representative?

  1. The individual is less than 18 years of age
  2. Any individual with a prior conviction of a felony
  3. An individual who is physically and/or mentally impaired
  4. An individual who did not reside in Florida at the time of death of the decedent

Is a Lawyer Necessary for Probate?

In most cases, in the State of Florida, the probate court will require that the personal representative hire an attorney to ensure that everything is done legally and that protocol is followed. The attorney will be reimbursed for the assets of the estate. However, the exact fee will be negotiated between the personal representative and the lawyer. To ensure that the lawyer does not overcharge, the probate court has set a schedule of fees that are presumed to be reasonable.

Does the Personal Representative Get Paid?

According to Florida law, the personal representative is entitled to compensation for the service they provide. The fee is usually deducted from the estate assets. The fee is generally based on the value of the estate assets and the eventual income after all the creditors and taxes have been paid. Again, similar to the lawyer fees, Florida law has set a subdue of fees that are presumed to be reasonable. In general, the fee rate is 3% for the first $1 million of probate assets.

What is the Hierarchy in Selecting a Personal Representative?

When a decedent has left a valid will, the probate court will take the following steps in order of preference for a personal representative:

  • An individual named in the will.
  • An individual is selected by the majority of people (beneficiaries). For example, if there are five siblings, they may elect to vote for one sibling to be the representative.
  • An unrelated individual who is also a beneficiary.

If there is no will, the selection of the personal representative will depend on the judgment of the probate court to appoint one individual in the following order of preference:

  • Surviving spouse
  • The individual selected by the majority of beneficiaries
  • The beneficiary with the closest relationship to the decedent

Final Point

When considering how to go about choosing a personal representative, several factors should cross your mind. No matter who is selected as a personal representative, the individual must have some idea of how to perform a search for the decedent’s assets and property. In today’s digital world, some knowledge about computers and the internet may be useful.

Hence, you might choose someone young who may be familiar with these technologies as it can expedite the process. Most importantly, you should choose someone you trust. Finally, work with a knowledgeable probate lawyer that can guide you on the Florida probate court process. Contact us today!

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