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The Role of a Personal Representative

Planning

A personal representative (also known as an executor or an administrator), in the simplest form, is someone named in a will that is directed to carry out the testator’s formal wishes.  The personal representative is normally a person, but sometimes can be a bank or trust company.  If the testator does not have a will or did not name a personal representative, the judge in charge of the administration of the decedent’s estate will appoint one for the estate. The personal representative has a duty to identify all the assets in question and convert them in a form that is transferable or sellable per the wishes of the court or the testator.  The personal representative’s duty is to administer the probate pursuant to Florida law.

Selection and Qualification

Individuals who leave a will usually name a personal representative who will administer the estate.  The court overseeing the probate process appoints a personal representative for those who die intestate (without a will).  The testator usually selects a close, neutral family friend or a relative to serve as their personal representative.  Some select banking institutions or a personal attorney to act on their behalf.  Given the duties of the personal representative, it is arguably wise to choose an entity or an individual who is does not have a personal stake in the property being distributed. Personal representatives appointed by the court have to meet qualification standards before they can serve.  To qualify as a personal representative, you must be capable of exacting the duties of the role.  For those who die intestate, the court can choose the surviving spouse, the person selected by a majority of heirs in interest, the heir nearest in kinship, and any other capable person as determined by court.

Duties

The personal representative will have varying duties depending on the size of the estate and the kinds of property being distributed.  For example, a personal representative of a small estate can be tasked with overseeing the sale of one property and taking over personal bank accounts.  However, the personal representative of a large estate can be tasked with various, complex transactions to bring the estate into a form that is transferable.  These duties according to Florida law include paying of creditors and debts, paying any state or federal taxes, identifying and locating estate property, and closing the estate.

Disqualification

If a personal representative takes from the estate without authorization they are subject to civil and criminal penalties.  They will also be personally liable for costs, including attorney’s fees. Personal representatives have liability to resign immediately when they know that they are not qualified for the position.  Disqualification factors include felony convictions, being under 18 years old, and being mentality or incapable of performing the duties.  This liability extends to a personal representative who does now know, or should have known of the facts that required him or her to resign.

West Palm Beach Estate Planning Attorney

We provide legal assistance to individuals who wish to explore estate-planning options. The Office of Law Offices of Larry E. Bray has years of experience in estate planning law and will tailor advice based on your unique circumstances. Call the Law Offices of Larry E. Bray, P.A. to determine the options that best fits your estate planning needs.

Resources:

law.cornell.edu/wex/executor

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0733/0733.html

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