The Personal Representative

Florida law requires that every probate estate must be represented by someone.  In Florida, this person, elsewhere called an "executor" if a decedent died testate, or an "administrator" if a decedent died intestate, is called a "personal representative."

The personal representative is considered an officer of the court and acts in a fiduciary capacity, administering the estate of a decedent either according to the instructions in a will or the dictates of a probate court judge.

Florida law further specifies, in great detail, the qualifications, duties and powers of the personal representative; how he or she becomes appointed; how a personal representative can retire or be removed and replaced; and what compensation can be received for services rendered.

The appointment of the personal representative becomes effective when the court issues "letters of administration," granting the personal representative legal authority to administer a decedent's estate.

Serving as a Personal Representative

While any qualified individual, or even a bank, trust company or other authorized financial institution can be appointed as an estate's personal representative, Florida statutes outline an order of preference. For a testate estate, the order is:

The person nominated in the decedent's will
The successor to the person nominated in the will. The successor is also named in the will
Someone picked by a "majority in interest" of people entitled to the estate
As selected by the court, the best-qualified person assigned to receive real property under terms of the will
A capable person appointed by the court

For an intestate estate the order of preference is:

A surviving spouse
Someone selected by a "majority in interest" of heirs
An heir closest to the decedent as selected by the court, or one deemed by the court to be best-qualified
A capable person appointed by the court

A personal representative must be a resident of Florida at the time of the death of the person whose estate is to be administered, unless he or she is closely related to the decedent or is a spouse of the closely-related person. Convicted felons, individuals under the age of eighteen, and anyone considered by the court to be physically or mentally unable to perform the duties of the office, are not qualified to serve.

A personal representative is required to take an oath, promising to faithfully administer the decedent's estate, before the court will issue letters of administration. And unless waived by the will or by the court, he or she will also be required to post a bond, insuring against any malfeasance or misuse of estate funds or assets during the probate process.

Tasks of the Personal Representative

To accomplish the mission of preserving and managing estate assets for the benefit of beneficiaries, heirs and creditors, the personal representative has many tasks to perform. Thus, he or she can expect to be intensely involved in the probate process for several months, or even years, if there are substantial estate assets, many claims against the estate, or complex issues to be resolved.

One of the first jobs of a personal representative is to take control of all of the decedent's property, exclusive of a protected homestead, or any other property which can be left with the person presumptively entitled to it, if it is not necessary for purposes of estate administration. The personal representative is further empowered to sell, mortgage or lease any real property, if the will, or the court, approves.

Within 60 days of the issuance of letters of administration, the personal representative must also file an inventory with the court of all assets that were owned by the decedent at the time of death that are subject to probate administration. The main purpose of the inventory is to advise any beneficiaries or heirs of their value, as well as enable the court to determine any matters such as family allowances, elective shares of a surviving spouse, etc., based on the estate's worth.

Another responsibility of the personal representative is to publish a "notice of administration" informing any potential creditors of their right to present claims against the estate in the probate proceeding. Further, he or she must personally notify any of the estate's "known or reasonably ascertainable" creditors of same. The personal representative has broad authority to compromise, resolve, settle, pay, or object to any claim made.

The personal representative must also collect any and all outstanding debts owed to the decedent and may initiate actions against debtors who refuse to pay. He or she is responsible for the payment of any taxes, estate or otherwise, owed by the decedent, as well as any fees owed by the estate for services related to the probate process. The personal representative is also authorized to continue a decedent's business if there exists a "reasonable means" of preserving its value.

The distribution of estate assets is another large area of responsibility. The personal representative can make preliminary and partial distributions of an estate to beneficiaries as long as those assets are "not necessary to satisfy claims, expenses of administration, taxes, family allowance, exempt property and an elective share" according to the will or by law. The representative also must make a final distribution of the estate's assets as prescribed in a will or as ordered by the court.

Lastly, the personal representative is required to "close the estate" by petitioning the court to do so, but only after giving a final accounting of the estate's management to the court and all interested parties, providing for the final distribution of assets, affirming that all creditors' claims have been dealt with, and all taxes and fees have been paid. Once the court issues a notice of discharge, the responsibilities of the personal representative cease.