It is critical that you choose the correct personal representative to handle your estate after you die. You can appoint the personal representative in your will. The personal representative identifies and collects all your assets, pays all your bills, accounts for all your money, and distributes the assets to the correct heirs. The correct personal representative understands how to work with a skilled lawyer to value the assets you own. The personal representative handles any disputes that may arise including will contests and claims by creditors.
Why Florida residents choose a personal representative
Anyone who lives in Florida or owns property in Florida should use their will to select a personal representative. The personal representative appointed in your will is called the executor. Female appointments are called executrixes. You should speak with the person you choose while you’re healthy to be sure they want to manage your estate when you die.
The personal representative is the person who handles the financial parts of your estate.
Florida Statute Section 733.602 provides that the:
“personal representative is a fiduciary who shall observe the standards of care applicable to trustees.” The personal representative has a duty to follow the terms of your will and Florida law in accordance with the directions set forth in your will and the best interests of the estate. The ‘personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.’”
The authority of the personal representative is based on the probate of the will. Normally, your personal representative will seek court approval to validate the will and then to validate your appointment. If you don’t have a will, then you or someone interested in the decedent’s family or estate must request the court to approve their appointment as a personal representative.
What factors should you consider when choosing a personal representative?
There are generally no formal requirements to be a personal representative. Generally, according to Florida law, anyone 18 or older can be a personal representative provided that:
- They have not been convicted of a felony.
- Have not “been convicted in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult.”
- Are not mentally or physically unable to perform the duties of a personal representative.
There are some guidelines that most skilled Florida probate and wills lawyers recommend:
- The personal representative should be someone you trust to handle your financial affairs
- Should be conscientious and willing to carry out the duties in an efficient and timely manner
- Is able to handle any complaints or claims that may arise
- Can work with a probate lawyer, accountants, appraisers, and other professionals.
- Someone who lives close by, can go to the Indian River County Courthouse if necessary, and knows where your assets are.
- Understands how to open a checking account and keep current records of all banking transactions.
Most people who are married choose their spouse to be their personal representative. As an alternative, many people select an adult child. You can also appoint a non-relative to be your personal representative. You can appoint co-executors if you prefer.
The personal representative must be a resident of Florida. If the following conditions are met, a nonresident of Florida may be eligible to act as your personal representative:
“The person is:
(1) A legally adopted child or adoptive parent of the decedent
(2) Related by lineal consanguinity to the decedent
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
(4) The spouse of a person otherwise qualified under this section.”
The following entities also can be appointed a personal representative of your estate:
- Trust companies incorporated under Florida’s laws.
- Florida “banking corporations and state savings associations authorized and qualified to exercise fiduciary powers in Florida.”
- “National banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida.”
The duties and power of the personal representative are set forth in the Florida Probate Code.
Are the personal representative and the lawyer for the personal representative entitled to compensation?
Yes. The personal representative is entitled to be paid a fee for his/her work from the estate assets without the need for a court order. The commission is based on the following factors:
- The compensable value of the estate.
- The inventory value of the probate assets.
- The income the estate earns during its administration such as increases in the value of any stock.
Personal representative fees are normally considered reasonable based on guidelines set forth in Florida law. For example, the rate of 3 percent for the first $1 million is considered reasonable.
The personal representative may be entitled to additional fees for the following work:
- “The sale of real or personal property.
- The conduct of litigation on behalf of or against the estate.
- Involvement in proceedings for the adjustment or payment of any taxes.
- The carrying on of the decedent’s business.
- Dealing with a protected homestead.
- Any other special services which may be necessary for the personal representative to perform.”
The attorney for the estate is also entitled to reasonable compensation for his/her time. The legal fees are generally based on:
- An agreement between the personal representative and the lawyer
- A scale set forth in the Florida statute. For example, $1,500 for estates worth $40,000 or less. The lawyer is entitled to additional dollar amounts or percentages for estates worth more than $40,000, The lawyer is also entitled to additional fees for any extraordinary work such as, “Involvement in a will contest, will construction, a proceeding for determination of beneficiaries, a contested claim, elective share proceeding, apportionment of estate taxes, or any adversarial proceeding or litigation by or against the estate.”
If the decedent has a will, then the order of preference for the personal representative appointment is the person you name in your will. Otherwise, the personal representative will be the person that a majority of the heirs choose or an heir the court approves.
If the decedent did not have a will, then the Probate Court has specific criteria it follows. The first choice is the surviving spouse. Your lawyer can explain what criteria apply if there is no surviving spouse.
What are the duties of a personal representative?
The personal representative performs many duties including:
- Obtaining the will and requesting that the Probate court validate the will.
- Identifying and collect all the assets including bank accounts, retirement benefits, homes, personal property, stocks, and other assets.
- Making arrangements to handle an out-of-state property.
- Collecting any sums owed to the decedent.
- Seeking payment of any life insurance proceeds.
- Filing an inventory including appraising the assets.
- Paying any valid estate claims and resolve any disputed claims.
- Filing the Florida and federal income taxes for the decedent.
- Filing a federal estate tax return if required.
- Preparing an accounting.
- Distributing the assets.
Talk with a skilled Indian River County Probate Lawyer about personal representation of an estate
At Lulich & Attorneys, our lawyers have been advising Sebastian and Vero Beach clients for 30 years. We are skilled probate lawyers. We guide personal representatives through every phase of the litigation process. Most estates are resolved amicably, however, we’re ready to advocate for you if litigation is needed to resolve any disputes. Call us at 772-589-5500 or use our contact form to schedule an appointment.