Selecting A Personal Representative For Your Estate

Selecting a personal representative is one of the first steps in creating an estate plan. It is important to choose the right person to work with the Florida probate court, administer your estate and get your assets to your beneficiaries. Here are some tips for selecting a personal representative, and what you should tell them before you die.

What the Probate Court Does

Probate is the court-monitored finalization of a deceased person’s financial affairs and the distribution of their assets. The Florida probate court oversees the process to make sure the right person is named executor or personal representative, and that they follow the law when it comes to creditors and heirs.

Without the probate court, it is often impossible to close out your loved one’s accounts or sell their property. That is because many bank staff, realtors, and other professionals will not let one person handle the affairs of another without a court order, even after that person is deceased. To get that court order called the Letters Testamentary or Letters of Administration, you will have to file a probate administration case in the county where your loved one lived or had property.

What Property is Covered in Probate

Probate administration applies to all the assets your loved one owned in their name only at the time of their death. That includes:

Houses and land (located in Florida)

Bank and investment accounts

Furniture and personal items

Life insurance, annuities, or retirement accounts payable to the deceased’s estate upon death

However, much of this property can be excluded from probate depending on how it was titled. Assets owned jointly between spouses (not as tenants in common), trusts with successor trustees, or accounts with named beneficiaries will pass automatically without the formality of a court proceeding. You and your estate administration attorney will need to look into how each asset was owned and titled to find out whether the court should be involved in the distribution of that asset.

3 Types of Florida Probate

There are 3 ways your loved one’s estate can go through probate. Which one applies to your case depends on the size of the estate, the types of assets included, and what kind of debts or credit accounts your loved one had at the time of their death.

Disposition of Personal Property Without Administration

This option avoids court supervision, but it is only available in limited circumstances where the deceased person owned no land or real property and his or her final medical bills and funeral expenses have been paid or consented to. In reality, this only applies to a very small number of estates which have minimal value. If you are hiring a probate attorney you will most likely need to use one of the more formal procedures described below.

Summary Administration

This option is a short-cut to full probate administration and avoids the appointment of a personal representative. In most cases, it is shorter, easier, and less expensive than formal administration. However, it is only available if:

The person died more than two years ago (meaning that creditor claims have expired), or

The value of the entire estate (minus exempt property including a Florida primary residence) is less than $75,000, and there are no creditors or provision is made for their payment.

Your probate attorney will help you file a petition demonstrating that the estate qualifies for summary administration. You and your lawyer will then need to send a copy of the petition to the beneficiaries, and if there are creditors, to all of your loved one’s creditors to arrange to pay their debts using the assets available within the estate. Once that is done, the probate court can order the distribution of all remaining assets without the additional formality of a full probate administration.

You and your lawyer will then need to send a copy of the petition to the beneficiaries, and if there are creditors, to all of your loved one’s creditors to arrange to pay their debts using the assets available within the estate. Once that is done, the probate court can order the distribution of all remaining assets without the additional formality of a full probate administration.

Formal Administration

Most Florida probate cases involve formal administration. It covers any situation that doesn’t qualify for one of the other probate options or that can’t be entirely resolved outside of court (such as a trust or jointly titled property). Formal administration involves close court-supervision as a deceased person’s assets are collected, valued, and distributed. It starts with a Petition for Administration and several related documents. Next, the Court will appoint a personal representative to act on behalf of the estate. If your loved one had a Will, it might name who this person should be, but they are not the official executor until they have received Letters of Administration.

Once the Letters of Administration are issued, it is up to the personal representative and their estate administration attorney to do the work of administering the estate. This can include:

Publishing a Notice of Creditors and sending it to all known creditors

Taking possession of the estate’s assets and managing them until they can be distributed (or documenting that they have been left with the apparent intended beneficiary under the Will)

Creating and filing an inventory of estate assets including the fair market value of each asset

Collecting any debts owed to the deceased (including suing debtors who refuse to pay)

Operating the deceased’s business

Maintaining investments as a prudent investor

Paying taxes and expenses

Hiring and paying experts and professionals to assist with the estate administration (i.e. accountants, realtors, or attorneys)

Identifying beneficiaries and any special exemptions or rights they may have

Paying or objecting to claims from creditors

Apportioning any estate taxes between beneficiaries (unless payment is directed in the Will)

After you have finished all the necessary steps, you and your probate attorney can file a petition to close the estate. The judge may ask for some additional information, but once all the questions have been answered, he or she will sign an Order of Discharge. This releases the personal representatives from his or her duties and brings the case to a close.

This entire process generally takes at least six months. Sometimes it can take years to resolve creditor claims or sell property. Having an experienced probate attorney by your side through the process makes it easier, less stressful, and makes sure everything is done properly to satisfy the court.

At Harrison Estate Law, P.A., our experienced estate and probate team can help you identify probate assets, select the right kind of probate administration, and complete the probate process. We will help you be sure your loved one’s wishes are honored and affairs are handled. Contact us here or call 352-306-3579 to get help today.

What a Personal Representative Does for Your Estate

While you are alive, you get to make all the decisions about what happens to your assets. You can decide to spend them on your own needs and comforts, or pass them on to your loved ones. You don’t need any special authority because you are the one who owns the property.

After you pass away, your estate can’t act on its own, and the banks and companies you used to work with won’t automatically share your information with your next of kin. A personal representative is legally appointed by the Florida probate court to act on the estate’s behalf. Once appointed, the personal representative is the spokesperson for your estate, working with banks, realtors, creditors, and beneficiaries. They are responsible for paying off creditors and distributing your assets according to either your Will or Florida probate law.

In most cases, it is wise to select a personal representative who is a Florida resident. A person who lives in another state cannot qualify as a personal representative unless they are a(n):

Direct blood-descendent

Adopted child or parent

Brother, sister, aunt, uncle, nephew or niece (or their blood-descendent)

Qualifying spouse

Should Your Surviving Spouse be Your Personal Representative?

Your spouse is probably your closest confidant. He or she knows the most about your estate (often they are joint owners on much of your property), and about your wishes for your property after your death. This makes them a natural choice to serve as your personal representative. But will he or she be up to the challenge? Often, a spouse can be so overcome with grief in the days after their spouse’s death that they are unable to take the steps necessary to promptly record the Will and open the estate.

In a blended family, a surviving spouse may also struggle to be impartial between their own needs and the interests of half-children, step-children, and former in-laws you may have left assets to. If your spouse may be considering enforcing their elective share as a surviving spouse, rather than following the language of your Will, he or she may not be the best choice for personal representative.

What Happens if You Don’t Select a Personal Representative in a Will

Most Wills start by naming a series of intended personal representatives. However, if you die without a Will, or if no one you name is willing or able to assume the role, it will be up to your loved ones to open an estate administration case with the Florida probate court and notify any potential personal representatives according to priority preference. Unless one of those people objects, the judge will generally name the person who filed the petition as the estate’s personal representative. If you died with a valid Will, your loved ones can file that will with the Probate Court. The judge will follow Florida probate law to name your estate’s personal representative, turning to:

The personal representative or successor personal representative named in your Will
Someone selected by the majority of interested persons in your estate (generally your next of kin)
One of the beneficiaries in the Will (the Court may select the best qualified among beneficiaries)

On the other hand, if you died “intestate” – without a Will – the Court will follow the following list in order to select your personal representative:

Surviving Spouse
Someone selected by the majority of the intestate heirs
The heir of nearest degree (the next of kin. The Court may select the best qualified among people of the same degree)

However, the Florida probate court may not appoint:

Someone who holds public office

A court employee

Anyone employed in any probate court

A convicted felon

Someone with mental or physical disabilities that prevent them from performing the duties of a personal representative

A minor

Certain out-of-state residents (explained above)

Factors for Choosing the Personal Representative of an Estate

f that list does not appeal to you, it is important to choose a personal representative as part of your estate plan. In doing so, work with your estate planning attorney to consider each candidate’s:

Residency (and whether they will likely leave Florida before your death)

Education and background

Temperament

Honesty and trustworthiness

Relationship with important beneficiaries and family members

The last thing you want is for your beneficiaries to file a Will challenge to remove your personal representative. Avoid naming someone controversial to your family or a recent caregiver to avoid claims of undue influence.

What to Tell a Personal Representative While You are Alive

Being named as a personal representative should not come as a surprise. Remember that if you trust this person, they will likely be grieving your loss, too. You should talk to each person named as a personal representative in your Will ahead of time, to make sure they are willing to do the job. You might even give them each a copy of your Will so it can be filed quickly after your passing. In addition, it is a good idea to tell your personal representatives:

Who your estate planning attorney was

Where the original Will is kept

Where they can find a list of your passwords and account numbers

Anyone you intentionally excluded from the Will

Get Help Making Thoughtful Estate Planning Choices

Choosing the right person for the important job of serving as personal representative of your estate isn’t always easy. There are ability and personality factors to consider. Often the role requires a careful balance of skill and tact. At Harrison Estate Law, our estate planning attorneys know how to approach these issues with sensitivity. We will help you consider who you want to represent your estate’s interests after your death, and give you tools to talk to them about your plans. Contact us here or call 352-306-3835 to get help today.