Drafting your will, creating trusts, and planning what will happen to your estate after you pass away are not easy tasks. You have to make big decisions that could have a huge impact on your future and that of your loved ones.
One of the biggest decisions you will have to make is choosing a personal representative. But how do you know if you are making the right choice? And what exactly does a personal representative have to do?
Who Can Be a Personal Representative?
A personal representative is an appointed person, bank, or trust company that administers a decedent’s probate estate. Probate is the process of gathering, paying, and distributing the assets left over after a person, or decedent, has passed away. In other states, personal representatives are often referred to as “executors” or “administrators.”
To serve as a personal representatives in Florida, an individual must be a legal resident of our state, the surviving spouse, or a close relative of the decedent. You also cannot choose a personal representative who is a felon, a minor, or someone who is physically or mentally unable to perform the duties of a personal representative.
If you name a qualified personal representative in your will, the judge will honor your wishes in court. If you do not leave a valid will after your death, or simply do not name a personal representative, your surviving spouse will be appointed as your personal representative.
If you do not have a surviving spouse or a valid will, the judge will allow your heirs to decide amongst themselves who will act as your personal representative. The judge will hold a hearing and make the final decision if your heirs cannot make the decision on their own.
This is obviously not an ideal situation. A personal representative has important duties in handling your estate, so you want to have control over who is appointed to avoid causing tension and causing unnecessary bumps in the process like the ones mentioned above.
What Responsibilities Are Given to a Personal Representative?
A personal representative is responsible for managing any debts and distributing your remaining estate appropriately. Depending on current legislation, the nature of your assets, and any trusts you set up, the personal representative will be in charge of administering the following:
- Collecting, identifying, and determining the value of the decedent’s probate assets
- Seeking out and notifying potential creditors so they may file the appropriate claims
- Exploring the validity of claims filed
- Paying valid claims
- Paying the decedent’s taxes and filing any remaining tax returns
- Employing and designating duties to attorneys, accountants, and advisors
- Distributing probate assets to heirs and beneficiaries
- Paying the decedent’s remaining expenses
- Closing the probate estate
How long do these duties take? The personal representative must allow three months for creditors to make their claim on the decedent’s estate. Combined with validation and other duties, even the simplest estate may take six months to close. More complicated estates, disagreements among beneficiaries, or a confusing will can drag the process out so that it ends up taking more than a year.
Because of the length and complexity of the job, you might wonder if your personal representative will be compensated. Short answer: yes. Compensation for a personal representative can be agreed upon beforehand (either in the will or in a private agreement between the decedent and the personal representative), or after the personal representative has completed their duties. In this latter situation, beneficiaries can agree upon compensation for a personal representative or leave the amount up to a judge and Florida law.
What Happens If a Personal Representative Cannot Perform Their Duties?
Most personal representatives, due to their close relationship to the decedent, fulfill their duties in a timely and accurate manner. In some cases, however, a personal representative cannot or will not do what the position requires of them.
This could stem from a variety of reasons: the estate is complicated, the personal representative is grieving, or the representative does not have proper knowledge of probate litigation.
If the named personal representative refuses the position, a backup representative will need to be found. This backup can be named in the will or chosen by the judge.
If a representative simply isn’t doing a good job, beneficiaries can remove them on the grounds of breaching their fiduciary duties. If the actions of the personal representative in question cause financial losses, a lawsuit can also be filed and compensation can be administered.
Do Personal Representatives Need an Attorney?
Sometimes. Especially if they are not particularly savvy about finances or estate law, or if the decedent didn’t receive proper legal guidance before his or her death and the estate is a mess.
An experienced Florida probate attorney can supervise estate planning and probate litigation, from the writing of the will and the creation of trusts to the completion of a personal representative’s duties.
Probate litigation can be confusing, time-consuming, and add extra stress to an already emotional situation. If you need assistance choosing a personal representative for your estate or simply planning your estate in general, get in touch today.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011, 2012, 2014-1016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016.