When we die, we inevitably leave behind belongings, debts, assets, businesses, and many, many other things that will need to be tended to. Who will take care of these tasks? In Florida, the person (or people) who will wrap up all the loose ends is called a personal representative.

How Do You Become a 

Florida Personal Representative?

If someone dies with a Will, the Will often nominates someone to be the estate’s personal representative. A court will always appoint the Will’s nominee so long as they meet the statutory requirements for being a personal representative and are able to carry out the duties. If someone dies without a Will, or intestate, the court will appoint a personal representative – usually a close relative or friend, but if neither of those is available, the court can appoint certain Florida-based trust or financial entities to act as the personal representative.

Once the court appoints the personal representative, he or she will need to obtain certified copies of Letters of Administration, which will be the first of many steps in being able to fulfill the duties to the estate.

Who Can Be a

Florida Personal Representative?

Florida law clearly lays out the requirements to be a personal representative. A personal representative must be over 18 years of age, a Florida resident at the time of the decedent’s passing, not a felon, and willing and able to perform the necessary duties. There are exceptions to the Florida residency requirements, mostly for spouses, children, and close relatives, and there may be some exceptions to the “no felons” rule. If there are any questions about a nominee’s capacity to serve as the personal representative, these should be cleared up by the court overseeing the estate.

What Are a 

Florida Personal Representative’s Duties?

Once appointed, the personal representative becomes responsible for all decisions related to the decedent’s estate. If the personal representative is not an attorney, he or she must hire a Florida attorney to represent them individually as the personal representative. It’s important to note that the attorney for the personal representative is NOT the attorney for the estate or the beneficiaries – the attorney serves the Representative alone. If there are two or more personal representatives, it is advisable that they be represented by the same attorney. Under Florida law, the attorney for the personal representative is to be paid “reasonable compensation” out of the estate’s funds.

The personal representative acts as a fiduciary to the estate – they must act in good faith and loyalty on behalf of the estate for the benefit of the beneficiaries and creditors of the estate.

Being a personal representative is no easy task. Responsibilities include gathering the estate’s assets, collecting debts, preserving and maintaining assets, notifying creditors, paying creditors, making distributions to beneficiaries, and much, much more. One of the first tasks a personal representative will perform is to file a verified inventory of assets within the first 60 days of being appointed. The inventory of assets contains a description of and an estimate of the fair market value of the estate’s assets at the time of decedent’s passing.

Aside from assessing and disclosing assets, the personal representative must protect and preserve all assets pending distribution to the beneficiaries. They must keep records of spending on behalf of the estate, and must inform creditors in a timely manner of the administration of the estate. And, of course, the government will want to see it’s fair share – the personal representative is responsible for filing the final paperwork with the IRS to wrap up the decedent’s tax matters.

Some Florida estates will be straightforward: limited real property, some assets and cash, and clear wishes for distribution left by the decedent. Others may be far more complex – for example, was the decedent involved in any lawsuits? Did he or she have a business? Are there significant real estate holdings? Out of state assets? Out of country assets?? Things can get complicated very quickly, which is why it is important for the personal representative to hire a competent, experienced probate attorney.

Some Practical First Steps A

Florida Personal Representative Can Take

Aside from hiring an attorney, the personal representative can take certain steps to ascertain exactly what needs to be wrapped up in the estate. Below are a few suggestions of where to start. This is definitely not an exhaustive list, so if you are acting as a personal representative be sure to consult with your attorney regarding other matters to address.

• Review decedent’s checking and savings account records. They will provide clues as to potential creditor identities, assets, and liabilities.
• Figure out if the decedent had a safe deposit box. Check with the bank to see what is needed for access, as it may have specific requirements.
• If there are mortgages on a property, keep paying them and make sure they’re current. Work with your attorney and mortgage holder to find out next steps.
• Make sure that any titled property, such as cars, is held in a manner that makes them easily transferred to beneficiaries.
• Hire experts, such as appraisers, contractors, and accountants, if needed. Advise the court if there will be any unusual costs associated with experts.
• Check the decedent’s mail, and forward it to a convenient mailbox. Mail will also provide good clues as to creditors, assets, and liabilities.
• Find out if the decedent was receiving any benefits such as social security, veteran benefits, a pension or other payments. These may need to be refunded if they continued after death.
• Check the decedent’s records, both paper and digital. Passwords may pose a challenge, but can often be obtained by showing proper documentation.
• If the decedent had a pet or pets, ownership rights and care will need to be addressed.

As mentioned, these considerations only scratch the surface of what a Florida personal representative will need to take on. The Florida Bar has a very helpful consumer pamphlet on probate on its website that can address some initial questions about the process. You may also always contact the experienced probate and trust administration attorneys here at Lynchard & Seely. We are sensitive to both the emotional and practical challenges that a personal representative may be going through, and we welcome you to contact us for a free consultation.

Simple answer: No, not all Estates have to go through probate in Florida. However, the real question is whether all assets have to go through probate in Florida. And, the answer is no.

Unfortunately, answering this question requires an analysis of each estate. Below you will find some of the steps that I go through in order to determine whether or not the client needs an estate to be probated.

To really get at the root of this question you have to look at how things get done with the estate’s assets. For example, when your mother or father passes away, how do you get access to the funds in the bank account? How do you get title to their house? Generally speaking, there are only three ways to transfer assets in Florida.

Joint Ownership with Right of Survivorship

Now let’s talk about the first way to transfer assets in Florida – Joint ownership with right of survivorship (“JOWRS”). JOWRS is a concept or a legal construct that allows multiple people to own an item, real estate, bank accounts, vehicles etc.… Depending on the relationship of the parties and the language on the title, the asset may pass or transfer to the joint owner immediately upon death without the need for a probate.

To determine whether this applies, you have to look at the actual title to the asset. For example in the instance of the piece of real estate you need to look at the deed (quitclaim deed, warranty deed, life estate deed). For a non-married joint ownership, you must have language contained in the deed that says, or something substantially similar to, “joint ownership with right of survivorship.” If you see this language, then likely no probate is needed for this property.

When property is bought by a married couple, the analysis gets easier. Florida law provides a presumption of “with right of survivorship” when the properties acquired by a husband and wife jointly (and they have remained married). This is actually referred to as tenants by the entireties, but don’t get caught up in the legal mumbo-jumbo. So, when you’re looking at the deed and the Grantee is “John and Jane Smith, husband and wife,” probate is likely unnecessary.

Therefore, if the only remaining assets was this piece of real estate where JOWRS is present, no probate would be necessary at all, and this is an an example of when not all states have to go through probate.

Beneficiary Designations and Agreements

Now let’s talk about the second way to transfer assets in Florida. The second main way to transfer assets in Florida is by agreement.

Agreements come in different types and forms. For example, beneficiary designations on bank accounts are essentially agreements with your financial institution that says: “upon my death, cut a check to “X.”

Other common examples are life insurance policies and annuities. Both of these are simply agreements with financial institutions for them to make a payment upon your death. When you have this type of agreement in place, your Bank will dispose of that account to the intended beneficiary immediately upon your death. You do not need to seek the authority or the permission of anybody else to gain access to those funds. Therefore, no court approval or probate is needed to distribute those assets in the bank account to the intended beneficiary.

So, if the decedent only had a bank account in which their beneficiaries were designated, more than likely no probate is needed for that estate.

Probate

Now let’s talk about the third way to transfer assets in Florida. If you do not have joint ownership or an agreement, then unfortunately you are going to have to seek authority to transfer those assets.

The only entity that has the power to authorize you to transfer someone else’s assets is a judge. The court process of determining who is the rightful heir, determining who the creditors are, and determining how these assets need to be distributed is probate. There are many steps to a probate, including but to limited to:  addressing creditors, selling real estate, distributing assets, and liquidating assets.  However the heart of the probate is seeking authorization to handle a decedent’s assets and personal property.

Let’s go through an example. If ta person has a bank account, and if there are no beneficiary designated nor is there an agreement between the decedent and the financial institution, then when that person passes away, the financial institution does not know how to distribute the money in that account.

Think of it from the financial institution’s perspective. The financial institution has an account with $10,000 of the decedent’s money in it, but they don’t know who rightfully gets that money. What if they give it to the wrong person? Is the Bank liable to the rightful heir?

Therefore, in many cases such as this, you’ll hear the bank for the financial institution say we need “an order from the court” or “letters of administration/testamentary”. Essentially, the bank is saying go to court and get a permission for us to distribute at the decedent’s assets.

Conclusion:

I hope this article has answered your questions. If not feel free to contact us, and we will be happy to discuss the matter and provide a free initial consultation. There are a few different types of probates, but really they boil down to two main types: a summary administration or a formal administration. I will talk about both of these types of probate in future posts but for now just understand that unless there is joint ownership with rights of survivorship or an agreement governing in asset, then more than likely a probate will be necessary.