Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By Steven J. Gibbs, Esq.
For those of you who’ve had family members pass away in Florida, you may have experienced being appointed to serve as the “executor” or “personal representative” of a Florida probate estate. Those of you who have served in this role may realize that there is much more to it than one might think.
The analogy that opening a Florida probate estate and serving as a personal representative is like running a business makes perfect sense for the following reasons:
1. The deceased person’s assets must be located, inventoried and accounted for by the personal representative on behalf of the beneficiaries.
When a loved one passes, things can start getting complicated in a hurry. It’s hard to believe, or maybe not, but it is common for adult children to start bickering over assets they sometimes attempt to access mom or dad’s home to secure certain belongings. This is where the Personal Representative’s role begins.
The Personal Representative should also make a written list of all assets just in case there are questions about what happened to certain items? It is not really that they are personally liable for every item but they are liable as the “Manager” of the estate and an appointee of the Probate Court.
2. The personal representative is accountable (to the court AND the beneficiaries) concerning the handling or mishandling of the assets.
Although the personal representative is not technically given authority by the court until they are “appointed”, they are well advised to be the first person on the scene if possible to take charge of the assets, and this does not mean distributing them unless everyone agrees. Depending upon the tone of the family, they should consider changing the locks in order to control the assets. The same advice applies to cars, boats, bank accounts, business assets, etc. The personal representative may be held accountable to the other beneficiaries if substantial assets go missing, so it is important to be proactive.
3. The personal representative may be obliged to address disputes between beneficiaries (stake holders) and may even be entailed in a lawsuit.
Disputes among beneficiaries are very common, and often the Personal Representative is involved or caught in the middle. In these circumstances, a Personal Representative can be very instrumental in resolving rather than heightening family disputes. Estates are often devoured by legal fees due to endless legal conflicts and the Personal Representative can be the voice of reason.
4. The personal representative is responsible as a decision maker for all other issues that arise and must confer with the probate attorney on legal matters.
In a Probate, the Personal Representative is the chief business decision maker. While the Probate Attorney will generally make all decisions concerning the legal matters, the business decisions will typically be carried out by the Personal Representative, perhaps after conferring with the Probate Attorney. Business decisions would include paying expenses, locating assets, accessing accounts, opening an estate account, selling assets and coordinating the filing of estate tax returns in cooperation with the estate accountant.
5. The personal representative may become involved in the negotiation of creditor claims and assuring that all assets are ultimately distributed pursuant to the estate and court documents.
Part of the Florida probate process involves publishing a Notice to Creditors and it is up to the creditors to respond. Generally, often the probate attorney will negotiate directly with the creditors and will work closely with the personal representative to determine which claims will be paid and which will be denied. The approach and strategy as well as the level of involvement of the personal representative will vary depending upon the jurisdiction. The probate court will ultimately order the distribution of the assets according to the will, if there is one, or if not then according to the state laws. In most cases, it is up to the personal representative to carry out the court’s order by cutting the checks.
So, now you know…if you’re ever appointed to this role, you’re essentially being directed to open and operate a business for a period of time that can last for years. Did I mention, just running a business, the personal representative is generally entitled to reasonable compensation. Of course, this entire process can be avoided through the prudent use of a revocable living trust.
Steven Gibbs founded the Gibbs Law Office in January 2009, committed to providing client-centered legal services.
Steve as he would rather be called, is not your typical attorney. If you appreciate the staunch egotistical mannerism of most firms, you will be delighted with Steve’s unpretentious approach to educating and then assisting his client. Instead of giving you his complacent and lofty ideas, he would rather pursue your expectations with professional conversation about resolving your concerns under the Law. It’s your life and it’s his job to make your legal expectations come true while using years of his guidance and knowledge.
Steve was admitted to the Minnesota Bar in 1999, the Florida Bar in 2007 and was recently admitted to the California bar. Keeping abreast of law changes in these three States, as well as the United States, assists him in all aspects of the types of law the firm practices.
Along his career path, he was an associate attorney for an insurance defense law firm; an in-house real estate negotiator for Target Corporation; and corporate counsel for Civix, LLC and Vice President for North American Properties where he was responsible for various real estate transactions, including legal issues and negotiating unresolved business issues. Prior to opening Gibbs Law Office, PLLC, he was an associate with the firm of Roberts & Engvalson, P.A. where he gained his knowledge of trusts, estate planing and Wills. He opened his own firm in 2008 and now focuses on laws that will enrich the needs of his clients throughout their lives and those of their children. The firm has developed a practice dealing only with Trusts and Estate Planning, Wills, Medicaid Planning, Elder Law, Real Estate, Business Law and Probate.
Quoting from Steve “I decided to practice in areas that families will need as they progress down life’s path. To help them with a solid foundation that will carry them throughout there lives is a rewarding experience for me and my staff.”
