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PROBATE PROCESS

A Personal Representative is the fiduciary appointed by the court to administer the estate provided that you are authorized to serve. See Section 731.201(28), Florida Statutes. Although the decedent's Last Will and Testament appoints you as the personal representative of his or her estate, you do not have the authority to act as personal representative until you petition the Court and are appointed as personal representative by the Court.

Every personal representative must be represented by an attorney unless the personal representative is the "sole interested person" or is an attorney. See Florida Probate Rule 5.030(a). Courts have construed the word "interested person" to include not only other beneficiaries, but also creditors (if the decedent has been dead for less than two years).

Resident Personal Representatives

To qualify as a Personal Representative, you must be at least 18 years old and a resident of the State of Florida at the time of the decedent's death. See, Section 733.302, Florida Statutes with the exception of a few exclusions listed in Section 733.303, Florida Statutes.

Nonresident Personal Representatives

An individual who is at least 18 years old who is not a resident of the State of Florida may qualify to serve as personal representative if you meet one of the specific requirements set forth in Section 733.304, Florida Statutes:

  1. A legally adopted child or adoptive parent of the decedent;
  2. Related by lineal consanguinity to the decedent;
  3. A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
  4. The spouse of a person otherwise qualified under this section.

The personal representative of the estate will normally take the actions authorized by the applicable Florida Statutes. Section 733.602, Florida Statutes provides as follows:

"(1) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.

(2) A personal representative shall not be liable for any act of administration or distribution if the act was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a proceeding challenging intestacy or a proceeding questioning the appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons."

The personal representative shall also generally be responsible for taking the following actions, although other actions are also required:

Notice of Administration

After the issuance of the Letters of Administration, a personal representative shall promptly serve a Notice of Administration on the various parties set forth in Section 733.212, Florida Statutes. Notice of Administration may be served on any devisees under a known prior will or heirs or others who may claim an interest in the estate. The specific requirements are set forth in Section 733.212, Florida Statutes.

Notice to Creditors

All known creditors of the estate must be given notice of the estate proceeding by certified mail. The specific requirements are set forth in Section 733.2121, Florida Statutes.

Inventory

An inventory shall be filed by the personal representative within sixty (60) days of the issuance of letters of administration. The specific requirements are set forth in Section 733.604, Florida Statutes and Florida Probate Rule 5.340.

Verified Statement Regarding Creditors

Florida Probate Rule 5.241(d) states "Within 4 months after the date of the first publication of notice to creditors, the personal representative shall file a verified statement that diligent search has been made to ascertain the name and address of each person having a claim against the estate. The statement shall indicate the name and address of each person at that time known to the personal representative who has or may have a claim against the estate and whether such person was served with the notice to creditors or otherwise received actual notice of the information contained in the notice to creditors; provided that the statement need not include persons who have fled a timely claim or who were included in the personal representative’s proof of claim."

Notice of Due Date For Federal Estate Tax Return

A personal representative shall file a notice stating the due date of the return within 12 months from the date letters of administration are issued. The specific requirements are set forth in Florida Probate Rule 5.395.

Tax Returns

A personal representative shall be required to file any required tax returns. These returns can include, among others, the following: the decedent's final income tax return (for income prior to death); the estate's income tax returns for applicable periods; federal and state estate tax returns; and intangible tax returns. The date of death ends certain tax years and begins other tax years. Because of the complexity of the returns, a personal representative should consult with his or advisors to determine what tax returns are required and the filing deadlines for each such return.

Distribution to Beneficiaries

After all debts have been paid or resolved and expenses of administration and taxes, if any, have been paid, and the estate tax closing letter (if applicable) is received, and the final accounting and petition for discharge are filed and approved, the remaining assets can be distributed to the extent not previously distributed to the beneficiaries.

Discharge

The petition for discharge must be filed and served on all interested persons within 12 months after issuance of letters of administration for estates not required to file a federal estate tax return, or 12 months from the date the return is due, unless the time is extended by the Court for cause shown after notice to interested persons. See, Florida Probate Rule 5.400.

For estates required to file an estate tax return, evidence of payment in the form of the federal estate tax closing letter should be filed with the court.

All references to sections of the Florida Probate Code and the Florida Probate Rules are to the 2009 statutes and rules, and all statutes and rules are subject to amendment from time to time.

Charles L. Hoffman, Jr., Esq. | Shell, Fleming, Davis & Menge, P.A.
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