Will Administration Flashcards by Tori O.

Probate is

the process of administering a decedent’s testate and intestate estate. The property subject to that administration is called the probate estate. Probate is commenced after the death of the decedent.

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Probate Court?

In Florida, the circuit court has exclusive jurisdiction over the probate process.

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The probate process is commenced with…

the filing of a will.

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To prove a will that is not self-proving, a petitioner must

file the oath of one of the witnesses to the will.

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If a witness is not available, cannot remember, or is incompetent…

The personal representative, or a disinterested person, may swear to the authenticity of the will

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If a will is self-proving, the will may be admitted into probate…

without further proof

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If a will is lost or destroyed, any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by

the testimony of two disinterested witnesses; or

if a correct copy is provided, the will shall be proved by one disinterested witness

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If a will or codicil is discovered after administration of an estate has commenced but before administration has closed,

the will or codicil may be admitted to probate on petition of any interested person

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The person who administers an estate is called

the personal representative.

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To qualify for selection as a personal representative, a person must:

(1) be at least 18 years old;
(2) have mental capacity; and
(3) have no felony conviction.

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Generally, a personal representative must be a resident of Florida. However, a non-resident may serve as a personal representative if he is:

(1) a grandparent of the decedent or a descendant of a grandparent of the decedent;
(2) an adopted child or adoptive parent of the decedent;
(3) the decedent’s spouse or a grandparent, parent, child, or grandchild of the decedent’s spouse; or
(4) a spouse of any of the persons listed above.

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A federal or Florida bank, savings and loan, or trust company may serve as a personal representative if

it is authorized to exercise fiduciary powers in Florida.

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If a personal representative is no longer qualified to serve, the representative must file

notice of his inability to serve.

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The personal representative may elect to receive compensation under the terms provided in the will. However, in Florida…

the representative may renounce the will provision and seek reasonable compensation for his services unless he had a contract with the decedent for the amount of compensation.

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Personal Representative Powers, Duties, and Liability

Possessory Rights?

the right to take possession of the property in the decedent’s estate.

If the homestead is not occupied by the person(s) entitled to take the homestead by testate or intestate succession, the personal representative may take possession of, and expend sums for, the preservation of the homestead.

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General Powers Personal Representative

The Powers are exercisable without court order
Power to continue decedents unincorporated business limited to four months
Power to sell, lease, or otherwise dispose of realty without a court order if the decedent’s will confers a specific power to sell or mortgage realty, or a general power to sell any asset of the estate
—Needs court order if will doesnt confer the authority

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Personal Representative Powers, Duties, and Liability

Duties to Estate Assets

The personal representative is under a duty to manage, settle, and distribute the estate per the terms of the will and the probate code, as expeditiously and efficiently as is consistent with the best interests of the estate

Personal Representative Powers, Duties, and Liability

Reimbursement for cost of management

The personal representative may obtain a lien on the homestead for any sums he or she expends in the preservation of the property.

Personal Representative Powers, Duties, and Liability

Hiring Professionals

Has the power to hire professionals to assist in the administration of the estate.

If he acted prudently in hiring a professional, the personal representative is not liable for loss to the estate caused by erroneous advice given by the professional.

General Duties of the Personal Representative

Duty to secure assets and preserve estate (including homestead)
Duty to Keep Assets Separate - no commingling
Duty to File Inventory
Overall Standard of Care
Avoid Conflict of Interest

The personal representative must file an inventory of estate assets, including

the fair market value of each item as of the date of the decedent’s death.

Personal Representative Liability

Generally not personally liability except for attorneys fees.
Personally liable for torts he commits in the course of administration of the decedent’s estate.
Liable for improper exercise of power to interested persons
Not liable for losses resulting from reliance on professional advice

Personal Representative Breach of Fiduciary Duty

Exculpatory Clauses

Are void if:

relieve personal representative of liability for breach committed in bad faith or with reckless indifference OR
resulted from abuse of a confidential relationship with the testator

When may a will may be challenged?

before or after letters of administration have been issued to the personal representative.

If a person petitions the court for appointment as personal representative,

that person may serve copies of the petition and the will on interested persons.

After the personal representative has been issued letters of administration, the personal representative must

promptly give notice of administration.

If an interested person has any objections to the probate of the will, the naming of the personal representative, venue, or jurisdiction, he must present such objections at...

at the hearing for appointment of the personal representative,

The personal representative must promptly notify creditors of the decedent. Notice of probate must be published

once a week for two weeks in a newspaper in the county in which the estate is being probated.

A creditor who was served with a copy of the notice of administration must file its claims with the court within the later of:

(a) three months after the date of first publication of the notice of administration; or (b) 30 days after the date of service of the notice.

Claims not filed within the foregoing periods are

forever barred

If no notice of administration is published, claims must be filed

within two years of the decedent’s death

To object to a claim, the personal representative must file...

a written objection within the later of: (1) four months of the first publication of notice of administration; or (2) 30 days from the filing of a timely claim.

When the personal representative has completed administration except for distribution, the personal representative is required to...

file a statement that he has fully administered the estate by making payment, settlement, or other disposition of all claims and debts that were presented, before the court issues a final discharge.

Properly filed creditor claims are paid before the distribution of gifts, and are satisfied in the following order:

(a) Class One: Costs, expenses of administration, compensation of personal representatives and their attorney’s fees. (b) Class Two: Reasonable funeral, interment, and grave marker expenses not to exceed $6,000. (c) Class Three: Debts and taxes with preference under federal law. (d) Class Four: Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent. (e) Class Five: Family allowance ($18,000). (f) Class Six: Arrearage from court-ordered child support. (g) Class Seven: Debts acquired after death by continuation of the decedent’s business. (h) Class Eight: All other claims, including those founded on judgments rendered against the decedent during his lifetime and any excess over the sums allowed for funeral expenses and expenses of last illness under Class 2 and Class 4.

Gifts in a will must abate when:

(a) no provision is made by the decedent regarding payment of claims; or (b) the assets of the estate are not sufficient to pay all of the deceased’s debts and also satisfy all the specific and general devises, bequests, and legacies in the will.

Reopening of Administration | If an estate has been closed and the personal representative has been discharged, administration will

not be reopened on discovery of a will or a later will. However, administration may be reopened on discovery of additional estate property.

Ancillary Jurisdiction

If real estate located in Florida is owned by a non-resident, a Florida probate court will exercise ancillary jurisdiction over the sale of the property or its transfer to the proper beneficiary

Real and personal property are generally distributed according to the law of

the jurisdiction in which the decedent was domiciled. However, the decedent may in his will provide for the application of Florida law rather than the law of domicile

Summary administration is available if:

(1) the value of the entire estate subject to administration in Florida, less the value of property exempt from the claims of creditors, does not exceed $75,000; or (2) the decedent has been dead for more than two years.

Personal property may be distributed without formal administration if the decedent leaves only:

(1) exempt personal property; and (2) non-exempt personal property valued at no more than the sum of preferred funeral and burial expenses and reasonable expenses of the last 60 days of the decedent’s last illness.

Removal of Personal Representative

- incapacitated - fails to comply with court order - fails to account for sale of property or produce estate assets when required - wastes estate - fails to give bonds or security - convicted of a felony - becomes insolvent - adverse interests (not spouse) - will that made him personal representative has been revoked - becomes a resident in another state - not entitled