What to do as Personal Representative during probate

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August 12, 2024

We often hear concerns from prospective clients about the probate process with the frequent refrain of "I've never had any experience with this before." It's important to understand that unlike other kinds of legal proceedings, a probate attorney cannot represent a client in the same way that an attorney would be able to in a civil or even criminal proceeding. Depictions of attorneys in media like television and film often show them doing all the talking and taking complete control of a situation on behalf of their client, and while these depictions are always an exaggeration, they are especially unlike reality when it comes to probate.

Unlike criminal or civil attorneys, who act as a sort of proxy for their clients, a probate attorney works in collaboration with the Personal Representative of an estate and assures that all necessary documents are submitted in the proper order and with the correct and proper information. In probate, the Personal Representative handles the majority of the legwork with handling the affairs of the decedent, and relies on their attorney for guidance on how to go about it and what needs to be done next. In very complex or high value estates, being appointed Personal Representative of an estate is akin to taking on a full-time job, but in all Formal Administration matters, being appointed as a Personal Representative should be viewed as at least a part-time job.

Anyone pursuing probate action who is seeking to be appointed Personal Representative of an estate needs to be informed ahead of time that any probate judge has certain timetables and expectations that certain benchmarks must be met within a timeframe. Judges generally expect probate proceedings to last anywhere from 4 to 6 months from the date of issuance of Letters of Administration, and a probate attorney acts as a sort of time-keeper to make sure the Personal Representative adheres to this schedule. There are exceptions to this and, whenever reasonable, judges will extend these deadlines in order to afford more time for Personal Representatives to deal with the affairs of the decedent, but it's the job of the Personal Representative, NOT the probate attorney, to handle the affairs of the estate.

A Personal Representative essentially has the power to act exactly as the decedent would were they still alive. They take possession of the decedent's property and are permitted to sell or convey their property as the decedent would be able to, and have access to any information that the decedent themselves would have, such as bank records. This is why the Personal Representative signs a notarized Oath of Personal Representative which has the same effect as swearing in court to act lawfully and within the bounds of both the law and the will of the decedent. As this document is a legally-binding oath, if a Personal Representative fails or refuses to act appropriately or knowingly engages in misappropriation of an estate's assets, they are subject to severe criminal penalties. This severity is reflected by the inability of convicted felons to serve as Personal Representative of any estate, even if they are appointed by the will of the decedent, and they requirement by some judges that prospective Personal Representative submit affidavits or disclosures of criminal history before they will issue Letters of Administration.

When it comes to the nuts-and-bolts work of probate, the Personal Representative is granted specific authority and access to the accounts of the decedent. As such, most banks will refuse to communicate with probate attorneys unless the Personal Representative has given specific, written permission for them to do so. This is the same when requesting medical records, or when dealing with the DMV to transfer title of any vehicles owned by the decedent. A Personal Representative needs to understand that the actual process of gathering and distributing the possessions and funds of the decedent will be THEIR job, not their attorney's, and by extension, is is THEIR responsibility to do so in a timely manner. Any expenses of probate paid out of the estate's funds will be paid with checks written and signed by the Personal Representative, and their name and signature will appear on virtually every document that their attorney files with the court.

Communication skills are critical for a Personal Representative to complete probate in a timely manner. They will also need to keep good records and obtain receipts for any and all expenses throughout the process, particularly if they wish to claim any out-of-pocket expenses, such as travel expenses, from the estate, as Personal Representatives are entitled, by Florida Law, to compensation for their efforts. Once again: A Personal Representative should consider probate as a job, the court as their boss, and their attorney as a co-worker. Like any job, failing to fulfill duties has consequences, but unlike most jobs, failure can also come with legal repercussions. Our job is to work side-by-side with you to make sure the job of probate administration is done properly and on time.

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.