Duties of a Personal Representative
In Florida, the person or company responsible for identifying, gathering and distributing the assets of the deceased is the personal representative. While the personal representative is often a family member or close friend of the deceased, the judge may also appoint a trust company or bank to administer the probate estate. If you need to understand the duties of a personal representative because you were appointed to this position, the Ocala probate litigation attorneys of the Dean Law Firm can guide you through this process. We also represent beneficiaries who may be concerned whether the personal representative is acting in the best interests of the estate.Fiduciary Duties in Probate Administration
Because the duties of a personal representative are complex, the representative may need to retain legal counsel to fulfill legally mandated obligations, such as preparing a creditor claim. Besides hiring a lawyer, the personal representative may also find it necessary to engage an appraiser to determine the value of assets in the probate estate. If a personal representative is not qualified or cannot perform the required duties, the personal representative has a duty to resign.
As a fiduciary, the personal representative holds a position of particular reliance, trust, and faith to both the heirs and the estate. As such, personal representatives have a duty to act in the estate’s best interests even when those run counter to their own interests.
A personal representative is obliged to settle and distribute the decedent’s estate according to the law and the terms of a last will and testament. The personal representative must use the authority provided by the law, the will, and court orders, for the best interests of all interested persons.
The personal representative cannot be held liable for any act of administration or distribution if the act was authorized at the time it was taken, such as when a personal representative distributes the estate according to the terms of a probated will. Where the personal representative is not aware of a proceeding to challenge intestacy or a proceeding questioning his appointment or fitness, he has authority to distribute seemingly intestate assets to heirs.
Additionally, a personal representative owes a duty to act in good faith and provide prompt objections or defenses against any claims asserted against the estate.Dealing With Creditors
The specific duties of a personal representative in Florida include sending a Notice of Administration along with identifying and establishing a value for all the assets within the probate estate. The personal representative needs to publish a Notice of Creditors to inform people entitled to collect the decedent’s debts that the decedent has died. He also needs to identify any creditors that can be reasonably determined. The Notice should include the duration of time the creditor has to make a claim.
When debts are confirmed as valid, the personal representative must pay them. The personal representative needs to pay the expenses that were incurred during the estate administration. If claims are suspicious, the personal representative should initiate an adversary proceeding as necessary. In addition to paying debts, the personal representative has a duty to pay the estate’s taxes and prepare and file a last tax return for the estate.
After creditors and taxes have been paid, a personal representative owes a duty to pay all amounts required under the intestacy laws or according to the terms of the last will and testament.What can You do if a Personal Representative Fails to Discharge His Duties?
A seasoned probate attorney can help the personal representative comply with all legal requirements while administering the estate. When personal representatives do not seek or do not follow the advice of legal counsel, they may fail to discharge their duties to the estate. In such a situation, the beneficiaries and creditors may need to retain lawyers to protect their own interests.
Generally, a personal representative is not personally liable for liabilities arising out of her authorized actions taken to administer the estate. However, a personal representative may be responsible to answer for legal claims based upon intentional misconduct as well as mistakes or errors made.
Under Florida Statutes section 733.609, a personal representative’s fiduciary duties are the same as those of a fiduciary duty of a trustee of an express trust. A personal representative can be held accountable to interested persons for damages or losses arising out of the breach of the duty.Retain a Skilled Attorney to Help Administer an Estate in Ocala
If you were appointed as a personal representative or have concerns with how an estate is being administered, contact the Dean Law Firm. Michael E. Dean and Timothy S. Dean possess decades of experience handling probate administration and litigation matters in Ocala, Crystal River and The Villages, as well as in Sumter, Marion, Lake, Levy and Citrus Counties. Call us at (352) 387-8700 to set up a free consultation or contact us online.