We typically tend to believe we can do things on our own, and of course there are times that you probably can. However, there are certain things in life you probably should seek guidance on. Maybe it’s finding someone who can teach you how to golf or finding someone who can you show you how to dance. The point here is that you are going to need help and guidance along the way in life especially when dealing with the law and the complexity that comes with it. If you find yourself reading this blog it’s most likely because you have been named as the personal representative or executor in somebody’s Will, you will be named as the personal representative in a Florida probate, you have already been named as personal representative in a Florida probate, or you simply just enjoy our weekly blogs as much as I do.
What is Probate?
Probate is the process of administering a person’s estate after they have passed away. If the person passed away with a last will and testament the probate process will then consist of validating the will, carrying out their wishes, and transferring assets like a house or money to that person’s beneficiaries. Typically, the personal representative would have been named in the last will and testament.
What is a personal representative?
Might be named in someone’s last will and testament. Most commonly, it is a family member or close friend. If a person dies without a Will and has not selected a personal representative, Florida probate law has a hierarchy of who has preference to be the personal representative. You can learn more about that by going HERE – Florida Statute 733.301. This person is in charge of administering the estate, which includes locating heirs/beneficiaries, paying off debts left behind, and distributing the corresponding assets.
Who is eligible to be appointed as a personal representative?
Known in other States as the executor, generally must be a Florida resident and either a spouse, sibling, parent, or child. The personal representative can also be a bank, or a trust company.
Does the person you appoint have to accept their role as a personal representative?
No; the person you appoint in your last will and testament is not obligated to accept their role. If they decline to accept their role, they would probably sign a Disclaimer or Waiver stating that they do not want to be one.
Does the personal representative, or the executor get paid?
According to Florida law, the personal representative is entitled to a commission based on the value of the estate. Commission is listed below.
-3% for the first $1 million.
-2.5% for any amount over $1 million and up to $5 million.
-2% for any amount over $5 million and up to $10 million.
-1.5% for any amount over $10 million.
In addition to these commissions, the personal representative may also be entitled to more compensation if they were involved in the sale of property, litigation, involved in paying their taxes, and even if they are carrying on with the decedent’s business. The judge and court reserves the right to pay more or less for their services rendered.
What happens if there is no Will that names a Personal Representative?
If there is no Will that names a personal representative, the court will look to Florida Statute 733.301 to determine who has the right to be personal representative. Sometimes, the court may appoint an independent third party known as a curator, if no family member can be found.
Can the personal representative or the executor be sued?
Florida law does want to protect the personal representative since is taking time out of their life to administer assets for the benefit of the heirs. However, if the personal representative is doing things to harm the estate, there are instances when heirs or beneficiaries could bring a lawsuit against the personal representative.
Should a personal representative hire a Florida Probate Attorney?
Navigating Florida probate laws can be overwhelming. The courts today are not setup to help walk you through the process and if you are the person appointed to administer an estate, it is best you do everything correctly the first time. Even in the smallest estates, complex legal issues have the possibility of arising and that is where an experienced Florida probate attorney would greatly benefit you.
As you can see, this role can certainly have its pros and cons and is certainly not for everyone. If you find yourself in this position, we highly suggest reaching out to a Florida probate attorney you can trust and one that will have your best interest at all times.
Stivers Law, based out of Miami, Florida, has handled hundreds of probate cases throughout the State of Florida and is ready to help you with yours, your loved ones, or your friend’s probate case.
If you found this article valuable, we’d love for you to speak with a member of our team to discuss how we can help you through the Florida probate process. Please call us at (305) 456-3255 or fill out the Contact Us page and we will contact you right away. And for those who would like to do more research – we have you covered! Download our free guide today titled: “A Love One Has Died – Now What?” to learn more about the Florida probate process.
Thank you for your interest in Stivers Law and we look forward to speaking with you soon.
Justin serves as a member of the American Academy of Estate Planning Attorneys (AAEPA), a national organization comprised of legal professionals concentrating on estate planning. As a member of the Academy, he receives ongoing, comprehensive training on modern estate planning techniques.
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