Appoint a Personal Representative

In Florida, when someone passes away, the decedent’s estate must be settled, debt paid, and assets distributed. The person responsible for completing these activities is referred to as the personal representative. Generally, the decedent nominates the person he (or she) wants to serve as personal representative in his will. Regardless of whether or not the decedent had a will, a person wishing to serve as personal representative must be eligible, qualified, and formally appointed by the Florida circuit court before he can begin performing his duties as the personal representative. If you would like to be appointed as a personal representative and would like information about the process, contact a Fort Lauderdale probate attorney.

Just because a testator names a person as personal representative in his (or her) will does not mean that the named person is automatically the personal representative. Before a person can legally perform the duties of a personal representative, he must be appointed by the circuit court. The process begins with the will being filed with the circuit court, along with a petition to open the estate. The petition will ask the circuit court to acknowledge the validity of the will, if there is one, and to officially appoint the personal representative to act on behalf of the estate.

If the court approves the petition, the judge will sign an “Order Admitting Will to Probate and Appointing Personal Representative and Letters of Administration.” The letters of administration are critical as they are necessary for the personal representative to prove that he or she has been appointed as the personal representative by the court. For example, as an experienced Fort Lauderdale probate lawyer will explain, in order to open a bank account on behalf of an estate, the bank will require the personal representative to produce the letters of administration.

Under the Florida Probate Act, in order to be appointed a personal representative, there are three basic requirements:

• Must be at least 18 years old
• Must be mentally and physically capable of perform the duties of the job
• Must not have been convicted of a felony

There are occasions in which more than one person petitions to serve as personal administrator of an estate. The court must look at both who is qualified as well as who has priority. In the case of a testate estate, the person named in the will by testator has top preference. As long as the person is qualified and willing to serve, the court will grant his or her petition. Next in priority would be the person selected by a majority in interest of the persons entitled to the estate. Next would be a beneficiary under the will. If more than one beneficiary petitions the court will appoint the person who is best qualified.

In the case of intestate estates, the order of priority for appointment as personal representative is:

• The surviving spouse.
• The person selected by a majority in interest of the heirs.
• The heir nearest in degree. If more than one applies, the court may select the one best qualified.

In either a testate or an intestate estate, if no one wants to serve as personal representative, the court will appoint someone who works for the court or someone who is employed by any probate judge.

In addition to being qualified, a personal representative must file a bond with surety. A bond is a type of insurance policy. A bond is provided by a surety company to cover a certain amount. The bond is a guarantee that if the client (the personal representative) who purchases the bond fails in some way and as a result the estate suffers a financial loss the surety company will have to pay. Personal representatives are required to purchase a bond because of the extraordinary access that they have to the property in an estate and the decisions that they must make with respect to estate assets. To learn about the amount of bond that would be required, contact an experienced probate attorney in Fort Lauderdale.

The exceptions to the general rule that personal representatives must file a bond are where the will or court waives bond, or where the personal representative is a bank or a trust company. The amount of the bond is based on the value of the estate.

The probate attorneys serving Fort Lauderdale at the Law offices of Stephen Bilkis & Associates have extensive experience helping personal representatives during all phases of probate and administration. We have the knowledge and resources to guide you through the appointment process. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.