In the Florida probate process, a personal representative is the person who is appointed to represent the Estate of the Deceased. In other states, the Personal Representative is referred to as the executor or administrator of the Will.
The Florida personal representative is usually appointed in the deceased’s will. This will usually be honored by the Court as long as the person or entity who is named is legally qualified to serve as a personal representative for an Estate in Florida.
If the deceased died without a will, which is referred to as intestate probate administration, then the Court will appoint a person close to the deceased to serve as the Personal Representative of an Estate. Ideally, this will be the deceased’s spouse. If the deceased does not have a spouse, or if the spouse declines to act as the personal representative of the Estate, then the personal representative will usually be the person who is selected by a majority in the interest of the heirs or an heir who is the nearest degree of relation to the deceased, depending on the discretion of the Court.
If the heirs of the Estate cannot come to an agreement as to who should be the personal representative of the Estate, then the Court will hold a hearing and the judge will appoint a personal representative at such hearing.
What are the Responsibilities of a Personal Representative?
Although it may be an honor to be named as the Florida personal representative of an Estate, there is a great deal of responsibility that comes along with this position.
If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer. This is because the personal representative is taking on a fiduciary role and the fiduciary responsibility that goes along side that.
If you are the personal representative of an Estate, you must understand the position you are taking on and ensure that you are equipped to perform the duties required by you in order to avoid possible litigation from the heirs of the Estate, for which you could be held personally liable.
Do I have to Serve as the Personal Representative if Named in the Will?
No. You can choose to decline your duty as Florida personal representative of the Estate, and the responsibility of personal representative will be offered to the next person in line according to Florida probate law.
One way to ensure that the person named in your will is willing to act as your personal representative is to ask them before drafting the will. This is not a requirement of the will writer, but it may be a good idea to simplify the probate process.
Who Cannot Serve as a Personal Representative?
A personal representative can be an individual, a bank or a trust company, subject to certain restrictions. Convicted felons and minor children are not eligible to serve as personal representatives of an Estate. Additionally, a person who is not a resident of Florida and is not related to the deceased cannot serve as the personal representative in Florida.
Am I Required to Hire an Attorney for Probate Proceedings as the Personal Representative?
According to the Florida Probate Rules, “Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.”
This means that if you have be appointed as the personal representative of the estate, you have a fiduciary duty to hire an attorney to represent both you and the Estate. According to the Florida Bar Consumer Probate Pamphlet, this is because many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.
The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate. The attorney for the personal representative advises him of his rights and duties as the personal representative of the estate.
Do I have to use the Attorney Named in the Will?
The answer to this question is no; a provision in a will mandating that a particular attorney be employed as attorney for the Florida personal representative of the estate is not binding. The personal representative should hire an attorney that they trust, feel comfortable with, have assurance of their experience and knowledge, and be someone who the personal representative is comfortable working with during this process.
If you have been named as the Florida personal representative in a will, or if you believe you should be named as the personal representative for a loved one’s estate who passed away without a will, then contact Boyer Law Firm’s probate attorneys today.