The Personal Representative is the person, bank or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate.
The Personal Representative has a legal duty to administer the probate estate pursuant to Florida law. The Personal Representative must:
-Identify, gather, value and safeguard the decedent’s probate assets.
-Publish a “Notice to Creditors” in a local newspaper to give notice to potential claimants to file claims in the manner required by law.
-Serve a “Notice of Administration” to provide information about the probate estate administration.
-Conduct a diligent search to locate “known or reasonably ascertainable creditors”, and notify these creditors of the time by which their claims must be filed.
-Object to improper claims and defend suits brought by such claims.
-Pay valid claims.
-File tax returns and pay any taxes properly due.
-Employ professionals to assist in the administration of the probate estate.
-Distribute probate assets to beneficiaries.
-Close the probate estate.
Who Can Be a Personal Representative?
The Personal Representative can be an individual, bank or trust company, subject to certain restrictions.
To qualify to serve as a Personal Representative, an individual must either be a Florida resident or, regardless of residence, a spouse, sibling, parent, child or other close relative of the decedent. An individual who is not a Florida resident, and who is not closely related to the decedent, cannot serve as a Personal Representative.
A trust company incorporated under the laws of Florida, or a bank authorized and qualified to exercise fiduciary powers in Florida, can serve as a Personal Representative.
Who will the court appoint to serve as Personal Representative?
If the decedent had a valid will, the judge will appoint the person or institution named by the decedent in his or her will to serve as Personal Representative, as long as the named person or bank or trust company is legally qualified to serve.
If the decedent did not have a valid will, the surviving spouse has the first right to be appointed by the judge to serve as personal representative. If the decedent was not married at his or her death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree, the judge will appoint a personal representative after a hearing is held for that purpose.
Why does the Personal Representative need an Attorney?
A Personal Representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration.
The attorney for the Personal Representative advises the Personal Representative on their rights and duties under the law, and represents the Personal Representative in probate estate proceedings. The attorney for the Personal Representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.
A provision in a will mandating that a particular attorney or firm be employed as attorney for the Personal Representative is not binding. Instead, the personal representative may choose to engage any attorney.