The Role of a Personal Representative in Probate
When a loved one passes away, a personal representative (PR, also called an executor) is needed to oversee the disbursement of their assets and debts to their heirs, and carry out numerous other duties relating to probate. If you have been named PR of an estate, you are now duty-bound to carry out the requirements of the position and act in the best interests of the estate, and an experienced estate planning attorney is a crucial ally in doing just that.
Who Can Be A Personal Representative?
Choosing the personal representative of an estate is governed by a number of factors – one of the first among them being whether the deceased person had a will or not. If a person dies with a will in place, the person they nominate will be named as PR. However, if someone dies intestate (without a will), state law generally gives preference to the surviving spouse and/or family to act as PR. That said, a PR need not necessarily be a person – a bank or a trust company can also serve in that role.
Note, a private foundation cannot be a PR.
If you are named, you may not necessarily believe that you are qualified to act as a personal representative, but Florida law is fairly lax in requirements for such an office – any person who is “sui juris” (that is, someone who is at least the age of majority, and is not legally incapacitated in any way) and is a resident of Florida at the time of their loved one’s passing may act as a PR.
Please note, a family member by blood, need not be a FL resident to serve, only non-blood related individuals must be FL residents to serve.
In addition, while a PR has several responsibilities, it is not only permitted, but encouraged, that they consult an experienced estate planning attorney to help guide them through the process.
Significant But Limited Authority
A probate estate is officially opened when a petition for administration is prepared and filed with the court, after which letters of administration will be issued to the PR (barring any significant barrier). Letters of administration officially grant a PR the authority to make decisions on behalf of the estate, within reason – while you may do things like request accounting from asset custodians like banks, you may not spend down any money in the accounts unless it is in service of the estate. In other words, while letters of administration grant you control of the decedent’s assets so that they can be managed appropriately, they do not give you the right to make unilateral decisions about their disposal.
It is crucial to remember that in Florida (and most other states), a PR is a fiduciary, meaning that they have a duty to act in good faith in their dealings regarding the estate. This is especially true in the PR’s main function, which is to identify, compile and secure all of the assets that might be contained in the estate. If they fail to act with the appropriate standard of care, the remedy for the estate and the heirs is usually monetary – the law calls it awarding “taxable costs” – though if a PR commits a specific crime, they may be tried criminally for the offense as well.
A Florida Estate Planning Attorney Can Help You
A personal representative’s duties are essentially to streamline the probate process for a deceased person’s heirs, but they must do so while conforming to the high standard of care demanded by the law. If you have questions or concerns about being named someone’s personal representative, calling our Naples estate planning attorneys at the Nici Law Firm may be the first step toward clarity. Contact us via our web form or on the phone at (239) 449-6150 for a free consultation.