Administering Florida Estates – The Job of the Personal Representative
Personal Representatives of Florida estates are officers of the court relied upon to achieve three principle ends:
1)Pay Estate Debts;
2)Distribute Estate Assets to Beneficiaries and Heirs;
3)Litigate on behalf of the Estate.
In administering the estate of a decedent, the personal representative is bound by fiduciary duty to the estate beneficiaries, and required by the court to file paperwork through an attorney. Below is a thorough breakdown of the specific qualifications and procedural tasks associated with serving as a Personal Representative in Florida:
Becoming Personal Representative
If a decedent left a Will, the person nominated therein will have preference to serve as personal representative. If a decedent had no will, Florida Statute 733.301 provides that the decedent’s spouse is given preference, followed by the person nominated by the majority of heirs, followed by the closest relative.
The proposed personal representative must file a Petition for Administration with the Circuit Court, and take an oath to lawfully administer the estate. If the personal representative is accepted, they are issued Letters of Administration which give power over all of the decedent’s assets.
Courts sometimes require that a Personal Representative pay a bond. Per Florida Statute 733.406 , a personal representative required to give bond shall pay the reasonable premium as an expense of administration. Our firm typically requests that bond be waived, but certain counties strictly require a bond.
Administering the estate
- Serve Notice of Administration
Florida Statute 733.212 requires the personal representative to promptly send out a “Notice of Administration,” which 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. The personal representative must serve a copy of the notice of administration on specific interested 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.
- Take Inventory
The personal representative has the job of finding, identifying, protecting, storing, and establishing the value of all estate assets. Florida Statute 733.604. A copy of the inventory must be served on interested persons and, upon written request, a beneficiary must also be provided a written explanation of how the inventory value was determined, including copies of any appraisals if applicable.
- Properly Open Safe Deposit Box
There are specific requirements to take inventory of contents in a safe deposit box leased, or co-leased by the decedent. Florida Statute 733.6065. Namely, the safe-deposit box must be opened in the presence of 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. Within 10 days of taking inventory, the personal representative must file the safe-deposit box inventory, along with a copy of a box entry record from a date which is 6 months prior to the date of inventory.
- Secure Property of the Decedent
Florida Statute 733.607 charges the personal representative with possession and control of the decedent’s property. The personal representative must act reasonably to manage, protect, and preserve assets of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it. It is important to note that the personal representative must relinquish control and possession of real property determined by court order to have homestead status.
- Serve Notice to Creditors
Every personal representative must notice creditors under s. 733.2121, unless claims are barred by s. 733.710. Florida Statute 733.701. 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, file their claims with the estate. Florida Statute 733.2121. 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 do not seem right, the personal representative has to challenge them by filing an objection.
The statute also requires: 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 733.2121
- Payment of Claims
Estate assets must be used to satisfy all claims that are not successfully objected to. Generally, the personal representative shall pay all claims within 1 year from the date of first publication of notice to creditors. Florida Statute 733.705.
It is the personal representatives responsibility to file final tax returns for the estate. Florida Statute 733.817. Depending on the size and complexity of the estate, as well as the skill set of the personal representative, it may be advisable to call in an expert to assist in this process. 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.: 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..
It is within the personal representative’s discretion to hire experts to assist him or her in fulfilling his or her fiduciary duties. Often, contentious estates will require the use of appraisers to verify values of property. Whereas an estate with tax issues, may require the personal representative to hire a Certified Public Accountant. Similarly, it may be necessary to have more than one law firm involved – a probate attorney to handle the estate administration, and a personal injury attorney to pursue a wrongful death claim or finalize an unsettled personal injury claim.
Distributing the Estate Assets
- Deliver Devises and Distributive Share of the Estate
Once the personal representative has paid valid creditors and expenses of administration (including attorney’s fees, costs, and reasonable expenses of storage, insurance, etc.), distribution can be made to beneficiaries or heirs. The personal representative must make distribution according to the provisions of the decedent’s Last Will and Testament. If the decedent did not have a will, then the personal representative must make distribution to the persons entitled by Florida statute. Florida Statute 733.801.
- Honor Private Contracts Among Interested Persons
Interested persons have the right to alter their interests, shares, or amounts of entitlement to estate assets by written contract, subject to the rights of creditors and taxing authorities. The personal representative has an obligation to honor these written agreements, per Florida Statute 733.815.
Closing the Estate
Now that the personal representative has properly accounted for estate assets, paid valid creditors, settled pending litigation, and distributed estate property to the appropriate beneficiaries or heirs, the estate may be closed. Failure to complete this final step prevents the personal representative from being relieved of liability. Florida Statute 733.901.
Personal Representatives and Probate Litigation
Wrongful death cases and other claims made on behalf of an estate, are spearheaded by the personal representative. The personal representative is responsible for retaining attorneys, accepting settlements, and signing pleadings on behalf of the estate.
If you have a question about probate, call us today at 352-354-2654.