Frequently Asked Questions about Selecting a Personal Representative
Orlando, FL Estate Planning Law Firm
What is a Personal Representative?
The personal representative (previously referred to in Florida and some other states as an “executor” ) is the person named in a will to be in charge of administering a person’s financial affairs after his or her death. In most instances, this “administration” process involves taking control of a deceased person’s property, paying his or her bills and taxes, and seeing to it that his or her assets are transferred to the beneficiaries of his or her estate.
Florida Statute Section 733.602 describes a personal representative as a person in a trusted position who is under a duty to settle and distribute the estate of a decedent in accordance with the terms of the decedent’s will (if there is one) as expeditiously and efficiently as is consistent with the best interests of the estate and the interested persons, including creditors of the Estate
How do I choose a Personal Representative?
Most personal representatives don’t need special financial or legal knowledge; many people name their spouse or an adult child. Common sense, conscientiousness, and honesty are the main requirements. A personal representative who needs help can hire lawyers, accountants, or other experts, and pay them from the assets of the estate.
The person you choose should be honest, organized, and good at communicating with people. If possible, name someone who lives nearby and who is familiar with your financial matters; that will make it easier to do chores like collecting mail and finding important records and papers.
Many people select someone who will inherit a substantial amount of their property. This makes sense because such a person is likely to do a conscientious job of managing your affairs after your death. He or she may also know where your records are kept and understand why you want your property left as you have directed.
You should realize that a personal representative can always decline the responsibility. If someone who accepts the responsibility can resign at any time. If an alternate personal representative is name in the Will, that person will take over. If not, the Probate Court will appoint someone to step in.
Who may serve as personal representative?
In general, Florida law provides that any person who is of legal age (i.e. 18 years of age or older) and who is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to act as a personal representative in Florida. Certain persons are specifically not qualified to act if any of the following is true about that person: a) he or she has been convicted of a felony; b) he or she is mentally or physically unable to perform the duties; or c) he or she is under the age of 18 years. There are also certain restrictions on the ability of non-residents of the State of Florida serving as personal representative.
Must a personal representative an attorney?
The Probate Court will require that the personal representative hire an attorney. Florida Statute Section 733.6171 states that attorneys for personal representatives shall be entitled to reasonable compensation payable from the estate assets without court order. The attorney, the personal representative, and persons bearing the impact of the compensation may agree to compensation in any manner that they may agree upon. Even though the parties are not required to follow the statute, Florida law sets forth a schedule of fees that are “presumed to be reasonable.”
Is the Personal Representative Entitled to Compensation?
Florida law states that a personal representative is entitled to compensation from the estate assets for his or her services. The amount of compensation is typically based on the value of the probate estate assets and the income earned by the estate during the administration process. As with fees payable to the attorney for the estate, Florida law sets forth a schedule of fees that are presumed to be reasonable. While the fees may vary (depending on the size of the estate), a fee at the rate of three percent (3%) for the first $1 million of probate assets is presumed to be reasonable. If the value of the probate estate is $100,000 or more, and there are two representatives, each personal representative is entitled to the full commission allowed to a sole personal representative.
Who is entitled to Preference in the Appointment of a Personal Representative?
In those instances where a decedent dies with a valid Will, the Probate Court will generally follow the following order of preference in appointing a personal representative:
- The person nominated by the Will.
- The person selected by a majority in interest of the persons entitled to the estate.
- A devisee under the will. If more than one devisee applies, the court may select the one best qualified.
In those instances where a decedent dies without a valid Will, the Probate Court will generally follow the following order of preference in appointing a personal representative:
- The surviving spouse.
- The person selected by a majority in interest of the heirs.
- The heir nearest in degree. If more than one applies, the court may select the one best qualified.
What are Some of the Responsibilities of a Personal Representative?
A personal representative has the authority and responsibility to perform the following tasks:
- Obtain a copy of the decedent’s Will. Read the Will and understand the instructions provided.
- File a petition with the court to admit the Will to probate.
- Collect all of the decedent’s assets.
- If the decedent had a safe deposit box, take possession of it and its contents.
- Consult with banks and savings and loans in the area to find all accounts of the deceased. Also check for cash and other valuables that may be hidden around the home.
- Transfer all securities to the executor’s name and continue to collect dividends and interest on behalf of the heirs of the deceased.
- Locate and inventory all real estate deeds, mortgages, leases, and tax information.
- Provide immediate management for rental properties.
- Arrange ancillary administration for out-of-state property.
- Collect money owed the deceased and check interests in estates of other deceased persons.
- Locate all household and personal effects and other personal property in order to inventory and protect them.
- Collect all life insurance proceeds payable to the estate.
- Find and safeguard all business interests, valuables, personal property, important papers, the residence, vacation homes, and other properties.
- Inventory all assets and arrange for appraisal for items.
- Determine liquidity needs. Assemble bookkeeping records. Review investment portfolio. Sell appropriate assets.
- Pay valid claims against the estate. Reject improper claims and defend the estate if necessary.
- Pay any state and federal taxes that may be due.
- File income tax returns for the decedent and the estate.
- If the surviving spouse is not a U.S. citizen, consider a qualified domestic trust to defer the payment of federal estate taxes.
- File federal estate tax return and state death and/or inheritance tax return.
- Prepare statement of all receipts and disbursements. Pay attorneys’ fees and executor’s fees. Assist the attorney in defending the estate, if necessary.