The person who is the executor of a decedent’s estate is responsible for ensuring that the decedent’s estate is properly cared for and that the assets are distributed to others according to the decedent’s will or according to intestacy rules. In Florida, the executor is referred to as the personal representative. In the course of performing the tasks necessary to settle a decedent’s estate, the personal representative may complete transactions with third parties, such as selling estate assets. Unfortunately, there are occasions when for a variety of possible reasons a transaction between the personal representative and a third party should have never taken place. Fortunately, the law protects innocent third parties in such situations. If you are involved in a transaction with an estate and have concerns about the validity of the transaction, it is important that you understand the rules related to dealings with a personal representative, including the requirements of Florida Statutes, section 733.611- Persons dealing with the personal representative; protection. Contact a skilled Florida probate attorney at the Law Offices of Stephen Bilkis & Associates who has the knowledge, experiences, and resources to ensure that your legal rights are protected.
Appointment of Personal RepresentativeAnyone who wishes to serve as a personal representative must file a petition with the probate court asking to be appointed and requesting letters of administration. This is the case even if a testator named the personal representative in his (or her) will. Naming someone in a will is merely a way of nominating someone. That person will receive first consideration. However, the court will not appoint someone to serve as personal representative if that person is not qualified, regardless of the testator’s wishes. Under the Florida Probate Act, there are three basic requirements to serve as a personal representative. The petitioner must be least 18 years old, the petitioner must be mentally and physically capable of performing the duties of the job; and the petitioner must not have been convicted of a felony. If the court finds that the petitioner qualified, it will issue him letters of administration. Letters of administration serve as proof that the personal representative has legal authority to perform the activities required to settle the decedent’s estate such as selling estate property.
Responsibilities of the Personal RepresentativeThe personal representative’s main responsibilities include inventorying estate assets, paying estate debt, and ultimately distributing estate assets. In support of these three main activities, the personal representative may determine that it is in the estate’s interest to sell some of the estate assets. One of the reasons that this may be necessary is if the estate does not have sufficient liquid assets to pay all of the debts of the estate. Selling property would result in a needed infusion of cash into the estate.
Another reason that the personal representative may sell estate assets is because the will directed him to do so. It is not uncommon for testators to direct an estate be sold and the proceeds go to specific beneficiaries. For instance, a testator has kids and no spouse. Instead of leaving the family home to all three kids so that they have to figure out what to do with it, the testator directs that the house be sold and the proceeds split among the three kids equally.
A third reason to sell estate property is where there are assets in the estate that are not specific gifts and none of the beneficiaries want the asset. As an experienced Fort Lauderdale probate lawyer will explain, while a personal representative typically has broad authority in managing estate assets, absent a direction in the will to sell real property, the personal representative would have to get court approval to sell real estate that is part of a decedent’s estate.
Persons Dealing With the Personal Representative; ProtectionPersonal representatives are fiduciaries with respect to the estate. This means that they are in position of trust and their actions must be consistent with the law, with the terms of the will (if any), and in compliance with orders of the court. However, there are occasions in which a personal representative breaches his (or her) fiduciary duty in transactions with third parties. There are other instances in which due to mistake the personal representative completes a transaction with a third party that he should not have.
Under Florida Statutes, section 733.611- Persons dealing with the personal representative; protection, a person who in good faith enters into a transaction with a personal representative and the transaction is illegal or for any reason should not have happened, the person is protected as if the personal representative acted properly. The law does not require a third party to inquire as to whether or not the personal representative is acting appropriately and within the scope of his or her authority. Furthermore, the third party is also protected in instances in which a procedural irregularity or jurisdictional defect resulting the issuance of letters when they should not have been. Anyone who finds themselves in a situation where there are questions about the legality of a transaction with a personal representative should immediately discuss the situation with an experienced probate attorney in Fort Lauderdale.
Related Statutory ProvisionsExcept as provided in s. 733.613(1), a person who in good faith either assists or deals for value with a personal representative is protected as if the personal representative acted properly. The fact that a person knowingly deals with the personal representative does not require the person to inquire into the authority of the personal representative. A person is not bound to see to the proper application of estate assets paid or delivered to the personal representative. This protection extends to instances in which a procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is alive. This protection is in addition to any protection afforded by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
Contact the Law Offices of Stephen Bilkis & AssociatesThe attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing personal representatives, beneficiaries, heirs, and other parties in matters related to the administration of testate and intestate estates, estate disputes, and other estate matters. If you have questions related to the duties and authority of a personal representative, including the application of Florida Statutes, section 733.611- Persons dealing with the personal representative; protection, to your situation, we can help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.