The Role Of The Personal Representative In Florida Probate

The personal representative Florida law tasks with the responsibilities of a probate executor assumes a substantial duty on behalf of the deceased individual for whom they serve as an estate administrator. Carrying out these responsibilities may not always be easy, but a probate executor’s tasks are essential to ensuring the smooth transfer of assets from one generation to the next. A Florida estate planning and probate attorney with Loughlin Law, P.A. may be able to advise you concerning the steps an estate administrator must follow in Florida probate. Call our office in Palm Beach County today at 561-559-6214 to schedule a consultation.

What Does Florida Probate Entail?

Probate law, in any state, governs the process of closing out a deceased person’s financial accounts, fulfilling their final obligations, and ensuring that whatever property the individual leaves behind at his or her death is transferred to another legal owner (or owners) in an orderly manner. Each state, however, manages its probate procedures according to its own laws. This last point may be especially important to underscore in Florida because of the large numbers of individuals who retire to this state from other parts of the country. These late-in-life Floridians frequently need to update their estate plans after they move their permanent residences to Florida in order to reflect the laws in their new jurisdiction, and if they do not choose personal representatives who are themselves residents of Florida then the individuals tasked with the final administration of their estates may need particularly detailed guidance due to unfamiliarity with Florida probate laws.

A few of the specificities of Florida probate law include:

• Distinct terminology: In many states, the person who carries out the probate of a deceased individual’s Last Will and Testament is called the Executor of the estate. In Florida, although it is not unusual to hear residents refer to an “executor” in their estate plans, the legal term for this role is the personal representative; becoming familiar with this terminology can make understanding the various rules and guides to Florida probate much easier.
• Inheritance provisions that override the Will: Surviving spouses, and in some instances a deceased individual’s children – particularly if the individual leaves behind children not yet in adulthood – may be entitled to shares of the individual’s estate that can override provisions in a Will that would seek to distribute the property differently. The protections afforded to the “elective share” of a surviving spouse can be especially strong, and personal representatives carrying out the probate of estates are bound to abide by state law, rather than the terms of the Will, whenever the two are in conflict.
• Homestead property protections: The state of Florida has enshrined protections for homestead property in its Constitution, and there are a number of state laws and regulations regarding the handling of deeds to homestead property and the transfer of property legally recognized as a homestead during probate. Many Florida residents preparing their estate plans make a special effort to select strategies that maximize the potential benefits of these protections not only for themselves, but for the heirs or beneficiaries to whom they leave a Florida homestead.

Florida Probate Rule 5.030 establishes that a personal representative of a decedent’s estate must be represented by an attorney during the probate process under most circumstances. Often for a personal representative Florida residents will name someone in whom they have deep personal trust, rather than someone with extensive experience of probate law. Individuals attempting to navigate the probate of their loved ones’ estates are encouraged to avail themselves of the opportunity to take advantage of professional expertise.

Appointment of a Personal Representative in Florida Probate

When a Florida resident passes away, the immediate procedure will depend to some extent on whether the death takes place in a healthcare facility vs. at home or during activities away from home, as this can affect who is responsible for completing the individual’s death certificate and contacting a licensed professional to dispose of the individual’s remains, as required under Chapter 497, Florida Statutes. Funeral services themselves are not required under Florida law, but the care of human remains by a licensed professional generally is, and typically the paperwork associated with this process also establishes some of the essentials that must be put in place before the probate executor can begin the process of estate administration.

Admission of Will to Probate

Florida testators have the right to “self-prove” their Wills with a Probate Court during their own lifetimes. Otherwise, the Will must be admitted to probate with appropriate attestation, as described in § 733.201(2) and (3).

Petition for Administration

Florida law establishes, under § 733.202, that “any interested person” (generally speaking, someone who has a reasonable expectation of inheritance from the decedent’s estate) has the right to petition for administration. Often, but not always, the personal representative will take responsibility for filing this petition with the Probate Court; ultimately, however, the identity of the party petitioning for administration will not normally impact the appointment of the personal representative unless the person petitioning for administration is the sole remaining “interested” party.

Letters of Administration

Once the Probate Court has received a petition for administration in connection with a valid Last Will and Testament, the Probate Judge will ascertain whether the Will nominates a personal representative to carry out the administration of the estate. Usually, this would be what is known as “formal” administration, but the same initial steps generally apply, up to this point, to estates that could qualify for the simplified process of summary administration.

If the Will names a personal representative, then the court will further seek to confirm that the person named in the Will meets the basic requirements for a personal representative set out under § 733.302-305, Florida Statutes. These criteria are not particularly restrictive, but issues can arise if the individual named in the Will has a criminal record, or if the person lives out-of-state and does not meet certain kinship criteria for nonresident personal representatives. In the event that the person named in the Will does not meet Florida requirements, the Probate Court will appoint another person as the personal representative, following the order of preference established in § 733.301, and in any case will issue Letters of Administration, authorizing the person appointed to commence the administration of the decedent’s estate.

Required Notices in Florida Probate

With probate as with other tasks in life, often one of the greatest difficulties lies in getting started – and one of the main problems many people experience in getting started is simply knowing where to start. Fortunately, in Florida the Probate Code follows a more or less linear system of organization, so that estate administrators can to a significant degree start with the receipt of the letters of administration and follow the next several sections of Chapter 733 step-by-step to ensure compliance with Florida probate law.

Notice of Administration

This step is easily overlooked, in large part because in many cases the probate process has been broadly discussed among family members prior to its commencement, and so personal representatives may not always think to serve formal notice of probate proceedings about which they expect friends and family to be already aware. However, “they already know” is not a legally recognized form of notification. The Notice of Administration requirement exists not only to ensure that all family members and other interested parties are aware of the probate proceedings, but also so that the probate executor has a clear record of their good-faith attempts to inform anyone who might have an interest in the estate regarding the commencement of administration.

Accordingly, the personal representative is required to service formal Notice of Administration, following Florida’s standard requirements for service, on any of the following parties who have not previously been notified prior to the issuance of letters:

• The surviving spouse
• Beneficiaries named in the decedent’s Will
• Co-representatives who are also trustees of a trust that meets the criteria set out in § 733.707(3), and the beneficiaries of any such trust
• Any persons who may be entitled to property exempt from probate

A Florida estate planning and probate lawyer may be able to help a personal representative determine whether property is exempt from probate.

Notice to Creditors

Personal representatives in Florida are also responsible for publishing a notice to creditors. This notice is intended to allow creditors to come forward and inform the personal representative of their claims against the estate so that they can be paid in accordance with the order of payments set out in § 733.707. The notice must be published in a local newspaper for at least two consecutive weeks, and will need to include all of the items of information listed under § 733.2121. Drafting and publishing this notice can be somewhat tedious, but in most cases the publication itself is a less complicated process than the formal service required for the Notice of Administration.

Florida Probate Exempt Property

After serving the decedent’s relatives with Notice of Administration and ensuring the proper publication of notice to creditors, the personal representative of a Florida decedent’s estate must determine whether the individual left behind any property exempt from probate. Both the payment of outstanding debts and the distribution of remaining assets depend on accurately identifying property exempt from probate and ensuring that it passes directly to the appropriate parties, as required by Florida law.

The legal requirements for exempt property in Florida probate are set out in § 732.401-403, Florida Statutes. For the most part, Florida’s probate exemptions cover household items and homestead property, and are intended to ensure that homestead property passes directly to heirs as provided under the state’s Constitution, and that surviving members of an individual’s immediate family retain access to household essentials. However, determining whether the devise of property specified under a decedent’s Will meets the criteria for exemption under the Probate Code can sometimes be difficult. The situation can  in some instances involve additional complications when the terms set out in a Will – especially regarding the devise of homestead property – are superseded by other provisions of Florida law. A probate attorney with Loughlin Law, P.A. may be able to review the details of your loved one’s estate and help you determine whether any property is exempt, and provide you with guidance on how this property must be handled.

Handling Debts in Florida Probate

Often friends and family members of a recently deceased person will think of the probate process primarily in terms of the gifts (called “devises” in probate law) their loved one may have left to various individuals or charitable organizations in his or her Will. People who were close to the individual may hope to receive some item of personal property that holds special significance for them, or they may be concerned to make sure that ordinary household items are tidied away and disposed of in a manner the deceased person would have approved. Unless they have the initial burden of paying for their loved one’s final expenses, they may not immediately think of the estate in terms of possible debts. However, efficiently handling any debts an individual may leave behind at their death is a crucial part of the Florida probate process.

Probate and Final Expenses

“Final expenses” is a social term, more than a legal one. Typically it is used to refer to costs associated with an individual’s end-of-life healthcare needs, which can vary widely depending on their personal circumstances, and sometimes also with the disposition of their physical remains, which in. Florida will generally be carried out via either burial or cremation.

In Florida probate law, the cluster of financial obligations that socially are often grouped together under the general heading of “final expenses” are broken down with more granularity, as part of the legal process for determining the order in which a personal representative must discharge a decedent’s lingering obligations. Generally, “reasonable” expenses up to $6,000 associated with an individual’s funeral, interment or cremation, and the marker placed on their grave, are considered part of the second “class” of payments that may be taken from the estate. Because it often takes some time to reach this stage of the probate process, these costs are often paid out as reimbursement to family members who may have made the initial payments to the providers of these services out of pocket. Expenses related to an individual’s end-of-life care, such as hospital bills or payments to caregivers within 60 days of the individual’s death, are grouped into Class 4 and may be paid out of the estate only after financial obligations in Classes 1-3 have been fulfilled.

Probate and Payment of Creditors’ Claims

Outstanding tax debts and similar obligations are placed in Class 3, with requirements for calibrating within that group under federal law. Class 3 also encompasses any fees, fines, or court costs remaining unpaid at the time of an individual’s death.

Payments to creditors other than governments or payments ordered by a court (such as overdue child support) generally fall within Class 7 (for a business owned by the decedent) and Class 8. This means that payments to creditors who submit their claims in response to the notice of creditors often come near the end of the order of payments – but they must still be paid out before any remaining probate property can be distributed to beneficiaries in accordance with the terms of the Will.

Learn More From an Estate Planning Lawyer

In naming a personal representative Florida residents typically select an individual they feel they can trust. In many ways this can be a sound instinct, but it often means that the estate administrator responsible for probating the Will and closing out their loved one’s estate may be navigating the complexities of probate law for the first time. First-time probate executors are encouraged to reach out to a Florida estate planning attorney early and often as they fulfill their responsibilities. Schedule a consultation with Loughlin Law, P.A. today by calling our Boca Raton office at 561-559-6214.