The Personal Representative (Executor in some states)
If the decedent had a valid will, the judge will appoint the person or institution named by the decedent in his or her will to serve as personal representative, as long as the named person or bank or trust company is legally qualified to serve.
If the decedent did not have a valid will, the surviving spouse has the first right to be appointed by the judge to serve as personal representative. If the decedent was not married at his or her death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the judge will appoint a personal representative after a hearing is held for that purpose.
The personal representative is the person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix.”
A personal representative should engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.
The personal representative has a fiduciary duty to not just the beneficiaries of the estate but also the creditors of the estate. If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.
The attorney for the personal representative advises the personal representative on the rights and duties under the law, drafts the necessary legal documents, and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.
Initial Duties of the Personal Representative
- Notify Social Security of the death (often done by the funeral director)
- Notify the Veteran’s Administration of the death
- Identify, gather and safeguard assets
- Set up a checking account for the estate and transfer funds from existing bank accounts into it.
- Take custody of securities
- File life insurance claims
- Locate and identify creditors
- Arrange for the appraisal of assets
- Collect debts owed to the estate
Additional Duties of the Personal Representative
- Pay expenses for administration of estate (attorney’s fees)
- Pay valid creditor claims against the estate
- Defend the estate against improper claims
- Take steps to continue the operation of any business or enterprise owned by the dearly departed
- May have to sell property in order to raise cash for debts, expenses, or taxes
- May have to employ other professionals to assist in the administration of the estate such as CPAs or financial advisors
- File the estate’s income tax returns and pay any estate income taxes due
- File the estate’s estate tax returns (if required) and pay estate tax due (if any – for the vast majority of estates this will not be necessary)
- Pay any statutory amounts due, if any, to the surviving spouse\Distribute the estate’s assets to the beneficiaries
- Keep meticulous records of transactions concerning the estate
- Record receipts and disbursements of estate assets
- Distribute estate assets
- Close the estate