Florida Probate Litigation Lawyer Blog

Compensation of a Personal Representative in Florida

June 16, 2009 | by ktlaw4

For his or her services, a personal representative of an estate is entitled to compensation from the estate assets, without a court order. Florida Statute §733.617 provides the general rule in Florida for the commission of a personal representative. The Statute provides that the commission will be presumed reasonable for ordinary services provided by the personal representative. The commission is based on the value of the estate, which includes the inventory value of the probate estate assets and any income earned by those assets during administration. The commission is calculated as follows: 3% for the first $1 million, 2.5% above $1 million and not exceeding $5 million, 2% above $5 million and not exceeding $10 million, and 1.5% for all above $10 million.

For example, assume an estate where decedent was domiciled in Palm Beach, Broward or Dade County, is valued at $20 million dollars. The personal representative is entitled to 3 percent of the first $1 million dollars or $30,000. For the amount between $1 million and $5 million dollars, the personal representative is entitled to 2.5 percent or $100,000. For the amount between $5 million and $10 million dollars, the personal representative is entitled to 2 percent or $100,000. And for the amount above $10 million and up to our $20 million dollar estate, the personal representative is entitled to 1.5 percent or $150,000. Thus, for an estate worth $20 million dollars, the personal representative is entitled to $380,000 in commissions.

In addition to this commission, a personal representative is allowed additional reasonable compensation for extraordinary services including sales of real or personal property, conducting litigation for or against the estate, any involvement in court or IRS proceedings, running the decedent’s prior business and issues with protected homestead such as with a home in Fort Lauderdale, Florida.

Personal Representative’s Duty to Search for Beneficiaries of an Estate

March 11, 2009 | by ktlaw4

If you or someone you know has been appointed a personal representative of an estate then it is important to realize that Florida law imposes certain duties on a personal representative to act in the best interest of all interested persons. One of those duties includes determining all possible identities and locations of beneficiaries of that estate.

Although a personal representative does not have to prove beneficiaries’ identities beyond all certainty, they must use reasonable diligence to determine the identity and location of those people who may be heirs to an estate.

It is important for a personal representative to keep a detailed record of their methods of investigations, when trying to determine whom is a potential beneficiary or heir of an estate. This detailed record will allow a personal representative to show that they used an effective search method and prove they have fulfilled their duty. While a personal representative has the autonomy to conduct searches in a variety of ways, the following list indicates some preferred and commonly used search tools: government records from agencies such as Social Security Administration, Internal Revenue Service, The Census Bureau, the Department of Defense, the Department of Homeland Security, and various Property Appraisers websites. Other institutional record holders such as courthouses can provide birth certificates, marriage licenses, marriage applications, death certificates, employment records, adoption applications, records of divorce, child support obligations, custody determinations, and various other administrative paperwork. Personal files and miscellaneous records can also be found from other resources that include those documents contained in hospitals and cemeteries, financial records held by banks, such as deeds to houses and automobiles. Furthermore, it may be helpful to confer with insurance companies, credit unions, credit card companies, etc. Finally, a comprehensive search can include internet searches and other records contained by various civic organizations, religious institutions, and various family records such as genealogical records, pictures and family trees.

Reopening an Estate In Florida After Being Closed By the Court

March 9, 2009 | by Bradley H. Trushin

Perhaps the most important goal when it comes to settling one’s estate is to make sure that the desires of the decedent are properly met. In other words, a probate court’s goal is to make sure that the deceased’s assets are being distributed to those parties intended by the testator or those whom are legally entitled to benefit. If it can be demonstrated that a will was not settled in accordance with the decedent’s wishes, or certain individuals were improperly excluded or enriched a dispute may arise. Therefore, Florida Statute §733.903 allows for reopening of estate after it has been closed. In order to petition and then successfully reopen an estate that has been settled by a court, someone, whether in Miami, Fort Lauderdale or Palm Beach, must have good cause and for that reason, petitions to reopen estates are usually unsuccessful.

Good cause is limited to certain circumstances. For example, a trustee of an estate must show facts that allege some sort bad faith, such as fraud, or intentional errors in the initial estate determination. In some situations, motives such as greed and spite will influence an individual’s decision with regard to settling a family member’s estate. In this regard, if an estate was settled by a relative of a decedent, and this relative had reason to know that there were other family members (such as cousins, children, siblings, etc) that should also be considered heirs to the estate at issue, and the relative knowingly settled the estate without notifying or including these people, then those individuals could petition to a court to reopen the estate.

Another example that would justify the reopening of an estate under Florida law would be when a beneficiary under the will knew that the Testator was legally incompetent before settling the will, therefore making the will invalid. In other words, a person cannot a will is invalid if the testator is found to be incompetent. Incompetence can be established by legal disabilities which include being convicted of a felony, having been adjudicated as being mentally unable to understand the nature of the assets or implications of the will, or if one is under the age of 18. In estate cases, a beneficiary that knew of a Testator’s incompetence when the will was executed has a duty to notify the court and other beneficiaries. If it can be shown that the beneficiary knowingly neglected this duty, the other beneficiaries could reopen the estate if they properly petition the court.

Individual Liability of a Personal Representative in Florida

January 13, 2009 | by ktlaw4

When is a personal representative subject to personal liability? As a general rule, a personal representative is not personally liable for liabilities that arise out of the personal representative’s actions pursuant to administration of the estate. A personal representative may nevertheless subject themselves to personal liability.

In Florida, unless otherwise provided by contract, a personal representative is not personally liable on contracts entered into on behalf of the estate. However, a personal representative will be personally liable on a contract for attorney’s fees.

If the personal representative is personally at fault, he or she may be personally liable for obligations that arise from the control or ownership of the estate or for any torts committed by the personal representative during the administration of the estate. For instance, if the personal representative committed fraud against a creditor of the estate, that creditor can then sue the personal representative for damages incurred by the personal representative’s fraudulent acts.

Qualifications of a Personal Representative in Florida

January 6, 2009 | by ktlaw4

How can one determine whether a personal representative is qualified to be the personal representative? Generally, in the State of Florida any person who is sui juris and is a resident of Florida at the time of the death of the decedent is qualified to act as personal representative. A person is sui juris if they have the capacity to manage their own affairs and are not under any legal disability. A legal disability is any characteristic which by operation of law precludes an individual from having the legal capacity to perform an act. Some legal disabilities that may disqualify a person from acting as a personal representative include being convicted of a felony, having been adjudicated as being mentally or physically unable to perform the duties or if one is under the age of 18.

For example, when Aunt Alice was thirty-five years old, she had a new will drafted and it was validly executed. The will named her twelve year old nephew, Ned as the personal representative of the estate. If Aunt Alice lived to be over eighty years old that would mean her nephew Ned was nearly sixty years old at the time of her passing. Ned’s jealous brother Benjamin contested Ned’s qualifications as the personal representative, alleging that Ned was not qualified to be the personal representative of Aunt Alice’s estate because when the will was executed, Ned was not sui juris because he was only twelve years old at the time.

Assuming Ned still has legal capacity to conduct his own affairs, has not been convicted of a felony and is mentally and physically able to perform the duties of a personal representative, Ned has satisfied all of the qualifications required of a personal representative.