Florida Power of Attorney Pamphlet from the Florida Bar

ABOUT THE POWER OF ATTORNEY

 
What is a Power of Attorney?
A Power of Attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney (the “principal”) grants the right to act on the maker’s behalf to an agent. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.

Unless otherwise specified, the information in this booklet applies to Powers of Attorney signed on or after Oct. 1, 2011. Consult a lawyer regarding use and enforceability of Powers of Attorney executed prior to Oct. 1, 2011. The information in this booklet applies to all Powers of Attorney although special rules for Durable Powers of Attorney are noted.

What are some uses of a Power of Attorney?
A Power of Attorney may be used to give another the right to sell a car, home or other property. A Power of Attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal. A Power of Attorney may give others the right to do almost any legal act that the maker of the Power of Attorney could do, including the ability to create trusts and make gifts.

Where may a person obtain a Power of Attorney?
A power of attorney is an important and powerful legal document as it is authority for someone to act in someone else’s legal capacity. It should be drawn by a lawyer to meet the person’s specific circumstances. Pre-printed forms may fail to provide the protection desired.

Does a power of attorney need witnesses or a notary?
A Power of Attorney must be signed by the principal and by two witnesses to the principal’s signature, and a notary must acknowledge the principal’s signature for the Power of Attorney to be properly executed and valid under Florida law. There are exceptions for military Powers of Attorney and for Powers of Attorney created under the laws of another state.

What is a “principal?”
The “principal” is the maker of the Power of Attorney - the person who is delegating authority to another. This is the person who is allowing someone else to act on his or her behalf.

What is an “agent?”
The “agent” is the recipient of the Power of Attorney - the party who is given the power to act on behalf of the principal. The agent is sometimes referred to as an “attorney-in-fact”. The term “attorney-in-fact” does not mean the person is a lawyer.

What is a “third party?”
As used in this pamphlet, a “third party” is a person or institution with whom the agent has dealings on behalf of the principal. Examples include a bank, a doctor, the buyer of property that the agent is selling for the principal, a broker, or anyone else with whom the agent must deal on behalf of the principal.

What is a “Limited Power of Attorney?”
A “Limited Power of Attorney” gives the agent authority to conduct a specific act. For example, a person might use a Limited Power of Attorney to sell a home in another state by delegating authority to another person to handle the transaction locally through a “limited power of attorney.” Such a power could be “limited” to selling the home or to other specified acts.

What is a “General Power of Attorney?”
A “General Power of Attorney” typically gives the agent very broad powers to perform any legal act on behalf of the principal. A specific list of the types of activities the agent is authorized to perform must be included in the document.

What is a “Durable Power of Attorney?”
A Power of Attorney terminates if the principal becomes incapacitated, unless it is a special kind of Power of Attorney known as a “Durable Power of Attorney.” A Durable Power of Attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an incapacitated principal. A Durable Power of Attorney must contain special wording that provides the power survives the incapacity of the principal. Most Powers of Attorney granted today are durable.

Must a person be competent to sign a Power of Attorney?
Yes. The principal must understand what he or she is signing at the time the document is signed. The principal must understand the effect of a Power of Attorney, to whom he or she is giving the Power of Attorney and what property may be affected by the Power of Attorney.

Who may serve as an agent?
Any competent person 18 years of age or older may serve as an agent. Agents should be chosen for reliability and trustworthiness. Certain financial institutions with trust powers may also serve as agents.

What happens if the Power of Attorney was created under the laws of another state?
If the Power of Attorney was properly executed under the other state’s laws, then it may be used in Florida but its use will be subject to Florida’s Power of Attorney Act and other state laws. The agent may only act as authorized by Florida law and the terms of the Power of Attorney. There are additional requirements for real estate transactions in Florida and if the Power of Attorney does not comply with those requirements its use may be limited to banking and other non-real estate transactions. The third person may also request an opinion of counsel that the Power of Attorney was properly executed in accordance with the laws of the other state.

POWERS AND DUTIES OF AGENT

What activities are permitted by an agent?
An agent may perform only those acts specified in the Power of Attorney and any acts reasonably necessary to give effect to the specified acts. If an agent is unsure whether he or she is authorized to do a particular act, the agent should consult the lawyer who prepared the document or other legal counsel.

Two types of acts may be incorporated by a simple reference to the statutes in the Power of Attorney – the “authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes” and the “authority to conduct investment transactions as provided in section 709.08(2), Florida Statutes.” When either of these phrases is included in the Power of Attorney, all of the acts authorized by the referenced statute may be performed by the agent even though the specific acts are not listed in the Power of Attorney itself.

May an agent sell the principal’s home?
Yes. If the Power of Attorney has been executed with the formalities of a deed and authorizes the sale of the principal’s homestead, the agent may sell it. If the principal is married, however, the agent must obtain the authorization of the spouse.

What may an agent not do on behalf of a principal?
There are a few actions that an agent is prohibited from doing even if the Power of Attorney states that the action is authorized. An agent, unless also a licensed member of The Florida Bar, may not practice law in Florida. An agent may not sign a document stating that the principal has knowledge of certain facts. For example, if the principal was a witness to a car accident, the agent may not sign an affidavit stating what the principal saw or heard. An agent may not vote in a public election on behalf of the principal. An agent may not create or revoke a will or codicil for the principal. If the principal was under contract to perform a personal service (i.e., to paint a portrait or provide care services), the agent is not authorized to do these things in the place of the principal. Likewise, if someone had appointed the principal to be trustee of a trust or if the court appointed the principal to be a guardian or conservator, the agent may not take over these responsibilities based solely on the authority of a Power of Attorney.

What are the responsibilities of an agent?
While the Power of Attorney gives the agent authority to act on behalf of the principal, an agent is not obligated to serve. An agent may have a moral or other obligation to take on the responsibilities associated with the Power of Attorney, but the Power of Attorney does not create an obligation to assume the duties. However, once an agent takes on a responsibility, he or she has a duty to act prudently. (See Financial Management and the Liability of an Agent).

Is there a certain code of conduct for agents?
Yes. Agents must meet certain standards of care when performing their duties. An agent is looked upon as a “fiduciary” under the law. A fiduciary relationship is one of trust. If the agent violates this trust, the law may punish the agent both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail). The standards of care that apply to agents are discussed under Financial Management and the Liability of an Agent.

USING THE POWER OF ATTORNEY

When is a Power of Attorney effective?
The Power of Attorney is effective as soon as the principal signs it. However, a Durable Power of Attorney executed prior to Oct. 1, 2011 that is contingent on the incapacity of the principal (sometimes called a “springing” power), remains valid but is not effective until the principal’s incapacity has been certified by a physician. Springing Powers of Attorney may not be created after Sept. 30, 2011.

Must the principal deliver the Power of Attorney to the agent right after signing or may the principal wait until such time as the services of the agent are needed?
The principal may hold the Power of Attorney document until such time as help is needed and then give it to the agent. Often, the lawyer may fulfill this important role. For example, the principal may leave the Power of Attorney with the lawyer who prepared it, asking the lawyer to deliver it to the agent under certain specific conditions. Because the lawyer may not know if and when the principal is incapacitated, the principal should let the agent know that the lawyer has retained the signed document and will deliver it as directed. If the principal does not want the agent to be able to use the Power of Attorney until it is delivered, the Power of Attorney should clearly require the agent to possess the original because copies of signed Powers of Attorney are sufficient for acceptance by third parties.

How does the agent initiate decision-making authority under the Power of Attorney?
The agent should review the Power of Attorney document carefully to determine what authority the principal granted. After being certain that the Power of Attorney gives the agent the authority to act, the Power of Attorney (or a copy) should be taken to the third party (the bank or other institution, or person with whom you need to deal). Some third parties may ask the agent to sign a document such as an affidavit, stating that the agent is acting properly. (The agent may wish to consult with a lawyer prior to signing such a document.) The third party should accept the Power of Attorney and allow the agent to act for the principal. An agent should always make it clear that he or she is signing documents on behalf of the principal.

How should the agent sign when acting as an agent?
The agent will always want to add after his or her signature that the document is being signed “as agent for” the principal. If the agent only signs his or her own name, he or she may be held personally responsible for whatever was signed. As long as the signature clearly indicates that the document is being signed in a representative capacity and not personally, the agent is protected. Though lengthy, it is, therefore, best to sign as follows:

Howard Rourk, as agent for Ellsworth Toohey. In this example, Howard Rourk is the agent, and Ellsworth Toohey is the principal.

What if the third party will not accept the Power of Attorney?
If the Power of Attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the document. The third party is required to give the agent a written explanation of why they are refusing to accept the Power of Attorney within a reasonable time after it is presented to the third party.

Under some circumstances, if the third party’s refusal to honor the Power of Attorney causes damage, the third party may be liable for those damages and even attorney’s fees and court costs. Even mere delay may cause damage and this, too, may be actionable. It is reasonable, however, for the third party to have the time to consult with a lawyer or an internal legal department about the Power of Attorney. Delay for more than a short period may be unreasonable. Upon refusal or unreasonable delay, consult an attorney.

Why do third parties sometimes refuse Powers of Attorney?
Third parties are often concerned whether the document is valid. They do not know if it was executed properly or forged. They do not know if it has been revoked. They do not know if the principal was competent at the time the Power of Attorney was signed. They do not know whether the principal has died. Third parties do not want liability for the improper use of the document. Some third parties refuse to honor Powers of Attorney because they believe they are protecting the principal from possible unscrupulous conduct. If your Power of Attorney is refused, talk to your attorney.

What if a third party requires the agent to sign an affidavit prior to honoring the Power of Attorney?
A third party is authorized by Florida law to require the agent to sign an affidavit (a sworn or an affirmed written statement), stating that he or she is validly exercising the authority under the Power of Attorney. If the agent wants to use the Power of Attorney, the agent may need to sign the affidavit if so requested by the third party. The purpose of the affidavit is to relieve the third party of liability for accepting an invalid Power of Attorney. As long as the statements in the affidavit are true at that time, the agent may sign it. The agent may wish to consult with a lawyer prior to signing it. (You may find a sample Affidavit of Agent at the end of this booklet.)

What else may the third party require?
A third party may also make a reasonable request for an opinion of counsel as to any legal matter concerning the Power of Attorney, including its proper execution under the laws of another state. A third party may request a certified English translation if any part of the Power of Attorney is in a language other than English.

May the agent employ others to assist him or her?
Yes. The agent may hire accountants, lawyers, brokers or other professionals to help with the agent’s duties, but may generally not delegate his or her responsibility as agent. The Power of Attorney was given by the principal to the agent and the agent does not have the right to transfer that power to anyone else. It is important that the agent keep in mind his or her fiduciary duties when hiring professionals to help. The agent is allowed to delegate investment responsibility if the requirements of Florida Statutes section 518.11 are followed by the agent, unless the Power of Attorney prohibits such a delegation.

RELATIONSHIP OF POWER OF ATTORNEY TO OTHER LEGAL INSTRUMENTS

What is the difference between an agent and an executor or personal representative?
An executor, termed a “personal representative” in Florida, is the person who takes care of another’s probate estate after that person dies. An agent may only take care of the principal’s affairs while the principal is alive. A personal representative may be named in a person’s will and is appointed by the court to administer the estate.

What is the difference between a “trustee” and an “agent”?
Like a Power of Attorney, a trust may authorize an individual (the “trustee”) to act for the maker of the trust during the maker’s lifetime. Like an agent, the trustee may manage the financial affairs of the maker of the trust. A trustee only has power over an asset that is owned by the trust. In contrast, an agent may have authority over all of the principal’s non-trust assets. Another important distinction is that a trustee may continue acting for the maker of the trust after the maker of the trust dies. In contrast, the Power of Attorney expires upon the death of the principal. Whether a trust or an agent is the most appropriate tool for a specific situation is a question that should be addressed to an attorney.

What if the principal has a “guardian” appointed by the court?
If no less restrictive appropriate alternative is available, then a guardian may be appointed by the court for a person who no longer can care for his or her person or property. A person who has a guardian appointed by the court may not be able to lawfully execute a Power of Attorney. If an agent discovers that a guardian has been appointed prior to the date the principal signed the Power of Attorney, the agent should advise his or her lawyer. If a guardianship court proceeding is begun after the Power of Attorney was signed by the principal, the authority of the agent is automatically suspended until the petition is dismissed, withdrawn or otherwise acted upon. The law requires that an agent receive notice of the guardianship proceeding. If a guardian is appointed, the Power of Attorney is no longer effective unless it is a Durable Power of Attorney and the court allows the agent to continue to exercise certain powers. A power to make health care decisions, however, is not suspended unless the court specifically suspends this power. If the agent learns that guardianship or incapacity proceedings have been initiated, he or she should immediately consult with a lawyer.

May a Power of Attorney avoid the need for guardianship?
Yes. If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a Durable Power of Attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.

HEALTH CARE AND THE POWER OF ATTORNEY

What is the relationship between a Declaration of Living Will and Power of Attorney?
A declaration of living will specifies a person’s wishes as to the provision or termination of medical procedures when the person is diagnosed with a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will and a health care surrogate designation are termed “health care advance directives” because they are made in advance of incapacity and need. If a person is unable to understand or unable to communicate with a doctor, a living will is a legally enforceable method of making sure the person’s wishes are honored. Whether a person has a living will, a person’s agent may make health care decisions if the Durable Power of Attorney specifically gives this right.

What is a Health Care Surrogate Designation and how does it differ from a Power of Attorney?
A Health Care Surrogate Designation is a document in which the principal designates someone else to make health care decisions if the principal is unable to make those decisions. Unlike a Power of Attorney, a health care surrogate decision-maker has no authority to act until such time as the attending physician has determined the principal lacks the capacity to make informed health care decisions. (In instances where the attending physician has a question as to whether the principal lacks capacity, a second physician must agree with the attending physician’s conclusion that the principal lacks the capacity to make medical decisions before a surrogate decision-maker’s authority is commenced.) Many medical providers prefer a designation of health care surrogate for health care decisions because the document is limited to health care. However, a Durable Power of Attorney specifically for health care may enable the agent to assist the principal in health care decisions even though the principal may not completely lack capacity.

TERMINATION OF THE POWER OF ATTORNEY

When does a Power of Attorney terminate?
The authority of any agent under a Power of Attorney automatically ends when one of the following things happens: (1) the principal dies, (2) the principal revokes the Power of Attorney, (3) a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force, (4) the purpose of the Power of Attorney is completed, or (5) the term of the Power of Attorney expires. In any of these instances, the Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as agent, he or she is acting without authority.

When does a particular agent’s authority terminate?
The authority of an agent under a Power of Attorney automatically ends when one of the following things happens: (1) the agent dies, (2) the agent resigns or is removed by a court, (3) the agent becomes incapacitated, or (4) the filing of a petition for dissolution of marriage if the agent is the principal’s spouse unless the Power of Attorney provides otherwise.

What is the procedure for a principal to revoke a Power of Attorney?
The revocation must be in writing and may be done by a subsequent Power of Attorney. Notice should be served on the agent and any other party who might rely on the power. The notice should be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with your lawyer to be sure proper procedures are followed.

Court proceedings were filed to appoint a guardian for the principal or to determine whether the principal is incapacitated. How does this affect the Power of Attorney?
If a court proceeding to determine the principal’s incapacity has been filed or if someone is seeking to appoint a guardian for the principal, the Power of Attorney is automatically suspended and an agent must not continue to act. The power to make health care decisions, however, is not suspended unless the court specifically suspends this power.

Authority as agent has been suspended because guardianship proceedings are pending for the principal. Now there is an emergency but no guardian has been appointed yet. What now?
The agent may ask the court for special permission to handle the emergency even though the Power of Attorney remains otherwise suspended. Contact your lawyer.

FINANCIAL MANAGEMENT AND THE LIABILITY OF AN AGENT

What is “fiduciary responsibility?”
An agent is a fiduciary and as such has multiple duties when acting for the principal. These include an overriding duty to do only those acts authorized by the Power of Attorney, and when performing those acts to act in accordance with the principal’s reasonable expectations, to act in the principal’s best interest, and to attempt to preserve the principal’s estate plan. The preservation of the estate plan is dependent on a number of factors, including the agent’s knowledge of the plan and the needs and desires of the principal. If the agent assumes responsibility for the principal’s investments, the agent has a duty to invest and manage the assets of the principal as a prudent investor. This standard requires the agent to exercise reasonable care and caution in managing the assets of the principal. The agent must apply this standard to the overall investments and not to one specific asset. If an agent possesses special financial skills or expertise, he or she has an obligation to use those skills. The agent is required to keep careful records and may be required to provide an accounting. Everything the agent does for the principal should be written down, and the agent should keep all receipts and copies of all correspondence, and consider logging phone calls so if the agent is questioned, records are available. Agents should consult with lawyers to be sure they understand all of the duties applicable to them.

How should the agent sign when acting as an agent?
The agent will always want to add after his or her signature that the document is being signed “as agent for” the principal. If the agent only signs his or her own name, he or she may be held personally responsible for whatever was signed. As long as the signature clearly indicates that the document is being signed in a representative capacity and not personally, the agent is protected. Though lengthy, it is, therefore, best to sign as follows:

X__________

Howard Rourk, as agent for Ellsworth Toohey.

In this example, Howard Rourk is the agent, and Ellsworth Toohey is the principal.

Probate in Florida Pamphlet from the Florida Bar

1. WHAT IS PROBATE?

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

There are two types of probate administration under Florida law: formal administration and summary administration. This pamphlet will primarily discuss formal administration.

There is also a non-court supervised administration proceeding called "Disposition of Personal Property Without Administration." This type of administration only applies in limited circumstances.

2. WHAT ARE PROBATE ASSETS?

Probate administration only applies to probate assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.

For example:

• A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
• A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent's estate is a probate asset.
• Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
• Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive, but is intended to be illustrative.

3. WHY IS PROBATE NECESSARY?

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.

Probate is also necessary to wind up the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

4. WHAT IS A WILL?

A will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In his or her will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent can also designate a personal representative (Florida’s term for an executor) of his or her choosing to administer the probate estate.

If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.

5. WHAT HAPPENS IF THERE IS NO WILL?

If someone dies without a valid will, he or she is “intestate.” Even if the decedent dies intestate, his or her probate assets are almost never turned over to the State of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the decedent’s probate assets if he or she died intestate.

If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority:

• If the decedent was survived by his or her spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, and more remote descendants.
• If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.
• If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.
• If the decedent was not married at his or her death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by his or her own descendants, the share of the decedent’s estate which would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.
• If the decedent was not married at his or her death and had no living descendants, the decedent’s probate estate will pass to the decedent's surviving parents, if they are living, otherwise to the decedent's brothers and sisters.
• Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

The distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent's name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in leui of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.

6. WHO IS INVOLVED IN THE PROBATE PROCESS?

Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate:

• Clerk of the circuit court in the county in which the decedent was domiciled at the time of the decedent’s death.
• Circuit court judge.
• Personal representative (or executor).
• Attorney providing legal advice to the personal representative throughout the probate process.
• Those filing claims in the probate proceeding relative to debts incurred by the decedent during his or her lifetime, such as credit card issuers and health care providers.
• Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe, and, sometimes as to federal gift, estate or generation-skipping transfer tax matters.

7. WHERE ARE PROBATE PAPERS FILED?

The decedent’s will, if any, and certain other documents required in order to begin the probate proceeding are filed with the clerk of the circuit court, usually for the county in which the decedent lived at the time of his or her death. A filing fee must be paid to the clerk. The clerk then assigns a file number, and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.

In the interest of protecting the privacy of the decedent’s beneficiaries, any documents that contain financial information pertaining to the decedent’s probate estate are not available for public inspection.

8. WHO SUPERVISES THE PROBATE ADMINISTRATION?

A circuit court judge presides over probate proceedings.

The judge will rule on the validity of the decedent’s will, or if the decedent died intestate, the judge will consider evidence to confirm the identities of the decedent’s heirs as those who will receive the decedent’s probate estate.

If the decedent had a will that nominated a personal representative, the judge will also decide whether the person or institution nominated is qualified to serve in that position. If the nominated personal representative meets the statutory qualifications, the judge will issue "Letters of Administration," also referred to simply as "letters.” These “letters” are important evidence of the personal representative’s authority to administer the decedent’s probate estate.

If any questions or disputes arise during the course of administering the decedent’s probate estate, the judge will hold a hearing as necessary to resolve the matter in question. The judge’s decision will be set forth in a written direction called an "order."

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

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."

The personal representative has a legal duty to administer the probate estate pursuant to Florida law. The personal representative must:

• Identify, gather, value, and safeguard the decedent’s probate assets.
• Publish a "Notice to Creditors" in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
• Serve a "Notice of Administration" to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify these creditors of the time by which their claims must be filed.
• Object to improper claims, and defend suits brought on such claims.
• Pay valid claims.
• File tax returns and pay any taxes properly due.
• Employ professionals to assist in the administration of the probate estate; for example, attorneys, certified public accountants, appraisers and investment advisors.
• Pay expenses of administering the probate estate.
• Pay statutory amounts to the decedent’s surviving spouse or family.
• Distribute probate assets to beneficiaries.
• Close the probate 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.

10. WHO CAN BE A PERSONAL REPRESENTATIVE?

The personal representative can be an individual, or a bank or trust company, subject to certain restrictions.

To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child, or other close relative of the decedent. An individual who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.

A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as the personal representative.

11. WHO WILL THE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE?

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.

12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?

A personal representative should always 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 attorney for the personal representative advises the personal representative on their rights and duties under the law, 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.

A provision in a will mandating that a particular attorney or firm be employed as attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.

13. WHAT ARE THE ESTATE’S OBLIGATIONS TO ESTATE CREDITORS?

One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to "known or reasonably ascertainable" creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.

The legitimate debts of the decedent, specifically including proper claims, taxes, and expenses of the administration of the decedent’s probate estate, must be paid before making distributions to the decedent’s beneficiaries. The court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.

14. HOW IS THE INTERNAL REVENUE SERVICE (IRS) INVOLVED?

The decedent’s death has two significant tax consequences: It ends the decedent's last tax year for purposes of filing the decedent’s federal income tax return, and it establishes a new tax entity, the "estate."

The personal representative may be required to file one or more of the following returns, depending upon the circumstances:

• The decedent’s final Form 1040, Federal Income Tax Return, reporting the decedent’s income for the year of the decedent's death.
• One or more Forms 1041, Federal Income Tax Returns for the Estate, reporting the estate’s taxable income.
• Form 709, Federal Gift Tax Return(s), reporting gifts made by the decedent prior to death.
• Form 706, Federal Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.

The personal representative may also be required to file other returns not specifically mentioned here.

The personal representative has the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from probate assets in the decedent’s estate, and not by the personal representative from his or her own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.

The estate will not have any tax filing or payment obligations to the State of Florida; however, if the decedent owed Florida intangibles taxes for any year prior to the repeal of the intangibles tax as of January 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.

15. WHAT ARE THE RIGHTS OF THE DECEDENT’S SURVIVING FAMILY?

The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.

For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse may also have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30% of all of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds prior to final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive his or her rights to an elective share, family allowance, and/or exempt property in a valid pre-marital or post-marital agreement.

In addition, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.

The existence and enforcement of these statutory rights requires knowledge about the applicable laws and procedures and is best handled by an attorney.

16. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES HAVE IN THE DECEDENT’S PROBATE ESTATE?

Except as provided in the immediately preceding section, a Florida resident has the right to entirely disinherit anyone. It is not necessary to give the disinherited beneficiary a nominal gift of, for example, $1.00.

17. HOW LONG DOES PROBATE TAKE?

It depends on the facts of each situation; some probate administrations take longer than others. For example, the personal representative may need to sell real estate prior to settling the probate estate, or to resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances, if present, would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.

If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the probate estate are first due within 12 months after the court issues Letters of Administration to the personal representative. This period can be extended if necessary.

If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death; however, the time for filing the return can be extended for another six months. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.

18. HOW ARE THE PERSONAL REPRESENTATIVE’S COMPENSATION AND PROFESSIONAL FEES DETERMINED?

The personal representative, the attorney, and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants), are entitled by law to reasonable compensation.

The personal representative’s compensation is usually determined in one of five ways: (1) as set forth in the will; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who will bear the impact of the personal representative’s compensation; (4) the amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or (5) as determined by the judge.

The fee for the attorney for the personal representative is usually determined in one of three ways: (1) as agreed among the attorney, the personal representative, and the persons who bear the impact of the fee; (2) the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or (3) as determined by the judge.

19. WHAT ALTERNATIVES TO FORMAL ADMINISTRATION ARE AVAILABLE?

Florida law provides for several alternate abbreviated probate procedures other than the formal administration process.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida (less property which is exempt from the claims of creditors; for example, homestead real property in many circumstances) is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Those who receive the estate assets in a summary administration generally remain liable for claims against the decedent for two years after the date of death. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Another alternative to the formal administration process is "Disposition Without Administration." This is available only if probate estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of (1) up to $6,000 in funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.

20. WHAT IF THERE IS A REVOCABLE TRUST?

If the decedent had established what is commonly referred to as a “Revocable Trust,” a “Living Trust” or a “Revocable Living Trust,” in certain circumstances, the trustee may be required to pay expenses of administration of the decedent's probate estate, enforceable claims of the decedent's creditors and any federal estate taxes payable from the trust assets.

The trustee of such a trust is always required to file a "Notice of Trust" with the clerk of the court in the county in which the decedent resided at the time of the decedent’s death. The notice of trust gives information concerning the identity of the decedent as the grantor or settlor of the trust, and the current trustee of the trust. The purpose of the notice of trust is to make the decedent’s creditors aware of the existence of the trust and of their rights to enforce their claims against the trust assets.

All of the tasks which must be performed by a personal representative in connection with the administration of a probate estate must also be performed by the trustee of a revocable trust, though the trustee generally will not need to file the same documents with the clerk of the court. Furthermore, if a probate proceeding is not commenced, the assets comprising the decedent’s revocable trust are subject to a two-year creditor’s claim period, rather than the three-month non-claim period available to a personal representative.

The assets in the decedent’s revocable trust are a part of his or her gross estate for purposes of determining federal estate tax liability.


The material in this pamphlet represents general legal advice. Because the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.