What Does It Mean to Be the Personal Representative in Someone’s Will in Florida?

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By Gary M. Landau, Esq.

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Personal Representative in Someone's Will in Florida | (954) 979-6566

In Florida, after a person passes on, the final affairs of their estate and its division between heirs go through a probate court. The person legally in charge of estate matters is called the personal representative (PR).

The personal representative can begin executing the instructions in the deceased person’s will once a Florida Probate Court issues Letters of Administration, a legal document putting the personal representative in charge of administering the estate.

What exactly does a personal representative do? Gary M. Landau, a probate attorney in Coral Springs, Florida, offers some helpful information.

Can Anyone Serve as a Personal Representative in Florida?

Any mentally and physically capable adult named in the decedent’s will who satisfies the requirements of the state of Florida can serve as a personal representative, except for convicted felons.

If the deceased person did not specify a personal representative in their will or died intestate (with no will), a majority of the estate’s beneficiaries choose the representative, which must be approved by the probate court. Can out-of-state residents serve as personal representatives?

Persons residing outside Florida can usually serve as PRs if they are related to the decedent. Common examples include children, siblings, nephews or nieces, and other relatives.

A Personal Representative’s Responsibilities

A personal representative must comply with the requirements of the probate process in Florida, which includes tracking down the decedent’s assets, notifying creditors, and paying off estate debt.

Will execution is a significant responsibility: Any mismanagement of a deceased person’s estate (such as neglecting to pay debts or taxes) can make a personal representative liable for damages the beneficiaries sustain.

Here is a detailed specification of the tasks a personal representative will carry out.

1. Locating Probate Assets

A probate asset is any property that had belonged solely to the deceased person. Examples include the decedent’s home, personal valuables, vehicles, and bank and investment accounts with no named beneficiaries. Jointly owned property or bank accounts that name beneficiaries are examples of assets that do not need to be probated.

A decedent’s personal representative typically works with a probate lawyer to open the probate, assemble relevant legal documents, review the decedent’s assets, notify creditors and heirs, and open an estate account for paying off debts, taxes, and legal fees.

2. Notifying the Deceased Person’s Creditors

According to Florida law, the decedent’s PR must let any potential creditors know that the deceased person’s estate is open under a probate process. The representative may contact the creditors directly, but probate requirements also involve giving a formal notice in a newspaper in the decedent’s county of residence. The notice must appear at least once a week for two consecutive weeks.

Creditors typically have three months from the first notice to file claims against the decedent’s estate.

3. Inventorying the Estate

To determine the estate’s net worth, the decedent’s personal representative must make an inventory of all countable assets, including real estate and vehicles, personal valuables, bank and investment accounts, and stocks and bonds. The personal representative will share this detailed list with the probate court and all beneficiaries.

4. Paying Valid Debts

Three months after giving due notice to the deceased person’s creditors, the personal representative has to pay off any valid estate debts. To this end, the representative must use liquid assets from the estate account. If cash is unavailable, it may be necessary to sell estate property to obtain funds.

Any claims that creditors make after these three months will not count as valid.

5. Paying Taxes and Consolidating Records

If the estate reaches the high threshold for paying a federal estate tax, the personal representative must file and pay applicable taxes within an officially designated timeframe.

6. Closing the Estate

Once all debts are paid, the estate distributes all remaining assets to the beneficiaries according to the terms of the will.

At that point, the representative files a petition with the probate court officially asking for release from his or her fiduciary position. Once the probate court approves the petition, the estate closes, and the probate case ends.

Quick Frequently Asked Questions

1. Is there a specific deadline for the personal representative to file the estate inventory?
Yes. Under Florida Statute § 733.604, the personal representative is required to file a verified inventory of the estate’s assets within 60 days after the court issues the Letters of Administration. This inventory must list all property of the estate with “reasonable detail” and include the estimated fair market value of each item as of the decedent’s date of death. A copy of this inventory must also be served on the surviving spouse and all residuary beneficiaries.

2. Can a personal representative be removed from their position after they are appointed?
Yes. Under Florida Statute § 733.504, a probate judge has the authority to revoke a representative’s letters and remove them for several causes, including:

  • Physical or mental incapacity to perform duties.

  • Failure to comply with a court order.

  • Wasting or maladministration of estate assets.

  • Conflict of interest that interferes with the administration of the estate.

  • Conviction of a felony after being appointed.

3. Does the “3 percent fee” apply to all assets, including the decedent’s home?
Not necessarily. Under Florida Statute § 733.617, the “presumed reasonable” commission of 3 percent is calculated based on the compensable value of the estate. Crucially, in Florida, Protected Homestead property is generally not included in this calculation because it passes outside of the probate estate. However, the representative may be entitled to “extraordinary compensation” if they are required to perform special services regarding the homestead, such as managing its sale or defending it from creditors.

4. What is the legal priority for appointing a representative if no one is named in the Will?
If there is no Will (Intestacy) or the named representative cannot serve, Florida Statute § 733.301 establishes the following order of preference for appointment:

  1. The surviving spouse.

  2. The person selected by a majority in interest of the heirs.

  3. The heir nearest in degree (the closest living relative). If no one from these categories applies, the court may appoint any “capable person” to serve.

5. Is the personal representative required to obtain a “Bond” before starting their duties?
Frequently, yes. Even if a Will waives the requirement for a bond, Florida Statute § 733.402 allows a probate judge to require a personal representative to post a Surety Bond. This bond acts as an insurance policy that protects the beneficiaries and creditors if the representative mismanages or steals from the estate. The amount of the bond is typically based on the total value of the liquid assets in the estate.

Gary M. Landau, P.A.: Experienced Probate Attorney in Coral Springs, FL

Do you need help with any matters related to probates, wills, and trusts, or real estate closings in Florida? Get in touch with the LAW OFFICE OF GARY M. LANDAU, P.A., a longstanding probate attorney.

Gary M. Landau has over 25 years of experience in probates, wills and trusts, and real estate closings in Florida. Call (954) 979-6566 today to schedule a consultation at no cost. The law office sees clients in person, by phone, or by Zoom.

Copyright © 2021. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. country or other appropriate licensing jurisdiction.

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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