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Duties of the Personal Representative


Personal Injury

Our Gainesville Attorneys discuss the role and duties of the personal representative in death claims in Florida. Pursuant to Florida’s Wrongful Death Act, wrongful death actions must be asserted by and through the decedent’s personal representative within two (2) years from the date of death. This requirement applies to all claims associated with the injury of the decedent that resulted in death, whether such recovery is for the benefit of survivors or the decedent’s estate.

However, in order to pass ownership of the decedent’s assets, as well as wind up the decedent’s financial affairs, the probate process is necessary. The personal representative is the person, bank or trust company appointed by the probate judge to assist in the probate process.

Assessing the role, duties, and powers of a personal representative, requires an understanding of the interaction between two key principles: (1) standards of care and (2) procedural processes. Standards of care pertain to the degree of prudence and caution, often referred to as a legal duties, which a personal representative must adhere to when dealing with the decedent’s estate. Procedural processes are the formal requirements, proscribed by law, that must be carried out during the probate process, such as identifying assets, or providing notice.

The manner in which these two key principles interact, is simple—as the personal representative carries out the procedural processes associated with probate, this person or entity has a duty to adhere to standards of care applicable to trustees. Further, pursuant to § 733.602 of Florida’s Probate Code:

A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.

While observing applicable standards of care, there are several procedures, required under Florida law that must be carried out by the personal representative. The probate process can be highly complex, particularly when a wrongful death action is involved, and as such, the personal representative often plays an integral role in the administration of a decedent’s estate. In an effort to clarify the process, consider the following classifications: (1) Assets versus Debts; and (2) Beneficiaries versus Creditors.

As a general rule, valid debts owed to creditors must be paid before assets can be distributed to beneficiaries. In order to do so, however, it is first necessary to identify the decedent’s assets, debts, creditors, and beneficiaries. There are two primary notice requirements involved in the initial stages of probate: (1) Notice to Creditors; and (2) Notice of Administration. Notice to creditors is achieved by publishing notice in a local newspaper, and in cases of known creditors, also serving a copy of the notice upon such known creditor. Notice of Administration must also be provided to all interested parties, informing them of the pending administration of a decedent’s estate, and the procedures to be followed for those wishing to object to the administration.

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In addition to notice requirements, the personal representative must also conduct a diligent search to locate creditors that are “known or reasonably ascertainable.” The personal representative has the duty to pay claims of creditors, but only if they are both valid and proper. If a creditor’s claim is improper or invalid, the personal representative must take measures to object to such claims, and when necessary, assist in defending law suits extending from creditor claims. This general rule, requiring the assessment of the validity and appropriateness of claims, extends to all claims associated with the decedent’s estate.

The personal representative must also assist in the winding up of any other financial affairs. For example, unfiled tax returns must be filed and paid. In addition, the personal representative must account for expenses associated with the administration of the estate. As the decedent’s debts are determined, the personal representative must also assist with the identification and valuation of the decedent’s assets. It is often necessary for the personal representative to employ professionals to assist with the various processes of probate. In most cases, the personal representative will carry out required duties in conjunction with an attorney. However, other professionals, such as accountants, appraisers, consultants, or advisors are often employed as well.