How do you know who should be running a Florida probate or the estate administration process? How do you limit your liability if you are the estate executor or how do you get information if you are an estate or trust beneficiary?
Well, these are common questions that family members and Florida probate beneficiaries have. They are also good, and reasonable, questions which can be answered.
In Florida, we call the estate executor, who administers the estate of a deceased resident, the “personal representative.” The “PR” is typically “nominated” or listed in a last will. To get appointed means to be empowered by a Florida probate court. This is done by filing a petition for administration in the county where the deceased Florida was a resident. This petition is done when a will is filed, along with a death certificate.
Getting permission from a probate court judge to run the estate, to be appointed the personal representative, can be easy or difficult, depending on any number of factors. Sometimes, family members or spouses are upset, or hurt, that they were not named to be the estate personal representative. They often feel that someone nominated, or appointed, to be the estate personal representative is the wrong choice. In such an instance, Florida probate litigators often point beneficiaries to that part of the Probate Code which talks about who is entitled to serve as personal representative of a Florida estate. Did you know that if you have been convicted of a felony that you cannot run an estate?
If you believe that you should serve as the personal representative, but you are not named in the will, you can do one of two things: First, you can ask the other beneficiaries to choose you, in writing. Second, you can will a challenge in court, and have a probate trial on who should be appointed personal representative of the estate. But estate litigation law firms in Florida will caution you to think very hard. Ask yourself if you can win and also if the person who you don’t want to run the estate is really a bad choice. From a trial strategy or case strategy standpoint, consider asking yourself if a challenge to remove the personal representative is the first way that you want to introduce yourself to the probate court for this probate administration process. Then again, if the “PR” is not fit to serve or has conflicts of interest, or may engage in an act of self-dealing, most probate lawyers would tell you to not remain silent, but, rather, take a stand. Many times, you can suggest to the probate court that you should serve in place of another, or that an independent, non-beneficiary, non-family member serve as personal representative.
Aside from estate lawsuits to appoint or remove an estate executor, what does the estate personal representative doe? Well, you should be “marshaling” or gathering the late Florida resident’s assets, paying off the just and proper debts, including the final Federal Income Tax bill of the decedent, and then distributing the estate assets to the probate beneficiaries after you have paid all expense of administration.
If you are the personal representative, know that there are ways to minimize litigation and potential liability from serving in this fiduciary role. There are Florida probate laws which permit you to minimize potential lawsuits and liability from such things as dealing with Florida homestead, investing estate assets, paying creditors claims, and making partial distributions to estate beneficiaries.
There are a number of things which a personal representative of a Florida probate needs to do, and probate rules and laws to comply with. If you want to read more about this, you can read the Florida Probate Code here and you can read the Florida Probate Rules here.