After someone dies, the assets of the deceased are gathered, debts are paid, and the assets are distributed to the beneficiaries. This process is referred to as “probate” and is overseen by the probate court. The personal representative is responsible for handling the administration of the probate estate. It is a great responsibility and one that requires full compliance with Florida probate law. If you have been appointed as personal representative of an estate, contact the experienced probate attorneys at the Law Offices of Jeffrey A. Herzog, P.A. Failure to uphold your duties as personal representative could subject you to personal liability for your missteps. Our attorneys will counsel you on all your required duties and represent you throughout the probate process.
Probate Administration and the Personal Representative
Probate administration is necessary for the decedent’s beneficiaries to take ownership of the decedent’s assets. If the decedent had a will, he or she probably designated beneficiaries as well as a personal representative who would be in charge of administering the probate estate. If a person dies “intestate,” they died without a will and Florida statutes will dictate distribution of the estate.
There are different types of probate administration, including:
- Formal administration: This is required when the decedent has been dead for two years or less and the probate estate value is greater than $75,000. The probate estate refers to the assets that were owned only by the decedent (as opposed to the gross estate which includes things that the decedent had an ownership interest in).
- Summary administration: This type of administration is generally only available if the estate is valued at $75,000 or less OR the decedent has been dead for more than two years. The two year time period comes from the two year statutory limit on claims by creditors against an estate. No personal representative is appointed by the court in summary administration.
In the event the estate is subject to formal probate administration, a personal representative will be appointed by the court in accordance with the decedent’s will if the decedent made a provision appointing the personal representative or the probate judge will select one. A circuit court judge will preside over the probate proceedings. The personal representative must be either a Florida resident, or a close relative of the decedent. Additionally, he or she must be 18 years of age or older, mentally and physically capable of performing the duties, and have no prior felony convictions.
The personal representative is a person, bank or trust who is in charge of the administration of the decedent’s probate estate. He or she has the duty to comply with Florida law during the administration process and must:
- Identify and gather the assets of the probate estate;
- Value and keep the assets safe;
- Publish notice to creditors in order to give them an opportunity to file claims against the estate;
- Diligently search for “known or reasonably ascertainable” creditors and notify them of their need to file a claim;
- If any claims are invalid, the personal representative has the responsibility to object and defend any suits resulting from the invalid claim;
- Pay valid creditor claims;
- File tax returns and pay taxes due;
- Pay expenses of administering the estate;
- Pay statutory amounts to the surviving spouse or family; and
- Distribute assets to beneficiaries.
This is a great deal of responsibility to carry and the personal representative must faithfully and diligently execute these duties. If the personal representative mishandles the decedent’s probate estate, he or she may be personally liable to the estate beneficiaries for any damages incurred. It is a good idea for the personal representative of the estate to consult with an attorney to be clear on the rights and responsibilities that come with this role. The attorney will also represent the personal representative in probate proceedings. A will may select an attorney for the personal representative, but the personal representative may choose their own attorney regardless of what the will states.
The personal representative is entitled to reasonable compensation for performing the duties of administering the estate. The compensation may be stated in the will, provided for in a contract between the personal representative and the decedent, or determined by a judge.
The probate administration process can be quite lengthy. The length of time will usually vary depending on the complexity of the necessary distributions and whether any disputes arise in the administration process. The estate must remain open for at least three months which is the creditor claim period. The average time for probate is around five or six months but it can sometimes take several years for the process to be completed.
Providing Dedicated Representation for Personal Representatives
When you have a job as important as administrating an estate, you want trusted legal counsel by your side. The experienced estate planning attorneys at The Law Offices of Jeffrey A. Herzog, P.A. are here to support you through the estate administration process. Don’t wait until complications arise in the probate process. Contact The Law Offices of Jeffrey A. Herzog, P.A. today.