Duties of a Personal Representative in Probate Proceedings

When a person dies it is not uncommon for loved ones to have questions about how to handle and distribute the deceased’s property according to the terms of a will or trust, or under Florida law for those dying without wills, or intestate. Most estates must enter a process called probate in order to distribute the deceased’s property. Probate is a court-supervised process that identifies, gathers, and distributes the deceased’s assets, as well as pays creditors. A number of people participate in this process in different capacities working towards the end goal of settling the deceased’s financial affairs. The people typically involved in any probate proceeding include the clerk of the circuit court for the county in which the deceased lived at his/her death, the circuit court judge, a personal representative, an attorney for the personal representative, creditors, and the IRS on issues of owed taxes. Out of this group, one of the most important people in any probate matter is the personal representative. A personal representative is appointed by court and can be a person, bank or trust company. This person or entity wields a lot of influence over the disposition of an estate, so it is important to understand what exactly the role of the personal representative is and the responsibilities they carry. A brief discussion of their overarching duties and powers will appear below.

Duties

Generally, the personal representative has a duty to “settle and distribute” the deceased’s estate according to his/her wishes in as efficient a manner as possible and in keeping with the best interests of the estate. One of the initial duties of any personal representative is to submit an inventory and accounting of the deceased’s assets to the court. This inventory should list all property owned by the deceased on the date of death and the fair market value of each item. The personal representative has an ongoing duty to amend or supplement the inventory in the event new property is discovered or the fair market value for an item is later found to be incorrect. Additionally, if a beneficiary requests a written explanation on the method used to assign value to property owned by the deceased, the personal representative is required to provide it.

Powers

As a preliminary note, the personal representative has broad and complex authority to manage and dispose of the estate’s property, but this discussion will be limited to describing a general overview of the personal representative’s authority. Once an estate is open, the personal representative is empowered to take control and possession of the deceased’s property for the purpose of administration. The deceased’s homestead is exempt from this provision, and the personal representative has the option of the leaving real and tangible personal property with the presumed beneficiary unless control and possession of the property is necessary to administration.

The personal representative also has the authority to sell real property, but how freely that power can be exercised depends on the circumstances of the deceased’s estate. If the deceased died without a will or fails to grant adequate authority to dispose of property in a will, the personal representative can sell the property with court authorization. If, however, the will clearly authorizes a specific or general power to sell property of the estate, the personal representative may sell, lease or mortgage any property without court approval or confirmation of the sale.

The other main area where the personal representative is given broad authority is the paying of creditors of the estate. Personal representatives are required to pay a creditor within one year of notification of the decedent’s probate case unless the personal representative or other interested party objects to the creditor’s claim. If a creditor’s claim is accepted, the court may direct the personal representative as the type and value of property that should be reserved to cover the amount owed.

Speak to a Lawyer

There are many moving parts in any probate proceeding, and it may be difficult to determine who has authority to take action. Consulting with an attorney on your rights as a beneficiary is key to securing your share of the estate, especially if you believe the personal representative is not acting in the best interests of the estate. The Tampa law firm of Bubley & Bubley, P.A. offers legal services on many aspects of estate law, including probate proceedings. Contact us to schedule a confidential consultation.

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