Skilled Florida Estate Planning and Probate Attorneys
Probate can be a lengthy and complicated process. In order to manage the competing interests in an estate, including beneficiaries and creditors, and ensure that the assets of the estate are handled properly – a personal representative is typically appointed to manage the estate and the probate process.
Often times the appointment of a personal representative is without issue, as a trusted family member is appointed or a professional friend of the family. On occasion, however, the individual assigned to handle the affairs of the estate may be one that beneficiaries, loved ones, or family members do not trust to handle the process in an honest and professional way. When this happens, they may challenge the appointment of the personal representative.
What Do Personal Representatives Do in Jacksonville?
A personal representative’s job is essentially to handle and protect the assets in an estate. In reality, the job description for a personal representative can vary widely. First, the personal representative must locate and assemble all of the assets of the estate. This is easier said than done depending on the estate documents prepared by the deceased before death.
If the deceased had a will and clearly itemized his or her assets, identifying and locating them can be straightforward. If, however, the decedent died without any instruction, it can take a while to determine what accounts the decedent had, what real property he or she might have owned, and what other valuable assets might be in his or her house.
Once the assets are identified and assembled, the personal representative must figure out what debts the decedent owed and how those debts can be paid by the estate. This typically requires putting a notice out to potential creditors to notify them of the death and give them time to make a claim on the estate. These claims can then be evaluated by the personal representative and paid where necessary.
After creditors have been paid, and taxes owed on the estate are dealt with, the personal representative must then distribute the remaining assets to the beneficiaries of the estate, either according to a will or according to Florida law. Once the assets are distributed, the personal representative can then close the estate.
Who Is Qualified to Act as a Personal Representative?
Despite the significant responsibility that they take on, Florida law places very little restriction on who can be a personal representative. A personal representative must be 18 and either:
- A resident of Florida, or
- A spouse, sibling, parent, child, or close family relative of the person who died if outside the state of Florida.
If an individual meets these two qualifications, he or she is presumed to have the ability to take on the responsibility of personal representative.
When Personal Representatives Go Bad
When a personal representative is first appointed, a notice of administration must be sent out to relatives and beneficiaries of the decedent under Florida law. It must also be distributed to trustees of related trusts and beneficiaries of those trusts as well.
Upon receiving a notice of administration, if an interested individual feels that the personal representative who has been appointed to handle the estate is not qualified for the position, they may move to have the personal representative removed and a new representative appointed. This typically happens when an interested party knows that the personal representative has engaged in behaviors that compromise his or her ability to be a personal representative, or is simply dishonest.
Florida law provides for a wide-ranging basis for removal of a personal representative, including:
- Incapacity of the personal representative
- Failure to follow an order from the court
- Having a conflict of interest with the estate
- Maladministration of the estate
- Failure to properly account for the assets of the estate
- Conviction of a felony
If you are an interested person in an estate – which simply means that you stand to benefit from the estate in any way – you may petition to have a personal representative removed on one of these bases. Alternatively, a court may also decide on its own to remove a personal representative if it questions the ability or competency of the appointed representative.
If a petition is filed, the petitioner must be able to show that one of the statutory justifications for removal applies. This means that an interested person cannot simply petition to remove a personal representative because of a dispute, or because they do not like the person. This is not enough.
Instead, the petitioner must make a case to the court that the petitioner is not qualified for a specific reason, or has failed to act properly in administering the estate thus far, and a new personal representative is required.
If the court agrees, the personal representative will then have to file an accounting of his or her actions thus far with regard to the estate and the estate assets. This informs the new personal representative and the court of what has already been accomplished, and enables them to keep track of assets that are a part of the estate.
One important thing for all interested parties to know is that there is a time limit on when you can object to a personal representative. After the Notice of Administration is received, an interested party has three months to make an objection to the appointed representative. If an interested person fails to make an objection in this time period, he or she is forever barred from doing so.
Florida Attorneys Helping You Protect Your Rights as a Beneficiary
When a loved one or family member passes away, you want to know that the estate will be kept in good hands and managed as effectively as possible. This requires appointing a personal representative who is capable and skilled at handling potentially complicated affairs.
At Beller and Bustamante, P.L., our probate attorneys frequently assist personal representatives in the administration of estates. They can also work with beneficiaries who believe that it is necessary to remove a personal representative who is not doing his or her job. For more information, contact us online or at (904) 288- 4414.