Experienced, Knowledgeable And Dependable Representation Throughout The Probate Process
Probate is a legal process by which an estate is transferred once a person has died. It is an orderly legal proceeding that validates the will, pays debts and taxes, and distributes assets among named beneficiaries. If the decedent passed away without a will, the court decides how the assets should be distributed in accordance with Florida intestate law. At Lyons, Beaudry & Harrison, our probate administration attorney, who is board-certified by The Florida Bar as a specialist in wills, trusts and estates, will guide you through the process and fight aggressively for you in court, if necessary.
Our experienced and knowledgeable staff have years of experience in the administration of estates. We will guide you through this complicated process and the legal requirements of estate administration.
The Duties Of A Probate Administrator Personal Representative
A personal representative generally handles the probate process. The personal representative is usually the person named in the will of the decedent. If the decedent failed to make a will, the court will appoint a personal representative as dictated by the Florida Probate Code – usually a spouse or a relative.
A personal representative has a number of legal duties and financial obligations that must be complied with in administering the probate estate to avoid probate litigation, including:
- Collecting assets – The personal representative is responsible for collecting the decedent’s assets and filing an inventory of those assets with the court, listing their estimated fair market values. It may be necessary to appraise business interests, real property, and items of tangible personal property, such as artwork, jewelry and other property to establish the fair market value.
- Paying creditors – The debts left behind by the decedent must be paid. The Florida Probate Code sets forth an orderly process to notify creditors of the probate administration and for the payment of timely filed creditor claims. The personal representative is required to follow this process and also ensure that all estate and income taxes are paid.
- Distributing the estate – Once the assets are collected, and the creditors and taxes are paid, the personal representative must distribute the remainder of the estate to the beneficiaries named in the will. If there is no will, the remainder of the estate will be distributed to the decedent’s heirs in accordance with the Florida intestate law.
Whether the probate estate is being administered pursuant to a will or intestate, a complex set of rules and regulations governs the proceedings. If you are named as a personal representative under a will or wish to serve as a personal representative, you should seek counsel that is experienced and knowledgeable in the administration of estates.
Frequently Asked Questions About Probate And Estate Administration
The probate process can be complicated, but our team strives to simplify the process for our clients. We know you have questions about how the process works and what the role of a personal representative entails. Our knowledgeable attorneys have provided answers for some of the most common questions we receive about Florida probate law.
- How is the value of an estate determined?
- Is the appointment of a personal representative always required?
- Who is appointed as the personal representative if someone dies without naming one in their will?
- What happens if the named personal representative wishes to be removed from this position?
- What are the basic duties of a personal representative?
- What taxes need to be paid after someone’s death?
To learn more about the probate process, we invite you to discuss your situation with an experienced and knowledgeable estate administration attorney.
How is the value of an estate determined?
Depending on the complexity of an estate, establishing the value could be as simple as adding up the amount the decedent had in the bank. Estates with real property often require appraisals. Other types of property may need to be evaluated by experts. Business interests often require valuation by financial professionals.
Is probate and the appointment of a personal representative always required?
When referring to the court-appointed person in charge of administering a decedent’s probate estate, Florida courts use the term “personal representative.” Some states refer to this person as an “executor,” but those terms are both commonly used to describe the person in charge of administering the probate estate. There is no requirement that a personal representative be named in a will; however, when probate is required, there does need to be a personal representative appointed by the court to manage the process. In almost all cases, the decedent nominates the personal representative in his or her will. Subject to certain statutory limitations, individuals (such as family, friends or professionals), who are residents of the state of Florida, can serve as the personal representative as well as out of state residents who are blood relatives of the decedent or the spouse of a blood relative. Therefore, subject to certain statutory limitations, most family members, regardless of their residence, are eligible to serve as a personal representative. Also, corporate fiduciaries are eligible to serve as a personal representative.
Probate may be unnecessary if all of the decedent’s assets are held in a trust, jointly owned with survivorship rights, or held with other survivorship features such as a beneficiary designation, pay on death, in trust for a beneficiary or otherwise. Probate may also not be required in certain other situations, such as when the decedent leaves a very small estate with no real property.
Who is appointed as the personal representative if someone dies without naming one in their will?
If a personal representative is not named in the decedent’s will, a court will appoint someone to fill this role as dictated by the Florida Probate Code. If the decedent left no will at all, a court may appoint the surviving spouse, a person selected by the heirs or the closest remaining heir. In special situations, guardians or others may be appointed.
The same residency rules that govern the appointment of a personal representative named in the will apply when the decedent fails to name a personal representative in the will or dies without a will.
What happens if the personal representative wishes to be removed from this position?
A personal representative can voluntarily resign as the personal representative. More commonly, other interested parties seek to have the personal representative removed from that role. Florida law allows for the removal of a personal representative for a variety of reasons, including failing to comply with court orders or wasting the estate’s resources. After removal by a court or resignation, the former personal representative will have to provide an accounting of what was done during their time as the personal representative.
What are the basic duties of a personal representative?
A personal representative is a fiduciary and must administer the estate in accordance with the will and/or as provided by the Florida Probate Code. The authority given to the personal representative by the will and the Florida Probate Code must be used in the best interests of both the beneficiaries and creditors of the estate. The personal representative has a duty to collect, settle, and distribute the estate in accordance with the decedent’s will or the Florida Probate Code if there is no will.
The personal representative is responsible to collect the decedent’s assets, filing an inventory with the court, notifying creditors of the estate administration, locating beneficiaries and keeping them informed. During the probate process, a personal representative will manage the estate assets, sell the assets, pay taxes, creditors and administrative expenses, and distribute the remaining assets to the beneficiaries. The personal representative must be represented by an attorney in the probate proceeding. It is best for the personal representative to work with an experienced probate attorney who is board-certified in wills, trusts and estates to administer the estate.
What taxes need to be paid after someone’s death?
The decedent’s federal income taxes for the last year of their life needs to be filed with the IRS and any tax owed must be paid. Any future income earned by the estate may also be taxed. Certain gift taxes may also need to be paid. Property taxes should be paid on real estate as long as it is still owned by the estate. If the decedent’s estate is worth more than a certain amount, a federal estate tax may apply. The state of Florida does not have a separate estate tax, but it is possible that assets located in other states may be subject to estate taxes.
Get In Touch With An Experienced And Knowledgeable Florida Probate Administration Attorney
Avoid family conflicts and potential litigation with the help of an attorney who is board-certified by The Florida Bar in wills, trusts and estates, and the rest of our team at Lyons, Beaudry & Harrison. Contact us online or call 941-366-3282 today to schedule an appointment and discuss your probate matter. Our office is conveniently located on the corner of Main Street and Orange Avenue in Sarasota, Florida.