What are a Personal Representative’s Responsibilities in Florida?
When a Florida resident or someone who owned real estate in Florida dies, any probate assets they owned are subject to Chapters 731 through 735 of the Florida Probate Code. Probate assets are any assets owned in the decedent’s name alone at the time of death, without joint owners or beneficiaries. In most cases, such assets must go through probate administration in the Florida court system before they can be distributed to heirs.
What is a Personal Representative?
As part of the probate process, the court appoints someone to act as the Personal Representative for the estate (also sometimes referred to as an “executor” or “administrator.”) If the deceased person left a valid Will nominating someone as their Personal Representative, and if that person or organization is willing and able to serve, the judge will likely appoint them.
If there was no valid Will, the court will look to appoint one. An individual who is a Florida resident, or someone who is the decedent’s spouse, sibling, parent, child, or otherwise has a close family relationship with the deceased person – regardless of state of residence – may be appointed. However, in order to serve as Personal Representative, an individual must be physically and mentally able to perform their duties, must be at least 18 years old, and must not have a felony conviction on their record.
What Do Personal Representatives’ Duties Entail?
The Personal Representative, which can be an individual, a bank, or a trust company incorporated under Florida law, is legally responsible for following Florida law in administering the estate. Personal Representatives are required to act expeditiously and efficiently, and must act in the best interests of the estate at all times.
If you have been designated as a Personal Representative in a loved one’s Will, or if a probate judge has appointed you to serve in that capacity, here are the things you are responsible for:
- Safeguard assets. During administration, you are charged with identifying the decedent’s assets, valuing them, and keeping them safe. For things like real estate and vehicles, you (on behalf of the estate) should generally maintain insurance coverage during administration. And, if there is an outstanding mortgage or auto loan, the Personal Representative must continue making payments on behalf of the estate during administration. When the court appoints a Personal Representative, they issue a legal document that the Personal Representative can then provide to financial institutions to effectively assume control over the decedent’s accounts and assets for purposes of administering the estate.
- Apply for death benefits. The Personal Representative should contact the Social Security Administration and, if the decedent was a veteran, the Veteran’s Administration, to apply for any survivor benefits or death benefits the estate may be entitled to receive.
- Notify creditors. The Personal Representative is responsible for notifying creditors of the decedent’s death – both known creditors and unknown creditors. This involves conducting reasonable due diligence to notify creditors of the proceeding and publishing a notice in a legal newspaper so potential claimants have an opportunity to submit claims for payment within the time periods prescribed by Florida law. The Personal Representative is not personally responsible for paying the estate’s debts if the estate is administered appropriately.
- Notify interested parties. In addition to notifying creditors of the deceased person’s passing, you are also responsible for serving a “Notice of Administration” on anyone who is a potentially interested party in the estate administration. The notice includes information about how anyone with objections can raise those issues with the court.
- Evaluate and manage claims. When a claim for payment is brought against the estate, it is the Personal Representative’s responsibility to evaluate the merits of the claim. When a claim is deemed valid, the Personal Representative must pay it. If the Personal Representative believes a claim is improper, they are responsible for objecting to it and defending any related litigation. The Personal Representative may need to sell estate assets to create liquidity and raise cash for the payment of debts and other expenses.
- Manage tax obligations. The Personal Representative is also responsible for ensuring the estate’s tax returns are filed, and that tax obligations are paid. This includes individual income taxes filed for a decedent, estate income taxes, as well as gift taxes and Federal estate taxes, if applicable. Florida does not have a state estate tax, but the estate may be subject to Florida intangibles tax obligations.
- Engage professionals to assist as needed. Personal Representatives typically rely on appraisers, tax professionals, accounting specialists, investment advisers, and licensed attorneys to ensure asset valuation, tax responsibilities, claims, and other aspects of probate administration are handled appropriately. These professionals’ fees typically come from the estate as expenses of administration, rather than being the responsibility of the Personal Representative individually.
- Make distributions to heirs and beneficiaries. After paying final expenses such as the costs of a funeral and burial or cremation, valid creditors’ claims, and the expenses of administration, including court fees, publication fees, and fees for professional services such as those described above, the Personal Representative is responsible for distributing assets to those who are entitled to them. This includes paying the decedent’s surviving spouse and family the amounts specified in Florida probate statutes and distributing remaining probate assets to heirs and beneficiaries. While heirs and beneficiaries are often anxious to receive their share of estate assets, Personal Representatives are not obligated to make any such distributions within the first five months after the probate court issues Letters of Administration to the Personal Representative.
- Close the estate. When the Personal Representative believes they have fully administered the decedent’s estate, they are responsible for closing probate administration with the courts by filing a Petition for Discharge and filing inventories with the Florida Department of Revenue, the decedent’s surviving spouse, heirs, beneficiaries, and with interested parties requesting copies of the inventory. Personal Representatives must maintain accurate and detailed records of their actions, accounting for assets received and distributed by the estate. Doing so can protect the Personal Representative from liability.
What About Non-Probate Assets?
The Personal Representative’s responsibilities generally extend only to probate assets. Non-probate assets, those which the decedent owned with someone else as joint tenants or those for which one or more beneficiaries was named, are outside the scope of probate administration. However, such assets need to be identified and valued for purposes of determining the estate’s tax obligations.
Some non-probate assets may also be used to satisfy estate expenses and creditors’ claims, under Florida law. If the decedent had a revocable trust, the Personal Representative must file a “Notice of Trust” with the clerk of court, to make the decedent’s creditors aware of the trust and of their potential rights.
Note that if the deceased person named their “estate” as their beneficiary on life insurance policies, retirement accounts, or other assets, then the asset becomes a probate asset, subject to estate administration as described above.
Do I Need to Hire a Probate Attorney?
In most cases, yes. Florida probate law requires that Personal Representatives be represented by an attorney who is certified under the Florida Bar unless the Personal Representative is the sole interested party in the proceeding, or the Personal Representative is an attorney himself or herself.
Probate proceeding can be complex and unanticipated legal issues can – and often do – arise. Working with a skilled Florida probate attorney can help remove much of the stress that can come with serving as Personal Representative. A probate attorney typically represents the Personal Representative in his or her capacity and can assist with many of the steps identified above. Your attorney will also help you understand your responsibilities under the law.
Sometimes, a decedent’s Will names a particular attorney or law firm, specifying the decedent’s wish that such attorney or firm be used to administer the estate. However, the Personal Representative is not required to follow this direction and is free to use any licensed attorney.
To learn more and to schedule a meeting with an experienced probate attorney, contact us today!