- Practice Areas
- Becoming a Client
There is terrific grief and pain at the loss of a loved one. Beyond grief and pain, when you add external stresses to the equation you can have a disaster on your hands in very short order.
Part of the responsibilities or duties of an executor or administrator of an estate can be to reduce the level of stress during the probate process.
The fundamental duties of a Florida personal representative (also known as an "executor," if male, or an "executrix," if female in other jurisdictions) of an estate are the same as those of a trustee–protecting the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have all of your ducks in a row and prepare for court as best you can.
Read on for some essential reminders about the probate process and how representatives can assist with the process.
A personal representative is required to prepare and file an inventory with a list of assets and their values after the personal representative is approved by the court. The timeframe for this important chore is set by statute and in Florida it is due within 60 days after the personal representative is appointed. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). Prior to filing the inventory, the property must be valued and even appraised as necessary. The assets can include debts due and owing to the estate (not debts the estate owes to another party). The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate's assets and claims. [Beneficiaries always want to know what they might get and creditors want to know if there is enough money to get paid.] If the inventory is not filed, the personal representative could be removed or changed, which would slow down the process (and raise tempers). However, under most circumstances, the personal representative can petition the court for an extension of time for filing the inventory.
One thing to realize if you are a beneficiary is that the will may be "read" a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate's administration. The personal representative must settle the decedent's debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma's house with a moving truck and start taking whatever you want. Most likely, the personal representative is doing his or her job and making sure everything stays where it is until probate is closed.
As noted above, the personal representative also must to keep the administration process moving along by settling all of the decedent's debts. He or she must give proper notices to potential creditors, to include making publication in the appropriate newspaper and sending written notice to reasonably ascertainable creditors by certified mail. Also, some personal representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent's bills immediately, which is not necessarily good. Some states provide "permissive notice" to unsecured creditors and this may avoid paying some unsecured claims.
The personal representative must keep the beneficiaries in the loop, to include providing each with notice via certified mail that the will has been admitted to probate and a copy of the will. In addition, the personal representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting.
The personal representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The personal representative is able to sell any property that is perishable or would deteriorate in value during the probate process. As you can see, being a personal representative is a big, big job. Consequently, he or she can be removed if proven to have been guilty of any gross misconduct or mismanagement in the role as personal representative. The personal representative may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with a many other details.
So you see, there is more than a little pressure on the personal representative. As a result, it is essential that the personal representative work in concert with Daniel T. Fleischer, an experienced probate and estate planning attorney to guide the personal representative or beneficiaries during this process … and avoid all of the hidden landmines.