Is it beneficial to appoint a Personal Representative in Probate

Probate Lawyers in Lakeland Florida. We Provide experienced Probate Legal Services in Polk County, Central Florida and the entire State of Florida.

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June 18, 2024

When we are approached by a prospective client seeking our probate services one of the first things we ask them is "what is the value of the estate" This is not a self-interested question as many people would like to believe given the popular depiction of lawyers being greedy, but is actually a question meant to help us understand which of the two classes of probate administration we can utilize to help all rightful heirs take possession of their inheritance. In the State of Florida, probate cases mostly fall into one of two broad categories: Formal Administration and Summary Administration and the Florida Statutes dictate the qualifications for each one in specific terms.

Formal Administration involves the appointment of Personal Representative of the Estate, which is Florida's equivalent of the term "Executor" This person is appointed by a Judge and takes an Oath before the court swearing to abide strictly by the terms of the will of the decedent, or, if the decedent left no valid will, then by the Florida Laws of Intestate succession. This Personal Representative will have broad powers as it relates to the administration of the estate, including access to confidential banking and financial information, the ability to transfer or sell real estate belonging to the deceased, the hiring of agents on behalf of the estate such as appraisers and contractors, and many other powers.

The advantage of having a Personal Representative in place is that any unknown factors can be investigated and resolved by the Personal Representative. If a client knows that their loved one had a bank account somewhere but doesn't know the account information or how much was in the account, a Personal Representative will be able to find out. If the decedent owned a vehicle at the time of their death that was being used as a personal conveyance by someone else, like their child or spouse, the personal representative will be able to transfer title of that vehicle. If a client suspects that the decedent had creditors and debts at the time of their death but doesn't know who they are or how much they may claim, the Personal Representative will be able to ascertain that information and negotiate with those entities on behalf of the estate. If you need to begin probate proceedings but aren't sure about all the details of your loved one's life or finances, Formal Administration can begin without any of that information.

Summary Administration matters proceed without the appointment of a Personal Representative and are reserved for probate matters where either the decedent has been deceased for over two years, meaning even if there were creditors of the estate, they are barred by law from claiming against it, or when the total value of an estate is less than $75,000.00. However, because a sworn and duly appointed Personal Representative is not involved to represent the estate, Judge's require more complete descriptions of property and enhanced transparency in any filed Petitions. While this enhanced level of information can be a barrier for some cases where all factors are not known, obtaining an Order of Summary Administration automatically closes a probate case and acts a kind of deed transferring any listed property to the parties that are entitled to it without having to file an inventory or any sort of formal accounting, which makes closing the case much simpler and shortens the length of probate proceedings considerably, sometimes by many months. This disparity between the two types of probate administration has given rise to an axiom within our firm: Formal Administration is simpler to begin, and more complicated to finish, Summary Administration is more complicated to begin, and simpler to finish.

As true as this statement is, the Florida Statues also allow, via F.S.735.2055, that "The Petition for Summary Administration may be filed at any stage of the administration of an estate if it appears that at the time of filing the estate would qualify." This means that even if an estate was opened as a Formal Administration, if during the course of due diligence, the Personal Representative finds out that the estate is valued at less than $75,000.00, the probate may be converted to a Summary Administration. The utility of this route arises from Florida's Homestead Exemption laws.Typically, the largest and most valuable asset of any estate will be real property, a d for most people that means the home they lived in during their lifetime. Florida's Homestead Exemption means that creditors may not claim against a decedent's homestead property in order to settle debts, i.e. the spouse or children of a decedent cannot be forced to sell their home in order to settle the affairs of the decedent. As far as creditors, and more importantly, the Court, is concerned, the value of any Homestead Property is $0.00. Even if your loved one's home is worth millions of dollars on the real estate market, in probate proceedings is it worth $0.00, which certainly falls below the $75,000.00 limit imposed by Summary Administration. This allows us to begin a probate as a Formal Administration, which allows the Personal Representative to investigate any unknown factors such as bank account details, and end it as a Summary Administration, speeding up the whole process and concluding the matter with less paperwork. Simple to begin and simple to finish; it's the best of both worlds.

Roughly half of our probate cases end up taking this trajectory since most people don't pass away with millions in cash assets or dozens of different accounts, so there's no need for the added expense and time of a formal accounting. Most people have the home they lived in, their savings accounts, and probably a vehicle or two, so probate should be fairly straightforward, and with our firm it can be. Many probate attorneys don't take this route since less time and paperwork means fewer billable hours and less money for them, but that's not our philosophy. We believe legal services should be affordable and obtainable to anyone who needs them, and we don't view our clients as paychecks, we see them as people who need help. Let us help you with your probate matters and we guarantee it will be resolved as quickly and as simply as possible.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.