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Why a Personal Representative Should Have Legal Assistance


In Florida, every estate that goes through the probate process must have a representative. That representative may be an individual, a bank, or a private entity. In many cases, a person names a representative in his or her will. However, if a decedent fails to designate an estate representative in his or her will, the probate court judge will determine who fills this role. Except for cases in which an estate’s representative is the sole interested person in a probate proceeding, every estate representative in Florida is required by law to be represented by an attorney. Aside from this requirement, however, there are multiple reasons why every representative should have legal assistance. 

Probate in Florida

Before examining the importance of legal assistance during the probate process, it is first necessary to review how the probate process works in Florida. The probate process entails the gathering and identification of a decedent’s assets, the payment of a decedent’s outstanding debts, and the distribution of a decedent’s assets to his or her beneficiaries. There are two main types of probate in the state of Florida: summary administration and formal administration. Summary administration is available when a decedent has been dead for more than two years, and his or her creditors are barred from recovering from his or her probate estate. Estates that fail to meet these requirements usually go through formal administration, which is Florida’s traditional probate process. Most estates in Florida go through the formal administration process. 

The Necessity of Legal Assistance

As noted above, in Florida, every representative, unless he or she remains the sole interested person in a probate proceeding, must be represented by an attorney admitted to practice in the state of Florida. Even in those rare cases in which legal representation is not required by law, legal assistance is highly recommended. 

There are many reasons that representatives need legal assistance in Florida. It is common for complicated legal issues to arise during the probate process. Without the assistance of an experienced probate attorney, addressing such issues can be difficult, if not impossible. For example, if the estate faces one or more legal claims from beneficiaries or other parties, the representative must be prepared to address such legal challenges. In addition, representatives have many responsibilities, including meeting deadlines, complying with statutory directives, and fulfilling numerous other requirements. Keeping track of these responsibilities can be difficult, and estate representatives who make mistakes during the probate process can face liability from heirs and beneficiaries. 

When the representative of a probate estate has legal representation, however, his or her risk of personal liability declines considerably. By taking the guesswork out of the Florida probate process, an experienced Florida probate attorney can substantially lower the risks faced by a representative. On the other hand, representatives who forgo legal assistance during the probate process take a major risk. Given the number of potential pitfalls in the probate process, the odds of avoiding mistakes without the assistance of an attorney are slim to none. Therefore, it is highly recommended that all estate representatives in the state of Florida seek legal assistance before beginning the probate process. 

Contact a Probate Administration Attorney

If you have been named the representative of a decedent’s estate in Florida, you need an experienced estate litigation lawyer on your side. At Upchurch Law, experienced Florida probate administration attorney Thomas Upchurch is available to guide you through the Florida probate process. When you come to Upchurch Law for legal assistance, we will help you identify estate assets, provide notice to creditors of the estate, work with the estate’s creditors to pay off all outstanding debts, and distribute the estate’s assets to the correct beneficiaries. Upchurch Law serves central and northern Florida, including St. Petersburg, Deland, Daytona Beach, Port Orange, Ormond Beach, Orlando, Jacksonville, Tampa, Palm Coast, St. Augustine, and Titusville. If you are ready to begin the probate process, please contact us today to schedule a free consultation with our knowledgeable Florida estate litigation lawyer. 

Frequently Asked Questions (FAQ)

What is a personal representative?

A personal representative of an estate is the person or entity appointed by a probate judge to be responsible for the administration of a decedent’s probate estate. In Florida, the term “personal representative” is used instead of terms like “administrator,” “administratrix,” “executor,” and “executrix,” which are common in other states. An estate’s representative has a duty to administer the probate estate pursuant to Florida law.

What duties does a personal representative have?

Florida law imposes several duties on estate representatives, making legal assistance imperative for those representatives who lack a deep knowledge of Florida law and the probate process. In Florida, a representative must do the following: 

  • Identify, gather, value, and protect all estate assets 
  • Publish notice to creditors of the estate
  • Serve an administration notice
  • Attempt to locate the decedent’s creditors and notify them of the deadline by which they must file claims against the estate
  • Object to invalid claims 
  • Defend the estate against invalid claims 
  • Pay valid claims
  • File tax returns on behalf of the estate
  • Pay taxes owed by the estate
  • Hire professionals to assist with the administration of the probate estate, including appraisers, lawyers, investment advisors, and accountants
  • Pay all fees and expenses related to the administration of the probate estate
  • Pay all amounts owed pursuant to the decedent’s surviving spouse or family
  • Distribute the estate’s assets to proper beneficiaries
  • Close the estate

Who can be a personal representative?

The representative of a decedent’s probate estate can be an individual or an entity, such as a bank or trust company. For an individual to qualify to act as an estate representative, he or she must be either a resident of the state of Florida or a spouse, parent, sibling, child, or other close relative of the deceased individual. An individual who is not a resident of the state of Florida and is not closely related to the deceased individual is not permitted to serve as the representative of the decedent’s estate. In addition, an individual cannot serve as the representative of an estate if he or she is younger than 18 years old, is physically or mentally incapable of performing the required duties of a representative pursuant to Florida law, or has been convicted of a felony.

For entities, a trust company incorporated under the laws of Florida or a savings and loan or bank that is authorized and qualified to exercise fiduciary powers in the state of Florida is permitted to serve as the representative of an estate. 

How should a personal representative handle debts of the estate?

A personal representative of an estate is responsible for handling the debts of the estate. The debts of a deceased person ordinarily become debts of his or her estate. In other words, if a decedent dies with outstanding debts, the obligation to pay these debts passes along to his or her probate estate. The representative of the estate must take several actions in his or her official capacity related to these debts, including identifying creditors, publishing required notices, and making required payments. However, the representative is not personally liable for the debts of the estate.

If an estate has sufficient assets, the representative must pay the estate’s debts before taking certain other actions, such as distributing assets to beneficiaries of the estate. If an estate lacks the assets to pay its outstanding debts, the representative must pay creditors in order of priority as established by Florida law. If the representative of an estate follows the law when distributing available assets to the estate’s creditors, then he or she is not personally responsible for the debts. However, if he or she makes mistakes during this process, the representative can be held personally liable for such debts. 

In addition, if a representative distributes assets of the estate without first paying or otherwise resolving taxes owed to the state of Florida, he or she becomes personally liable for those unpaid taxes. Although a representative in this situation isn’t personally responsible for taxes in excess of the property of the estate, this is another example of the importance of legal assistance during the probate process. Similarly, a representative may be personally liable for federal tax obligations of an estate if he or she fails to properly prioritize those claims, making the assistance of legal counsel a necessity for representatives who wish to avoid personal liability. An experienced estate litigation lawyer can help ensure that the representative pays state and federal taxes, attends to debts in the proper order, and apportions the funds of the estate in an appropriate manner.

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