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Florida Powers and Duties of an Executor (Personal Representative)

November 30, 2016

will-and-testamentFlorida law provides a procedural and statutory guide which sets for the rights/powers and obligations of an Executor in the State of Florida. In the State of Florida, an Executor is referred to as a “Personal Representative”—this is the same as an “Executor” as the term is used in other states for all practical purposes.

What is an Executor (Personal Representative)?

Florida requires that a probate proceeding in many cases be carried forth with the appointment of a designated representative.  In Florida, this person is called a Personal Representative.  This person accepts responsibility to act for the best interests of the beneficiaries/heirs and creditors of an estate to administer the estate correctly and efficiently pursuant to Florida law.  He or she can be determined by the decedent in a Last Will and Testament, or if there is no will, it will be determined based on a preset order of priority based on lineal kinship to the decedent.  A surviving spouse, absent a provision to the contrary in a will, has the priority of appointment followed by lineal descendants and other family members in a statutory hierarchy.

Duties of a Personal Representative in Florida

Once appointed, the Personal Representative has several important jobs.  First and foremost, this individual oversees the gathering of all the probate assets of the deceased and obtaining information regarding any debts.  One easy and practical way to obtain information is to have the USPS forward the mail of the deceased so bills can be obtained.  Once appointed, a document called “Letters of Administration” will be provided to the Personal Representative.  This document allows a Personal Representative to open an estate account and deal with third parties to either marshal assets of the deceased or pay any outstanding bills.

Immediately upon appointment, a Personal Representative is obligated to timely file an initial inventory.  This document sets forth the assets known to the Personal Representative and must be provided to all interested parties.

Dealing with creditor claims is a two-step process.  For those individuals known to the Personal Representative, Florida Law requires that the Personal Representative send them actual notice of the probate proceedings through a document entitled “Notice to Creditors.”  For all other creditors, they are dealt with through a process of publication of the “Notice to Creditors” document in a newspaper of local circulation in the County in which the probate process is proceeding.  This publication runs once a week for two weeks.  Ninety (90) days from the first week of publication at the end of the publication process, the “Creditor claim period,” the Personal Representative should have an idea of the debts of the estate.  The creditors will file documents within the estate proceeding called “Statements of Claim.”  The Personal Representative has an obligation to pay valid claims and can dispute the validity of improper creditor claims.  Objections to creditor claims or “Statements of Claim” must be filed in a timely manner or the objection will be waived.

In addition to the creditor claims that typically come to mind—funeral expenses, medical bills, insurance, utilities—the Personal Representative is obligated to satisfy the outstanding tax liability of the deceased by making arrangements for payment of any outstanding federal tax issues and for filing the appropriate tax returns for a given year.   The filing and tax requirements are beyond the scope of this article, but it is strongly recommended that a Personal Representative consult with and engage an accountant to satisfy these requirements.

The Personal Representative of a Florida Estate also has an obligation to take reasonable and necessary measures to prevent waste during the administration of an estate.   There are no general hard and fast rules as every fact pattern is different.  Nonetheless, you should employ common sense and understand that these obligations generally require reasonable efforts to maintain the value of items and prevent waste or destruction of assets.

Finally, a Personal Representative must make distribution to creditors and heirs and beneficiaries of an estate.  Florida law contains a certain priority for payments when the debts exceed the funds to be distributed.   Florida also requires a Personal Representative to file an accounting that sets forth the assets and distributions of an estate proceeding.  This final accounting is provided to all interested parties who will then have an opportunity to file objections if need be.  Otherwise, the Personal Representative will then move to be discharged and the estate closed.

Some of the powers and duties of a Personal Representative are outlined in Florida Statutes.  For your convenience, click the links below.

Fla. Stat. §733.602

Fla. Stat. §733.608

If you are the nominated Personal Representative of an Estate or thinking about opening a probate in Florida, give us a call to learn how we can help you.

Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.