In Florida, every probate estate must have a representative. A legal personal representative is obligated to administer the estate pursuant to the laws of Florida. An estate representative can be an individual, a private entity, or a bank. Unless a decedent names a representative in his or her will, the decision of which person or entity will serve in this role is made by the probate court judge; however, even when a person names a representative in his or her will, the judge overseeing the probate process still must decide whether the individual or entity named can serve as personal representative after death of the decedent. In this article, we examine the role of a personal representative of an estate in the Florida probate process.
Probate in Florida
Before discussing the role of an estate’s representative in the Florida probate process, it is first necessary to understand what probate is and how the probate process works. Probate is a court-supervised process in which a decedent’s assets are identified and gathered, his or her outstanding debts are paid, and his or her assets are distributed to beneficiaries. Florida offers two primary types of probate: summary administration and formal administration. Summary administration is a simplified form of probate that is an option when a decedent has been dead for over two years and the decedent’s creditors are barred from recovering from his or her probate estate. Estates that don’t meet these requirements generally go through formal administration, which is Florida’s traditional form of probate.
Description of a Personal Representative’s Authority and Duties
Formal administration in the state of Florida requires the appointment of a personal representative after death. Estate representatives in Florida have the following duties:
- Identify, collect, appraise, and protect all assets of the probate estate
- Publish a notice to creditors
- Serve an administration notice
- Conduct a search to locate all the decedent’s creditors and notify them of the time by which they are required to file claims against the decedent’s estate
- Object to improper claims and defend legal actions brought pursuant to such claims
- Pay all valid claims
- File required tax returns
- Pay any taxes owed by the estate
- Hire professionals to assist with the administration of the estate, such as attorneys, appraisers, investment advisors, and certified public accountants
- Pay all expenses and fees related to administering the probate estate
- Pay all amounts owed pursuant to Florida law to the decedent’s surviving spouse or family
- Distribute the estate’s assets to the decedent’s beneficiaries
- Close the estate
How to Qualify as the Representative of an Estate
The representative of an estate in Florida may be a person, a bank or savings and loan that is authorized to exercise fiduciary powers in Florida, or a trust company incorporated under the laws of Florida. To qualify as the personal representative of an estate, the prospective representative must be a resident of the state of Florida or a spouse, sibling, child, parent, or other close relative of the decedent. A person who is neither a resident of the state of Florida nor a close relative of the decedent may not serve as a representative of the decedent’s estate. In addition, a person may not serve as an estate’s representative if he or she is under the age of 18, mentally or physically unable to perform his or her required duties, or a convicted felon.
Appointment of a Representative
When a person dies with a will, the probate court judge will appoint the person or entity named in the will to serve as the legal personal representative of the estate if the person or entity meets the qualifications above. If a person dies without a valid will in place, however, his or her surviving spouse has the right to serve as the representative of the decedent’s estate. If the deceased individual was not married at the time of his or her death, or if his or her surviving spouse does not want to serve as representative of the estate, then the person or entity chosen by the majority of the decedent’s heirs has the right to serve in the role of representative; however, if the decedent’s heirs can’t come to an agreement regarding who should serve as the estate’s representative, the judge will make this decision following a hearing on the matter.
Removal of a Representative
If an estate’s personal representative behaves in a manner that is improper or otherwise fails to fulfill his or her duties under Florida law, then he or she can be removed from the role of representative. To remove the representative of an estate, a party must file a petition with the probate court. The process for removing a representative from his or her role is similar to other types of civil action in Florida.
Grounds for Removal
In Florida, a representative of an estate can be removed if the person in the role was not qualified to act at the time of appointment. Florida law identifies several grounds for the removal of a representative. The grounds to remove the representative of an estate in Florida are as follows:
- Failure to comply with a court order unless the court order has superseded or overturned on appeal
- Failure to account for the sale of estate assets or to produce estate assets when so required
- Physical or mental incapacity that renders the representative incapable of performing his or her duties
- Adjudication that the representative is incapacitated
- Wasting or maladministration of the estate
- Failure to give bond or security
- Conviction of a felony
- Appointment of a liquidator or receiver for, or insolvency of, any corporate representative
- Acquisition or possession of conflicting or adverse interests against the estate that interfere with the administration of the estate; however, this cause for removal does not apply to a surviving spouse due to the exercise of the right to an estate’s elective share, family allowance, or exemptions as provided pursuant to Florida law
- Revocation of the will that authorized or designated the appointment of the representative
- Removal of Florida domicile if Florida domicile was a requirement of the representative’s appointment
- The estate’s representative is no longer entitled to appointment
Common Reasons for Removal
Although there are a number of grounds that can result in the removal of a representative, such actions generally fall into one of two categories:
- Waste, theft, or mismanagement of funds
- Conflicts of interest
As to the first category, this occurs when an estate representative wastes, steals, or mismanages funds. If a representative takes any of these actions, whether intentionally or due to negligence, he or she may be removed from his or her role as representative of the estate. And when determining whether a conflict of interest should result in the removal of a representative, the degree of the conflict must be assessed. Generally, the more serious the conflict, the more likely the representative should be removed from his or her position; however, if a representative has interests that are adverse to the estate in certain limited areas, Florida law permits the probate court to appoint an individual called an administrator ad litem to oversee these issues, thereby allowing the representative to remain in his or her position.
Further, conflicts occasionally arise between the beneficiaries of an estate and the representative of the estate. Although such conflicts are an express reason for removal in Florida, courts have discretion to determine whether removal is appropriate in such situations. Therefore, whether a representative should be removed when a conflict exists with beneficiaries is assessed on a case-by-case basis by the court.
The Importance of Legal Representation as a Personal Representative
The probate process is extremely complicated. Difficult legal issues routinely arise during probate, and such issues can be difficult to resolve without a deep knowledge of probate law. Therefore, for an estate representative, competent legal representation is a must. In addition to assisting with complicated legal issues, an experienced Florida probate administration attorney will advise the representative of his or her rights and duties under the law and represent him or her in all probate estate proceedings.
Contact a Probate Administration Attorney
If you have been named the legal personal representative of an estate and need assistance with the probate administration process in Florida, Upchurch Law is here to help. At Upchurch Law, knowledgeable and experienced Florida probate administration attorney Thomas Upchurch is available to assist with all your Florida probate and estate administration needs. When you become our valued client, we will help you identify estate assets, provide legal notice to creditors of the probate estate, work with creditors to pay off the estate’s outstanding debts, and distribute estate assets to the proper beneficiaries. Upchurch Law services the Central Florida and North Florida areas, including Daytona Beach, Port Orange, Ormond Beach, Orlando, Deland, Jacksonville, Tampa, St. Petersburg, Palm Coast, Saint Augustine, and Titusville. Please contact us today to schedule a free consultation with our experienced and talented Florida estate administration lawyer.
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