Florida Probate Statute 733.3101: Personal Representative Not Qualified
Florida estate law has very strict requirements as to who may serve as a personal representative. The job of a personal representative involves managing the affairs of a decedent and having significant access to all of the property in the estate including cash. The probate court will review any petition to be appointed personal representative very carefully, making sure that the applicant is qualified and has priority in appointment over other qualified applicants. Despite the care taken in appointing a personal representative, there are occasions in which a seemingly qualified individual should never have been appointed, or the circumstances of an actually qualified individual change. If this is the case, the personal representative may have to be removed. If you would like to learn more about the circumstances that might require the resignation or removal of a personal representative, including the requirements of Florida Statutes, section 733.3101- Personal representative not qualified, contact an experienced Fort Lauderdale estate administration lawyer at the Law Offices of Stephen Bilkis & Associates.Duties of a Personal Representative
A personal representative has the often daunting responsibility of winding up the affairs of a decedent and distributing his or her assets. Even if the estate is relatively small and appears to be uncomplicated, the tasks involved may be time-consuming, and unexpected events and complications are not unusual. In addition, the decisions that the personal representative makes can have significant impact on the value of the estate and what is ultimately passed on to the decedent’s beneficiaries and heirs.
Tasks required for winding up an estate include figuring out the assets that are part of the decedent’s probate estate, appraising those assets, safeguarding them, and inventorying them. The personal representative must then pay estate debts and expenses, including in taxes owed. Once debts and expenses are paid, the personal representative must distribute the assets. If the decedent was testate, meaning he left a will, the personal representative must distribute estate property based on the terms of the will. As Fort Lauderdale estate administration lawyer will explain, if the decedent died without a will, the personal representative must look to Florida’s intestacy rules to determine who inherits the property.Who may act as a Personal Representative
The Florida Probate Code provide the guidelines for who can serve as a Florida personal representative.
- 18 years old or older
- Physically and mentally able to perform the job
- Not a felon
- Florida resident
In addition, you must be eligible. This means that you must have an interest in the decedent’s estate. Examples of individuals who would have an interest would be the person nominated in the decedent’s will to serve as personal representative or successor, the surviving spouse, beneficiaries named in the will, and heirs.
If you would like to serve as personal representative of a loved one’s estate, you must file a petition with the appropriate probate court. Only after your petition is approved and letters of administration issued by the probate court judge will you have the authority to act as the personal representative. To learn more about the process for petitioning the court to be appointed a personal representative, contact an estate administration lawyer in Fort Lauderdale.Personal Representative not Qualified
After a personal representative has been appointed by the probate court to serve as personal representative, there are instances in which information comes to light or circumstances may develop that may result in the personal representative losing his (or her) authority. If a personal representative accepted the position knowing that he did not meet the qualifications at the time of appointment, Florida Statutes, section 733.3101- Personal representative not qualified, requires that the person resign immediately. For example, one of the requirements of being a personal representative is that you must live in Florida. If at the time the personal representative petitioned the court he lied about his residence, he must resign his position immediately. The requirement of resigning applies even if the personal representative did not know he was qualified, but should have known. In other words, lack of actual knowledge is not a defense.
Sometimes circumstances change. For example, there are occasions when at the time of appointment the personal representative was qualified, and after appointment something changed resulting in him no longer being qualified. Under Florida Statutes, section 733.3101- Personal representative not qualified, the personal representative is not required to immediately resign, nor will the probate court immediately revoke his authority. The personal representative is required to inform all interested parties of the details of the changed circumstances. An interested party has the right to petition the court requesting removal of the personal representative. Such petition must be filed within 30 days after the date on which such notice was served.
If the personal representative fails to resign or send notice as required, then he will be held personally liable for costs incurred in any removal proceeding if the personal representative is removed.Related Statutory Provisions
- Preference in appointment of personal representative : § 733.301, Fla. Stat.
- Who may be appointed personal representative : § 733.302, Fla. Stat.
- Persons not qualified: § 733.303, Fla. Stat.
- A personal representative shall resign immediately if the personal representative knows that he or she was not qualified to act at the time of appointment.
- Any time a personal representative, who was qualified to act at the time of appointment, knows that he or she would not be qualified for appointment if application for appointment were then made, the personal representative shall promptly file and serve a notice setting forth the reasons. The personal representative’s notice shall state that any interested person may petition to remove the personal representative. An interested person on whom a copy of the personal representative’s notice is served may file a petition requesting the personal representative’s removal within 30 days after the date on which such notice is served.
- A personal representative who fails to comply with this section shall be personally liable for costs, including attorney fees, incurred in any removal proceeding if the personal representative is removed. This liability extends to a personal representative who does not know, but should have known, of the facts that would have required him or her to resign under subsection (1) or to file and serve notice under subsection (2). This liability shall be cumulative to any other provided by law.
- As used in this section, the term “qualified” means that the personal representative is qualified under ss. 733.302-733.305.
If you have questions the procedure for the appointment of a personal representative as well as the conditions for removal, including the requirements of Florida Statutes, section 733.3101- Personal representative not qualified, it is important that you discuss your concerns with an experienced estate administration attorney serving Fort Lauderdale. The attorneys at the Law Offices of Stephen Bilkis & Associates have over two decades of experience representing clients in matters related to the administration of estate, and understand the requirements of the Florida Probate Code. We can help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.