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In Florida, a formal administration is generally initiated in the county where the decedent lived at the time of his or her death. Any person with an interest in the estate is allowed to petition the court for the formal administration process, and the Florida probate court will then appoint a “personal representative” to handle the entire administration process.
The personal representative
If a decedent died “testate”– which essentially means he or she died having executed a valid last will and testament – the person named in the will to serve as personal representative is generally the one who is entitled to serve as personal representative for the estate.
Determining who will act as personal representative is a bit trickier in cases where the decedent died “intestate,” meaning he or she did not leave a valid will. When there is no will, the decedent’s surviving spouse is first in line of priority to act as personal representative, according to the Florida probate code. If the decedent died without a surviving spouse, the heirs of the estate must vote a personal representative. The person who receives a majority vote – which is determined by a majority in interest in the estate and not by a majority in the number of the heirs – will usually be named personal representative. If the decedent’s heirs cannot reach a decision on which heir should be the personal representative, then the heir nearest in degree to the decedent will be entitled to preference in appointment.
However, a person cannot be named personal representative if that person:
- Is physically or mentally unable to perform the duties;
- Has been convicted of a felony; or
- Is under the age of 18.
Once the personal representative has been appointed, he or she must publish a notice to creditors in a local newspaper, published in the county where the estate is going to be administered. Additionally, the personal representative must serve the notice directly on all known creditors. The purpose of this is to put all creditors of the decedent on notice that an estate proceeding is in progress, and that each creditor has a limited time frame to file a claim against the estate. If a creditor does not file a claim with the probate court within 3 months from the time of the first publication of the notice to creditors in a newspaper, or within 30 days from the direct service of a notice to creditors, that creditor’s claim is forever barred. In addition to this, the Florida probate code prohibits any claims that are filed more than two years after the decedent’s death.
The personal representative must pay all valid, timely filed claims against the decedent’s estate. The estate must only be used to pay claims as long as it is sufficient to satisfy such claims. In other words, the personal representative is not liable on a personal level for claims filed against the estate.
The personal representative must ensure that all necessary tax returns are properly filed and that any taxes owed are paid. This generally includes the decedent’s final income tax return for the year the decedent passed away, as well as a separate tax return for any income earned by the decedent’s estate during the pendency of the formal administration.
Some estates will additionally be subject to the federal estate tax. Specifically, only estates worth more than $5.43 million are subject to the federal estate tax. This number is known as “federal estate tax exemption.” Estate assets with a value that is higher than the federal estate tax exemption are subject to the federal estate tax, and personal representatives must make sure to properly take care of it.
The Final Order of Distribution
After all valid creditor claims have been resolved, taxes have been paid, and the administration of the estate is complete, the personal representative will petition for a final order of distribution with the court. The final order of distribution provides for the payment of any outstanding expenses of the estate during administration, and instructs the personal representative to distribute all assets remaining in the estate to the beneficiaries in accordance with the decedent’s last will and testament. If the decedent died without a valid will, the final order of distribution will distribute the assets to the decedent’s heirs in accordance with the Florida intestacy laws.
For guidance, assistance, and representation during Florida probate, contact our Miami Probate Law Firm, Farshchian Law, P.A.
Call us at (305) 901-5628 or send us an email to Probate@JFRealEstateLaw.com.