VanNess & VanNess, P.A.

Understanding more about how the probate process works - III

In today's post, we'll continue with our discussion of how the probate process works here in Florida. As always, our goal is to provide some much-needed clarity to those people who suddenly find themselves facing what seems like the otherwise insurmountable task of managing the estate of their deceased loved one. 

Responsibilities of a personal representative

While you may be more familiar with terms like executor and administrator, they are not used by the probate courts here in Florida. Rather, as we discussed in our previous post, the term of art is personal representative.

In general, a personal representative is tasked with a long list of legal duties under Florida law, including just some of the following:

  • Identifying, locating, valuing and preserving the probate assets
  • Providing the necessary notice to creditors
  • Defending the estate assets against improper claims
  • Filing the necessary tax returns and paying off tax debt
  • Distributing probate assets among beneficiaries

Qualifications of a personal representative

Under state law, a bank, trust company or individual may serve as a personal representative provided that certain qualifications are met.

For instance, an individual must meet the following criteria:

  • They must either be a resident of Florida, or a spouse, child, parent, sibling or other close relative regardless of their state of residence.
  • They must be at least 18 years of age.
  • They must be physically and mentally capable of performing the duties of a personal representative.
  • They must not have a felony conviction on their criminal record.   

Appointment of a personal representative

In the event the deceased had a valid will and the person named as a personal representative meets the aforementioned criteria, the circuit court judge will issue the "Letters of Administration," which grant the personal representative the legal authority to handle all matters relating to the estate.

However, if the will was not valid or the deceased lacked a will altogether, the circuit court judge will appoint the surviving spouse to serve as the personal representative. In the event the spouse declines this position or the deceased was unmarried, the financial institution or person selected by the majority of the heirs will be appointed as personal representative.

In the event the heirs cannot reach a decision, the decision will fall to the circuit court judge who will make the decision following a hearing.

We will continue this discussion in future posts. Remember to consider consulting with an experienced legal professional if you have any questions about estate planning or probate administration.  

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