Problems in Marshalling Assets for the Personal Representative

Even with the best will, and the best estate plan, or even with Florida’s intestacy laws that say who gets what without a will, there is still one thing that must always be done in probate court: someone has to determine what the assets of the state actually are and where they are. After all, before you determine who gets what, you have to know the property that the estate is dealing with or trying to divide up.

That isn’t always easy. This is called marshaling estate assets, and there are a lot of steps, and sometimes problems, or hurdles that the personal representative charged with this job often faces.

What Assets are There?

The first problem is determining what assets actually exist, and where. Even if a will supposedly lists everything, that doesn’t mean that it actually does; people often acquire property after they made their will, and they don’t amend their will, and thus, the personal representative can’t just read from the will and gather those assets–he must do his or her best to marshal all the assets.

The personal representative does have the power to go through the deceased’s property, to ascertain and inventory the property. Additionally, the representative may speak with professionals, such as financial managers, lawyers, or accountants, to get information that would assist in identifying the deceased’s assets.

Locating the Assets

Then there are problems in locating assets–for example, just because someone says they have a 3-carat diamond piece of jewelry, doesn’t mean that anybody immediately knows where it physically is located. Sometimes, assets are known to exist, but nobody knows where they actually are.

Getting Appraisals

Even if you have all the deceased’s assets, and you know where they are, the law requires that the personal representative actually value or appraise the property. In some cases this can be a rough estimate, but in others, especially with more unique or unusual items, professional appraisers may be needed to demonstrate value.

With these hurdles, the personal representative doesn’t have much time–only 60 days to inventory and list the assets for the court. And the personal representative can be held personally liable for errors, such as leaving out property, or not appraising it.

Only Assets in Probate

And the personal representative has another problem–although charged with identifying and inventorying the property for the probate court, he or she can only do so with probateable assets–he or she cannot search for, or seize, assets that are not subject to probate.

For example, if a husband and wife have a joint bank account, and there is a payable on death agreement whereby the surviving spouse gets the bank account if the other spouse dies, that bank account is not an asset that is subject to probate, and thus, the personal representative cannot seize it or gain access to it.

Your estate planning or probate attorney can help you determine what is and what is not subject to probate, if you are acting as a personal representative.

We can help personal representatives in probate court. Call the West Palm Beach probate law attorneys at The Law Offices of Larry E. Bray today.