Probate and Estate Administration Flashcards
Personal Representative
Responsible for advancing the decedent’s estate through the probate process.
Testate: NSA
(1) Person named in the will
(2) Person selected by a majority in interests of person entitled to estate OR
(3) Any devisee
Intestate: SSN
(1) Surviving Spouse
(2) Person selected by a majority interest
(3) Nearest heir
Qualification to act as a personal representative
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(1) Adult over 18
(2) Mental capacity
(4) Not a (F)elon
(5) Florida Resident OR
(6) Family Member
A PR must file a bond to secure the faithful performance of her duties.
Family Member for Personal Rep. Test
Anyone related by lineal consanguinity to the decedent.
A spouse, brother, sister, aunt, uncle, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person.
–Spouse’s parents qualify, children qualify, but not spouse’s sibling (b/c not lineal)
Legally adopted child or adoptive parent of decedent
Spouse of a person otherwise qualified under the section
Order of Payments to Creditors
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(1) Expenses of (A)dministration
(2) (F)uneral expenses up to 6K
(3) (G)overnmental debts
(4) (I)llness expenses (from last illness)
(5) (F)amily allowance (18K for living expenses during probate)
(6) (C)hild Support
(7) (B)usiness debts
(8) All other claims
Simplified Probate
Allowed in Florida for two situations
(1) Summary Administration OR
(2) Ancillary Administration
Summary Administration
Probate estate value is less than $75K OR
The decedent has been dead for more than 2 years.
We only look at the PROBATE estate. The decedent can have substantial non-probate assets like homestead, joint tenancies, and life insurance.
Ancillary Administration
Available only when a non-resident dies leaving assets in Florida.
Statute of Limitations: Finality of Probate
Ends when the personal representative is discharged.
If any person has an objection to the probate proceedings, he/she needs to come forth BEFORE the personal representative is discharged.
Once the PR is discharged, probate is final, even if significant new evidence is discovered, like fraud or a conflicting will/codicil.
However, we may reopen probate if new assets are discovered.
Commencing Administration
Begins when an interested person files a petition for administration.
Exception to Power of Personal Representative
A court order is necessary to sell real property to continue the operation of the decedent’s unincorporated business for more than 4 months.
Joint Personal Representatives
For will executed before October 1, 1987, joint personal representatives must act by unanimous consent. For wills executed after the date, they may act by majority rule. A PR who objects in writing cannot be held liable for the actions of the majority.
Notice to Creditors
PR must publish a notice to creditors for two consecutive weeks in a newspaper in the county where the estate is administered. Must also mail actual notice to all reasonably ascertainable creditors.
Notice of Administration
PR must serve a copy of a notice of administration on the decedent’s spouses and beneficiaries. A copy must also be served on the trustee of the decedent’s revocable trust (if any) and any person who might be entitled to exempt property.
Inventory
W/in 60 days of issuance of letters of administration, PR must file a written inventory of the assets of the estate.
