Probate FAQ: Resident Agent, Personal Representative and more

Do you have a question that you do not see an answer to? Please contact Teresa Hoffman, a Miami Probate Lawyer, for a free consultation at 305-372-2877 or 877-858-2977

Do I need an attorney to probate an estate in Florida?
The Personal Representative, unless he or she is also the sole beneficiary of the estate, must be represented by an attorney licensed to practice law in Florida .

What is a Resident Agent?
Before letters of administration to a Personal Representative are issued, a Resident Agent must be designated with a mailing address. This basically allows a designated person and address for any interested party or creditor to serve notice of a claim or interest. A licensed Florida attorney will generally act as resident agent and provide their address for service.

What is the Difference between Testate and Intestate Estate?
A testate estate is a probate estate of a person who dies leaving a Will. Intestate means the decedent did not have a will.

What are the requirements of a valid Will in Florida?
After 1975 neither holographic wills nor nuncupative wills are valid in Florida . A holographic will is entirely handwritten and signed by the testator and otherwise not executed with the formalities required by statute. A nuncupative will is an oral will before two witnesses. The Florida statute requires two witnesses who must sign in the presence of each other and in the presence of the testator (the person creating the will). Florida law no longer requires the testator declare that it is his last will and testament, nor do the witnesses need to know the document being signed is a will and they no longer have to be disinterested. They do need to assure the signature is the testator's and validate the circumstances under which the testator signed the will.

What are grounds for contesting a Will?
The most frequent grounds are improper execution but other various grounds for attacking a will are: undue influence; mistake; revocation; insane delusion; and lack of testamentary capacity.

What is a Personal Representative?
A Personal Representative is the person(s) responsible for carrying out the terms of the Will and administering the estate. The Personal Representative in most instances is solely responsible for decisions pertaining to the estate and will need guidance from a lawyer as to what the law requires for proper administration. The Personal Representative must be represented by a lawyer licensed to practice law in the State of Florida (unless the Personal Representative is a Florida attorney, or is the sole interested person in the Estate. As a general rule when there are more than one Personal Representative they should be represented by the same attorney.

What are the duties of the Personal Representative:
  1. Gather the estate assets and collect debts of the decedent;
  2. preserve, maintain and manage the assets during administration;
  3. arrange for liquidity to pay for the funeral and administration expenses and to pay the debtors and taxes; and
  4. make distribution pursuant to court order.

Who can be the Personal Representative?
Any person who is sui juris (having full capacity) and is a resident of Florida on the date of the decedent's death can be the Personal Representative. If the decedent left a will, the designation of the Personal Representative will often be included. A person cannot be a Personal Representative if they are under the age of 18, have been convicted of a felony, or are unable to perform any of the necessary duties. A person who is not a Florida resident can qualify under the following circumstances:

  1. If a legally adopted child;
  2. If related by consanguinity to the decedent;
  3. If a spouse, sibling, uncle, aunt, nephew or niece;
  4. If someone related by consanguinity to 1-3; or
  5. If is the spouse of any of those in 1-4.

Who is the Personal Representative when there is no Will?
The preference of appointment to the Personal Representative when there is no will is determined by Florida law. Usually the surviving spouse or closest relative will apply to the court for letters of administration upon petition to open an intestate estate. The court may also appoint a capable person who works for the court, or holds office under any judge exercising probate jurisdiction.

What property passes under the willed estate?
Generally all property that was in the sole name of the testator will pass under the willed estate. There are certain assets that pass by operation of law including life insurance policies and other assets that have a beneficiary designation unless of course the life insurance names the estate as the beneficiary. These assets will not pass through the probate estate and will not be subject to the claim of creditors. Other assets that pass by operation of law is real property and bank accounts that are titled with survivorship interests such as “join tenants with rights of survivorship” or “tenancy by the entirety” assets. These assets will pass automatically to the named survivor outside of the probate estate. Assets held in trust will not be subject to the probate estate.

What if there is more than one Will?
Generally a later will revokes all prior wills. Florida law permits a petition to revoke the probate of a will that is dated earlier than a will discovered during the administration or a petition to probate the later will.

What if a Will is lost or destroyed?
In Florida there is a presumption of revocation if a Will is lost or destroyed. In the event there is a copy of a lost will, a person may petition the court to probate the copy of the will. If it is an exact copy a disinterested witness will have to give testimony to the court. A draft of a will is not an exact copy.

What is Summary Administration?
In general, a summary administration is available for small estates not exceeding $75,000 or when the decedent has been dead for more than 2 years. In a summary administration, a Personal Representative will not be appointed.

How long do the Creditor's have to file a Claim against the Estate?
Generally, a claim against the estate must be filed within the later of 3 months from the first date of publication of the notice to creditors, or, as to any known creditor served with a copy of the notice to creditors, 30 days after the service of the notice. Any claim that is not timely filed is barred.

Who is entitled to the Estate when there is no Will (intestate)?
Florida law specifically sets forth entitlement to beneficiaries when there is no will. The surviving spouse is entitled to the entire intestate estate if there are no descendants and the descendants are entitled to the entire estate when there is no surviving spouse. If there is both a surviving spouse and descendants who are also the descendants of the surviving spouse then the surviving spouse takes the first $60,000 plus 50% of the balance and the other 50% goes to the descendants. If the descendants are not also the descendants of the surviving spouse, then the estate is split evenly, 50% to the surviving spouse and 50% to the descendants, without the first $60,000 going to the surviving spouse. If there is no surviving spouse and no descendants then it goes up to surviving parents, but if there are no parents surviving then it goes to siblings, and then to descendants of siblings.

Can a Florida Trustee Use Trust Assets to Pay His or Her Attorneys?
The general rule is that a trustee may use trust assets to hire an attorney to represent the trustee in any proceeding before the Court, without the approval of the beneficiaries and without court authorization. (F.S. 736.0802(10)). The Florida Statutes limit the authority of the Trustee to pay his or her attorney with trust funds, however, when the trustee is being sued by a beneficiary for a breach of fiduciary duty.
Pursuant to F.S. 736.0802(10)(a), if a beneficiary has asserted a claim or defense of breach of trust against a trustee, that trustee must provide written notice to every qualified beneficiary of the trust, (whose share of the trust may be affected by the payment of attorney’s fees), of that trustee’s intention to use trust assets to pay attorney’s fees and costs. The written notice must be delivered by any mail service requiring a signed receipt, or by process server. The written notice must inform the recipient that he or she has a right to seek an order from the court prohibiting that trustee from using trust assets to pay attorney’s fees and costs.
A beneficiary can obtain an order prohibiting the trustee from using trust assets to pay attorney’s fees from trust assets by making a reasonable showing of evidence that provides a reasonable basis for the court to conclude that there has been a preach of trust. (F.S. 736.0802(10(b)). If a beneficiary is successful in establishing a breach of trust under the rule, the court will enter an order prohibiting the trustee from using trust assets to pay further attorney’s fees and costs, and order the trustee to refund the trust for any trust assets previously taken to pay attorney’s fees and costs.
It is important to act quickly to prevent a trustee who is in breach of trust from draining trust assets to the detriment of the beneficiaries.

Need a lawyer or still have questions? Please contact Teresa Hoffman, a Miami Probate Lawyer, for a free consultation at 305-372-2877 or 877-858-2977.

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