James M. Weaver, P.A.

Am I the Personal Representative?

Are you really the Personal Representative? This is a question you should ask yourself before you hold yourself out to be the Personal Representative. If no Letters of Administration have been issued to you, then you are not the Personal Representative. If you begin acting as the Personal Representative while not appointed then you could be exposed to liability that you would otherwise be shielded from if you were formally appointed. A Personal Representative, also known in other states as an executor or administrator, is the person who will be in charge of administering a Decedent's probate estate.

First, did the Decedent have a Last Will and Testament (or “Will”)? If so, the original Will should be located and deposited with the Clerk of Court in the county where the Decedent resided. The original Will should name the nominated Personal Representative. Are you the nominated Personal Representative? If so, then keep reading, but you are still not the Personal Representative. If not, then the person nominated should be given a copy of the Will and they will keep you informed of the probate estate if you are a beneficiary.

But, what if the Decedent did not have a Will? Then, Florida Statute 733.301 applies and there is an order of priority to determine the Personal Representative. If you the Decedent was married when they passed away, the surviving spouse has first priority to be the Personal Representative. If the Decedent was not married, a majority of the heirs must agree on a Personal Representative. If the Decedent did not have a Will no one should hold themselves out to be the Personal Representative until a court has appointed them to that position.

Second, you need to determine if you are eligible to be the Personal Representative. Are you age 18 or older? Wonderful. Are you a U.S. citizen? Great. Are you a Florida resident? If not, you must be blood-related to the Decedent to be the Personal Representative. Are you a felon? If so, you will not be appointed PR. If you meet all the criteria, then you have met the eligibility requirements to be a Personal Representative.

Third, you need to determine if a probate estate should be occur. Did the Decedent pass away owning any assets in their name alone and/or no beneficiaries are listed? If there are no assets in need of probate you will not need to go through the probate process and the beneficiaries should be able to liquidate those assets without the need for a Personal Representative to be appointed. If there are assets that need to go to probate then seek advice from a Florida attorney to determine which type of probate should be instituted and in what county.

Now, a probate is needed, but you still have not yet been appointed the Personal Representative. There are two types of probate proceedings in Florida- a Formal Administration and a Summary Administration. If a Summary Administration is the probate vehicle that is used no Personal Representative will be appointed and all beneficiaries will stand together as Petitioners. But, if a Formal Administration is started then we will finally have a Personal Representative.

Two documents that will be submitted in the Formal Administration to appoint a Personal Representative are:

1. Letters of Administration; and

2. Order Admitting the Will to Probate and Appointing the Personal Representative/Order Appointing the Personal Representative.

Once these documents are signed by the Probate Judge, a Personal Representative will finally be appointed and may act with that authority.

Do you want to know if you are the Personal Representative? Call our office at (863) 657-0770">(863) 657-0770 to schedule a free probate consultation.

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