Probate, Formal Administration, Summary Administration – an Attorney Can Help.
A personal representative is responsible for settling your estate after your death. If you pass away with a valid will your estate is considered a “testate” estate and if you pass without a valid will your estate is considered “intestate” but don’t worry, the State of Florida has prepared a generic will for you if you didn’t create your own. Just don’t assume you will like what the legislature of Florida has written for you.
A “testate” estate is one that has a valid last will and testament. A person’s will should and usually does appoint or name a particular individual to serve as the Personal Representative. A second choice is usual to be listed and some testators choose to list as many as 5 or more so there is no doubt someone will outlive them and be able to serve in this role. The Court will almost always honor the decedent’s wishes as to who will be appointed to serve as PR.
If the person named in the will does not meet the criteria under Florida law to qualify as a PR the court will be forced to consider alternatives. Disqualifiers might be conviction(s) for crimes, mental decline or incapacity, or lack of proper age (under 18 years old). Another example is that in Florida a person can’t serve as a personal representative unless he/she is related to the decedent by blood (and adoption) or marriage if he/she is not a Florida resident.
Beneficiaries (also referred to as “heirs”) can object to a will, its various provisions, and object to the person named in the will as personal representative. This can result in an adversarial probate process and may well require a full trial. At a trial the opposing parties will present evidence and testimony in an attempt to convince the judge to invalidate the provisions of the will or to invalidate the entire will. In Florida the courts prefer to honor the decedent’s wishes. At the end of the trial the Judge makes the final decision as to who will serve as PR, it may be the listed person or it may be someone completely different.
In an estate without a will (also known as “intestate” estate) the laws of Florida determine where the assets shall flow and help determine who is the proper person to serve as the PR. Typically the PR choices begin with a surviving spouse, surviving children, other next of kin, and may also be a creditor or a creditor’s representative. If all the beneficiaries / heirs at law of the deceased agree to one person they can join together and submit a nomination of that person and the court will typically appoint that person if he/she is fully qualified.
An attorney is your greatest resource for information about probate, wills, and other estate planning matters. Our attorneys are available by phone 24/7 to help you, 321-631-0506 – with offices in Melbourne and Cocoa Village.