Posted By Larry Tolchinsky on September 16, 2015
In Florida, when a person passes away owning property within the state, that person leaves behind a “probate estate.” Florida law requires that someone be appointed the estate’s “personal representative” (in other states sometimes referred to as an executor, executrix, administrator or administratrix).
The personal representative can be an individual, such as a family member or close friend of the decedent, or it can be a bank or a trust company. As long as they are over the age of 18 years, a resident of Florida, or, regardless of their residence, the spouse, sibling, parent, child, or other close family relative of the person who has passed away, they can be entrusted with this important job and the duties and responsibilities that come with it.
Taking on the Appointment
Personal representatives are officially officers of the court. They are issued Letters of Administration by the probate judge to use as proof of their actual authority to act on behalf of the estate. In some instances, they must secure a bond. Furthermore, if the personal representative knows, or discovers later in the process, that he or she isn’t qualified to serve as the estate’s representative, then he or she has a duty to resign immediately. See, e.g.:
Florida Statute 733.3101 Must Resign if Not Qualified – a personal representative shall resign immediately if the personal representative knows that he or she was not qualified to act at the time of appointment. Any time a personal representative, who was qualified to act at the time of appointment, knows that he or she would not be qualified for appointment if application for appointment were then made, the personal representative shall promptly file and serve a notice setting forth the reasons.
Florida Statute 733.406 Pay Bond Premium – a personal representative required to give bond shall pay the reasonable premium as an expense of administration.
Florida Statute 733.5036 File Final Accounting Upon Resignation – a resigning personal representative shall file and serve a final accounting of the personal representative’s administration.
Florida Statute 733.508 Accounting and Discharge Upon Removal. A removed personal representative shall file and serve a final accounting of that personal representative’s administration.
Florida Statute 733.509 Surrender of Assets Upon Removal.—Upon entry of an order removing a personal representative, the removed personal representative shall immediately deliver all estate assets, records, documents, papers, and other property of or concerning the estate in the removed personal representative’s possession or control to the remaining personal representative or successor fiduciary.
Florida Statute 733.602 Standard of Care. A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.
Florida Statute 733.603 When to proceed With Settlement and Distribution. – A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified by the code or ordered by the court, shall do so without adjudication, order, or direction of the court.
Responsibilities of a Florida Personal Representative
1. Identifying and Locating Estate Property
The personal representative has the job of finding, identifying, protecting, storing, and establishing the value of all estate assets. He or she also has to send out a “Notice of Administration” that gives details on how the estate is going to be administered under Florida law and what someone should do who has an objection to it.
Florida Statute 733.212 Serve Notice of Administration – requires the personal representative to promptly serve a copy of the notice of administration on specific persons who are known to the personal representative, including the decedent’s surviving spouse, beneficiaries, the trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103, and persons who may be entitled to exempt property.
Florida Statute 733.604 Furnish Inventories and Accountings. Upon written request to the personal representative, a beneficiary shall be furnished a written explanation of how the inventory value for an asset was determined, or, if an appraisal was obtained and a copy of the appraisal.
Florida Statute 733.6065 File Safety Deposit Box Inventory – Opening safe-deposit box. Subject to the provisions of s. 655.936(2), the initial opening of a safe-deposit box that is leased or coleased by the decedent shall be conducted in the presence of any two of the following persons: an employee of the institution where the box is located, the personal representative, or the personal representative’s attorney of record. Each person who is present must verify the contents of the box by signing a copy of the inventory under penalties of perjury. The personal representative shall file the safe-deposit box inventory, together with a copy of the box entry record from a date…
Florida Statute 733.607 Take Possession of Decedent’s Property. Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead. The personal representative shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it.
The personal representative has the job of publishing a Notice to Creditors in the newspaper to let those who have a right to be paid for debts incurred by the decedent can file their claims with the estate. The personal representative also has to track down “reasonably ascertainable” creditors and let them know the time frame for filing their claims for payment. If there are claims that don’t seem right, the personal representative has to challenge them and even file an “adversary proceeding” lawsuit if necessary.
Florida Statute 733.2121 Serve Notice to Creditors – requires, unless creditors’ claims are otherwise barred by s. 733.710, the personal representative shall promptly publish a notice to creditors. The notice shall state that creditors must file claims against the estate with the court during the time periods set forth in s. 733.702, or be forever barred. The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors.
If a decedent at the time of death was 55 years of age or older, the personal representative shall promptly serve a copy of the notice to creditors and provide a copy of the death certificate on the Agency for Health Care Administration within 3 months after the first publication of the notice to creditors, unless the agency has already filed a statement of claim in the estate proceedings.
Florida Statute 733.608 Provide an Estoppel Of The Balance of Debt When Requested. Within 14 days after receipt of the written request of any interested person, the personal representative shall deliver to the requesting person at a place designated in the written request an estoppel letter setting forth the unpaid balance of the debt secured by the lien referred to in this section. After complete satisfaction of the debt secured by the lien, the personal representative shall record within 30 days after complete payment, a satisfaction of the lien in the official records of the county where the property is located.
Florida Statute 733.701 Notifying Creditors.—Unless creditors’ claims are otherwise barred by s. 733.710, every personal representative shall cause notice to creditors to be published and served under s. 733.2121.
Florida Statute 733.705 Payment of and Objection to Claims. The personal representative shall pay all claims within 1 year from the date of first publication of notice to creditors, provided that the time shall b… Interest shall be paid by the personal representative on written obligations of the decedent providing for the payment of interest. On all other claims, interest shall be allowed and paid beginning 5 months from the first publication of the notice to creditors.
The personal representative has to pay any taxes due and owing as well as prepare and file final tax returns for the estate. See, e.g.: Florida Statute 733.817 Apportion Estate Taxes. If the personal representative or fiduciary does not have possession of sufficient property otherwise distributable to the recipient to pay the tax apportioned to the recipient, whether under this section, the Internal Revenue Code, or the governing instrument, if applicable, the personal representative or fiduciary shall recover the deficiency in tax so apportioned to the recipient..
4. Getting Help
It’s up to the personal representative to get the expert help he or she needs to get the job done. Certified public accountants may be needed for the taxes; appraisers may be needed to put values on the property; lawyers may be needed to deal with creditor claims; etc.
5. Paying Debts
Once debts have been confirmed as valid, the personal representative has to pay them. The personal representative also has the job of paying the expenses that are incurred during the estate administration. See, e.g.: Florida Statute 732.2145 Duty to Collect Contribution; Florida Statute 733.707 Pay Expenses and Obligations in a Certain Order. The personal representative shall pay the expenses of the administration and obligations of the decedent’s estate in the following order ….
6. Distributing the Estate Assets
Once the creditors have been dealt with, the personal representative has the task of paying the amounts required by statute and by the provisions of the Last Will and Testament to the widow or widower as well as the other family members and beneficiaries. See, e.g.:
Florida Statute 733.801 Time Frame to Deliver Devises and Distributive Share of The Estate. No personal representative shall be required to pay or deliver any devise or distributive share or to surrender possession of any land to any beneficiary until the expiration of 5 months from the granting of letters. Except as otherwise provided in the will, the personal representative shall pay as an expense of administration the reasonable expenses of storage, insurance, packing, and delivery of tangible personal property to a beneficiary.
Florida Statute 733.815 Honor Private Contracts Among Interested Persons.—Subject to the rights of creditors and taxing authorities, interested persons may agree among themselves to alter the interests, shares, or amounts to which they are entitled in a written contract executed by them. The personal representative shall abide by the terms of the contract, subject to the personal representative’s obligation to administer the estate for the benefit of interested persons who are not parties ….
7. Closing the Estate
After the debts have been paid and the assets distributed, the personal representative must finalize the legal “closing” of the estate. See, e.g.:
733.901 Final discharge.— (1) After administration has been completed, the personal representative shall be discharged; (2) The discharge of the personal representative shall release the personal representative and shall bar any action against the personal representative, as such or individually, and the surety.
Personal Representatives and Probate Litigation
Not only should a personal representative have an experienced Probate attorney to help them maneuver through all the twists and turns of administering a Florida probate estate, beneficiaries and creditors may also benefit from the advice of a Florida probate lawyer on how best to deal with probate matters.
This is especially true if there is a suspicion that a Florida personal representative has violated their legal duties in the administration of the estate. The personal representative may be responsible for legal claims based upon intentional misconduct as well as mistakes or errors they have made.
For more information check out our probate litigation page.
Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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