May 7, 2021
Many decedents pass away with no estate plan along with not legally selecting an executor to handle their final affairs. These affairs can include but are not limited to: Closing Accounts, Distribution of Assets and Property, and Attending Probate Court. When an estate has no will it is considered to be "intestate" and a probate court judge will be the one responsible for appointing a personal representative to manage the closing of the estate. These steps can assist with what you'll likely be faced with as a personal representative of an estate when the decedent does not have a will.
- Determine if Anyone Else Wants to be an Executor
If the decedent has not appointed a personal representative through a will, it does not mean that they have negotiated with someone to carry out their final estate matters. You should communicate with family members and close friends to see whether they feel like they should be appointed to the personal representative role or if the deceased had unofficially named someone. Overall, the court will have the final say if there is no will present, but they usually will appoint an interested candidate based on their relationship with the decedent. This appointing process will follow the hierarchy of: Spouse or Civil Union Partner, Child, Grandchild, Parent, Sibling, Niece/Nephew. If there are no surviving family members or none that show interests, the court can appoint a creditor or other interested person who applies.
2. File a Petition for Probate
The first action of a personal representative is filing paperwork with the probate court in the state and county where the deceased lived. In most cases, the personal representative will need to provide the certified original death certificate, the estimated value of the estate, along with a list of any surviving family members and beneficiaries. You should also be prepared to deliver an application or executor form, pay fees, and submit proof of your identity. It is wise to consult with an attorney to ensure you are informed on what documents will be needed to further the process.
3. Send out Notice of Application
A majority of states require that you notify any potential heirs and interested parties of the person's death and your intent to be the executor. In the state of Florida this varies based on if it is a Formal Administration or Summary Administration. We recommend that you consult with an attorney to better understand what is required of you as a personal representative.
4. Attend Probate Hearing
If you are the most immediate relative along the hierarchy to the decedent, the judge will likely appoint you with no conflictions. However, if their is closer relations to the decedent, the judge will likely require a written letter from the family member stating the do not want to serve as the personal representative for the decedent. It is smart to acquire these documents in advance of the court date in case you are questioned by the judge during the hearing.
5. Get a Probate Bond
As the personal representative of the estate, the court may require you to get a probate bond. This acts as a type of insurance policy against any mishandling of the estate by the personal representative. This bond protects you from any beneficiaries attempting to sue you of any wrongdoing during the process. It is wise to consult with a Probate Attorney to discuss the legal obligations of the personal representative and what is required.
As you can tell, the process of being appointed as a personal representative of an estate can be time-consuming and confusing. The personal representative position does impose some challenges, but it is very important and the decedent would likely be grateful for you carrying out their final wishes. If you have any questions regarding the personal representative process, please reach out to Florida Probates to discuss the best course of action for your concerns.