What is a Personal Representative, and What Does the Personal Representative Do?
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. The term “personal representative” is used in Florida instead of such terms as “executor, executrix, administrator, and administratrix.” The personal representative has a legal duty to administer the probate estate according to Florida law. The personal representative must:
- Identify, gather, value, and safeguard the decedent’s probate assets.
- Publish a “Notice to Creditors” in a local newspaper to notice potential claimants to file claims in the manner required by law.
- Serve a “Notice of Administration” to provide information about the probate estate administration and procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
- Conduct a diligent search to locate “known or reasonably ascertainable” creditors and notify these creditors of the time by which their claims must be filed.
- Object to improper claims, and defend suits brought on such claims.
- Pay valid claims.
- File tax returns and pay any taxes properly due.
- Employ professionals to assist in administering the probate estate, for example, attorneys, certified public accountants, appraisers, and investment advisers.
- Pay expenses of administering the probate estate.
- Pay statutory amounts to the decedent’s surviving spouse or family.
- Distribute probate assets to beneficiaries.
- Close the probate estate.
Suppose the personal representative mismanages the decedent’s probate estate. In that case, the personal representative may be liable to the beneficiaries for any harm they may suffer.
WHO CAN BE A PERSONAL REPRESENTATIVE?
The personal representative can be an individual or a bank or trust company, subject to certain restrictions. 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 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 younger than 18, 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 serve as the personal representative.
WHOM WILL THE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE?
If the decedent had a valid Will, the judge will appoint the person or institution named by the decedent in that Will to serve as personal representative, as long as the named person or bank or trust company is legally qualified to serve.
If the decedent did not have a valid Will, the surviving spouse has the first right to be appointed by the judge to serve as a personal representative. If the decedent was not married at the time of death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the judge will appoint a personal representative after a hearing is held for that purpose.
WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.
The attorney for the personal representative advises the personal representative on the rights and duties under the law and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.
A provision in a Will mandating that a particular attorney or firm be employed as the attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.
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