Considerations For Selecting A Personal Representative (Executor) In Your Will To Ensure Your Wishes Are Honored
By: Vanessa Vasquez de Lara with Anwar Hadeed, Law Clerk
For most people, making sure that their final wishes are carried out properly is very important. One of the best ways to ensure this is done is to name a personal representative, otherwise known as an executor or administrator in other states, in your will of your estate prior to your death. While Florida law does not require that you use an attorney, doing so can help you determine who may be the best choice based on your specific situation. The personal representative will be able to make all legal decisions on your behalf after you are gone, so it is very important to choose the right person now. In their role, they will perform many actions such as selling or administering your estate, distributing property, paying creditors, filing any necessary lawsuits, generally carrying out all probate court requirements, and much more. When thinking about who to name or select as a personal representative, make sure to keep these tips in mind.
Responsibility is Essential
Being a personal representative of an estate is a big job and therefore is one that needs to be handled properly. Make sure you choose someone who is very responsible and up to the task. Consider how they have handled other important tasks in their life, their maturity level, and other factors to determine if they will be responsible enough to take on this large burden as you are selecting someone who will carry a large responsibility.
Consider Their Financial Position
Personal representatives often have to make significant decisions regarding the finances of your estate. Choosing someone who has been able to manage their own finances properly is a good idea. In some cases, the courts may require that the individual being named be bonded, which will only be possible if the individual has little financial risk associated with them. Choosing someone without a history of financial problems will help ensure everything goes smoothly.
Ask Permission Before Naming Someone
Being named as a personal representative of an estate comes with many significant legal responsibilities. This is not something that you want to surprise someone with upon your death. If you have someone in mind who you think you want to be named as personal representative, make sure to sit down with them first and ask their permission. Make sure you approach them with information about what their rights and responsibilities would be as personal representative. If they decline your request, respect their decision and find another qualified party. Additionally, it’s a good idea that you tell whoever does accept where to find your important records and documents in your home and if you have an attorney, their contact information so they can more easily coordinate everything when the time comes.
Consider the Emotional Toll
You are going to want to choose someone close to you, who you can trust to act in your interests. This makes sense, but it does come with one significant problem. Those who are closest to you will also be grieving in the weeks and months following your death. Consider how your death will impact an individual emotionally, and if you think they will be in a good mental state to carry out all the responsibilities that they will have as a personal representative.
Choose Someone Younger Than You
You can name multiple personal representatives and assign them a priority. If you name a brother or sister as the primary personal representative, but they pass away before you or become incapacitated, the responsibility will ‘roll’ to the next person in line. With this in mind, it is a good idea to choose someone significantly younger than you as at least one of the potential “backup” personal representatives.
When you are explaining to a person what being a personal representative is all about the following is a great guide of information in addition to you reviewing with them your general wishes and any specifics they should know about.
Duties and Powers of the Personal Representative
The personal representative is under a duty to settle and distribute the estate of the deceased in accordance with the decedent’s will as expeditiously and efficiently as possible and must act in the best interest of the estate. All real and personal property of the deceased, with the exception of homestead property, is entrusted to the personal representative for distribution. The personal representative is also authorized to retain assets owned by the decedent, perform the decedent’s contracts, receive assets from fiduciaries, allocate items of income or expense, satisfy and settle claims and distribute the estate in accordance with the Florida Statute 733.608.
Personal Representative Preferences in the Law
When having made a will, the order of preference in the judge granting and authorizing the letters of administration are as follows: 1) his or her personal representative as nominated by the will; 2) the person selected by a majority interest of persons entitled to the estate; and 3) a devisee under the will.
When not having made a will, the order of preferences in granting the letters of administration are as following: 1) the surviving spouse; 2) the person selected by a majority in interest of persons entitled to the estate; 3) the heir nearest in degree. These letters of administration are the document that allows you to demonstrate to any third party that you are the personal representative.
How is a Personal Representative Appointed?
The court aims follows the order of preference whether there is a will or not. When the beneficiaries cannot agree to the order of preference, or believe that he will is not valid, a hearing must be held wherein the court will take testimony in order to make a determination as to who should be appointed.
Who May Not Become a Personal Representative
Although one may be capable of personal representative appointment, a person who works for or holds public office under, the court or any judge exercising probate jurisdiction may not be appointed as a personal representative. Additionally, the following persons are exempt from becoming a personal representative: 1) a person who has been convicted of a felony; 2) a person who is mentally or physically unable to perform the duties; 3) anyone under the age of 18 years. Nonresidents of the decedent’s domiciled state generally cannot become personal representatives unless one of the following exceptions apply: 1) he or she is a legally adopted child or adoptive parent of the decedent; 2) he or she is related lineal consanguinity to the deceased; 3) A spouse, brother, sister, uncle, aunt, nephew, or niece of the decedent; or 4) the spouse of a person in this list.
Resignation and Removal of the Personal Representative
A personal representative may resign after appointment if all interested parties have been notified and if the interests of the estate are not jeopardized by the resignation.
However, the personal representative may be removed from his or her duties if any of the following occurs: 1) adjudication that the personal representative is incapacitated; 2) an incapacity that renders the personal representative incapable of discharging his or her duties; 3) failure to comply with a court order; 4) maladministration of the estate; 5) failure to account for the sale of property; 6) conviction of a felony; and 7) removal of domicile from Florida, if domicile was a requirement of initial appointment.
Compensation to the Personal Representative
A personal representative is entitled to a commission for his or her role as the personal representative of the estate and the duties involved in administering the estate. This compensation is based on the compensable value of the estate, which is the inventory value of the probate assets, as well as the income earned by the estate during the administration. However, if there is an existence of a will, and the will sets forth specific provision for the compensation of the personal representative, then the compensation owed to the personal representative shall abide by the provisions set forth in the will.
Personal representatives have the duty to give notice to all creditors to be published and served. The creditor shall then file a written statement of the claim. The personal representative may then file a proof of claim of all claims that he or she has paid or intends to pay. The personal representative is required to pay these claims within one year from the date of first publication of notice to the creditors of the estate. However, the personal representative should be aware that if the administration of the estate takes place two years or more after the death of the decedent of the estate, then the personal representative shall not be required to file the notices to creditors. Moreover, after the two-year period of the decedent’s death, the personal representative, nor the beneficiaries of the estate, shall be liable for any claim or cause of action against the decedent.
Closing the Estate
After the administration has been completed, the personal representative shall be discharged. This discharge shall release the personal representative and this shall bar any action against the personal representative from any action against the personal representative. However, this discharge does not prevent the further administration of the estate. Additionally, once this order of discharge has been executed, it may not be revoked based on the discovery of a will.
If you need help choosing a personal representative for your estate, better understanding the job of being a personal representative, or you would like to document who you have chosen, please contact Vasquez de Lara Law Group to schedule an appointment today. Our lawyers handle Florida estate planning and probate cases, so you can rest assured you are in good hands.