In Florida, the person in charge of an estate's probate process is called the personal representative. In other states, this role is called the executor or administrator.
The personal representative is given legal authority by probate court to settle your loved one's affairs and distribute inheritances to beneficiaries or heirs.
According to Florida law, every personal representative must post a probate bond. However, this requirement can be waived by a judge or by the instructions of your loved one's will.
Florida law has set standard compensation rates for personal representatives, which are based on the size of the estate.
In most states, the person who leads an estate through probate is called an executor or administrator. If your loved one died in Florida and you are in charge of their estate, the role is called the personal representative.
No matter what the role is called, you have the power to act on behalf of the estate to settle your loved one's financial and legal responsibilities and ultimately transfer their assets to their beneficiaries.
Whether your loved one designated you as the personal representative in their will or not, a probate judge will officially confer these responsibilities to you.
Before this happens, you must file a petition for probate. After this, the probate judge will issue a legal document called letters of administration, which officially appoints a personal representative and gives them authority to act on behalf of the estate.
Although the personal representative’s duties officially begin when the letters of administration are issued, preliminary steps include hiring a Florida probate attorney and making the initial filings with the court.
To qualify, a person must be at least 18 years old, mentally and physically able to perform the duties, and a Florida resident (though if you are a blood relative, you can be out-of-state and serve). In addition, convicted felons are not allowed to be personal representatives.
If the personal representative is named in a valid will, the judge appoints the person as long as they are legally qualified to serve. Florida law allows co-personal representatives to be appointed, but they must act in tandem and both must sign off on all documents.
If there is no valid will, the surviving spouse has the first right to be appointed.
Some people may name two children as personal representatives in a will to avoid favoritism, or name a co-personal representative to support an infirm surviving spouse.
If there is no valid will, the surviving spouse has the first right to be appointed. If the person was not married at the time of death, or if the surviving spouse declines to serve, the majority in interest of the person’s heirs has the second right to be appointed. If the heirs cannot agree among themselves, the judge appoints a personal representative after a hearing is held for that purpose.
Generally, a personal representative is required to furnish a probate bond (also called an executor bond or fiduciary bond) to protect the estate against any potential damages from breach of fiduciary duty, fraud, or other issues.
However, this requirement can be waived in the will or by the court. To request a waiver, you have to file a petition in court, and the judge will rule on the request.
Bond requirements can differ in each Florida Circuit Court, and the cost of a bond is determined by the court, weighing facts such as the estate's value, known creditors, any possible liens, and the personal representative's relationship with the estate's beneficiaries.
According to Florida law, a personal representative is entitled to compensation, calculated based on the size of the estate.
The state sets "reasonable compensation" at 3% of the value of the estate for the first $1 million, then 2.5% of value above $1 million up to $5 million. With additional value of the estate, the percentage continues to go down: it's 2% of the value above $5 million and up to $10 million, and 1.5% for everything above $10 million.
Further compensation is allowed for any "extraordinary services"—such as selling property, conducting litigation, and carrying on your loved one's business, to name just three examples—if the court and beneficiaries agree to the additional fee.
There are many different ways a personal representative may fail in their duty to the estate.
The most common reasons that beneficiaries may petition the court include physical or mental inability to perform the duties, including but not limited to: non-compliance with the court, failure in their fiduciary duties, felony conviction, or conflict of interest. Florida does not recognize personal conflicts or arguments with beneficiaries as valid reasons to remove a personal representative.
Florida probate law can be complicated, but in most cases, a Florida personal representative must work with an attorney on estate administration so they don’t have to manage the responsibilities without support. For additional peace of mind, a personal representative can choose any attorney and is not legally bound by the person’s wishes, even if the will mandates an attorney or firm ●
Probate is often a long and complex process, but it is also completely manageable if you stay organized and follow the instructions of the court. It’s definitely still a good idea to avoid the full probate process, if you can. We’ll walk you through whichever scenario applies to your loved one’s estate.