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Does a Personal Representative Need an Attorney in a Probate Matter?

by | Aug 15, 2019 | Estate Planning, Probate

As Central Florida Probate and Estate Administration attorneys, Akin Law P.A. has proven experience administering probate and helping beneficiaries organize and distribute assets. We dedicate our time to helping clients with many of the legal details involved in the often-complicated probate process.

It is a fact of life that we all will face, but one we are generally not prepared for: What happens to our assets after we die? Probate is a court process that will appoint an executor (called a “personal representative” in Florida) to administer the estate and distribute assets to the beneficiaries. As laws in each state vary, it is best to consult an attorney licensed to practice in and familiar with the laws of the state in which the decedent lived at his or her death. In Florida, a Will needs to be admitted to probate in order to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, then probate is needed to determine the intestate heirs of the decedent and transfer ownership of the decedent’s probate assets to them.

Who is involved in the probate process?

  • The Clerk of the circuit court in the county the decedent lived at the time of death.
    • The circuit court judge
    • The executor (Personal Representative)
  • The attorney who represents to the executor.
  • Debtors of the decedent, who file claims in the probate case to be paid for debts incurred by the decedent, such as credit card debt or outlying medical debts.
  • The I.R.S., as to any federal income taxes that the decedent might owe, or the probate estate may owe.
  • Estate beneficiaries, either those designated in the Will or by statute
  • Next of kin of the decedent who may not be named beneficiaries under the Will

What is a Personal Representative?

A Personal Representative is a person, bank or Trust company that the judge appoints to oversee the administration of the decedent’s probate estate. The personal representative has a legal duty to administer the probate estate pursuant to Florida law. Members of the decedent’s family are typically eligible to be appointed Personal Representative, but Florida law restricts the ability of certain non-family members to be appointed as Personal Representative.

Who can be a Personal Representative?

The personal representative can be an individual, bank, or Trust company. They must be a Florida resident, or a spouse, sibling, parent, child, or other close relative of the decedent.

Who does the court appoint to serve as a personal representative? If the decedent had a valid Will, then the judge typically appoints the person or institution named by the decedent, as long as the named person or bank or Trust company is legally qualified to serve. If there is no valid will, then a surviving spouse has the first right to be appointed Personal Representative, but others may also be appointed.

Why does the Personal Representative need an Attorney?

Florida law requires that a Personal Representative be represented by an attorney in nearly all cases. Even so, many legal issues can arise that would not be known or expected by non-attorneys. It is important for the Personal Representative to seek a qualified attorney to help in probate administration. The attorney will advise the Personal Representative on her rights, responsibilities and duties under the law. Failure to follow the law, even if it is an unintentional mistake, could have negative personal consequences to the Personal Representative. Look to Akin Law P.A. in DeLand for the legal guidance you need. Sherrille D. Akin and Dain C. Akin represent fiduciaries in probating the estate of a deceased family member of close friend and your family members to file and contest probate of a decedent’s estate. At Akin Law, Sherrille Akin and Dain Akin are the Central Florida Probate and Estate Administration attorneys to counsel you through the toughest times.

Do not hesitate to call anytime for a professional consultation on your legal concerns with probate and estate administration.