Florida Probate Statute 733.608: General Power of The Personal Representative
A personal representative is the individual who is appointed by the Florida probate court to manage the affairs of someone who has passed away. A personal representative is sometimes referred to as an executor or estate administrator. A personal representative is typically given broad powers with respect to managing the decedent’s final affairs. If you plan to petition the court to be appointed a personal representative of a loved one’s estate, or if you have already been appointed, it is important that you understand the duties, responsibilities, and limitations of the job, including the requirements of Florida Statutes, section 733.608- General power of the personal representative. The skilled Fort Lauderdale estate administration attorneys at the Law Offices of Stephen Bilkis & Associates have the experience and resources to answer your questions related to the job of personal representative.Appointment of Personal Representative
In order to become a personal representative, you must file a petition with the probate court. Even if you have been name in a decedent’s will as personal representative or executor, your appointment is not official until the court has approved your petition. If the court approves the petition, the judge will sign an order that appoints the petitioner as personal representative, and the judge will issue the petitioner a document called “letters of administration.” The letters of administration are vital as they are necessary for the personal representative to prove that he (or she) has been formally appointed as the personal representative by the court, and that he has the authority to act on behalf of the estate. For example, as an experienced Fort Lauderdale estate administration lawyer will explain, in order to open a checking account in the name of the estate, the financial institution will require the personal representative to produce the letters of administration.
Regardless of whether or not the petitioner was named in the decedent’s will to serve as personal representative, under the Florida Probate Act, a personal representative must be qualified. The requirements are that the person must be at least 18 years old, must not be a convicted felon, and must have the mental and physical ability to do the job. If you have questions about the qualifications to serve as a personal representative, contact a skilled Fort Lauderdale estate administration lawyer.General Power of the Personal Representative
One of the first responsibilities of a personal representative once he (or she) has received letters of administration is to take control of the probate assets. Section 733.609 of the Florida Probate Code- General power of the personal representative, outlines the personal representative’s powers and responsibilities with respect to a decedent’s probate assets.
The personal representative is to take control of all real and personal property. This includes all real estate except homestead property, or real estate that the decedent jointly owns with others as a joint tenant with survivorship rights. It also includes all personal property such as clothing, jewelry, furniture, accessories, appliances, collectibles, vehicles, and financial property. The personal representative is to use the decedent’s probate assets for 3 specific reasons:
- To pay devises, family allowance, elective share, estate and inheritance taxes, claims, charges, and expenses of the administration and obligations of the decedent’s estate.
- To enforce contribution and equalize advancement.
- To distribute to beneficiaries and heirs.
According to Section 733.609 of the Florida Probate Code- General power of the personal representative, while the homestead property is not part of the decedent’s probate estate, the personal representative has the option of taking control of homestead property in order to safeguard and preserve it only if it is not occupied by someone who has in interest in it. The personal representative is not required to take steps to make such homestead property productive, but can collect rents and hold for the benefit of the decedent’s heirs or beneficiaries. If the personal representative spends money to care for the homestead property he is entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. If you have questions about the management of homestead property by a personal representative, discuss your concerns with an experienced estate administration attorney in Fort Lauderdale.Limitations on Personal Representative’s Power
While the personal representative is given broad powers with respect to the decedent’s estate, the power has limits. First, if there is a will, the personal representative is required to follow the instructions in the will. Second, the personal representative is required to follow orders of the court. Third, as a fiduciary with respect to the decedent’s beneficiaries or heirs, the personal representative’s actions must be in the best interests of the estate. If the personal representative actions exceed his authority, he may face personal liability.Related Statutory Provisions
- Possession of estate: § 733.607, Fla. Stat.
- Improper exercise of power; breach of fiduciary duty: § 733.609, Fla. Stat.
- Sale, encumbrance, or transaction involving conflict of interest: § 733.610, Fla. Stat.
- Persons dealing with the personal representative; protection: § 733.611, Fla. Stat.
- Transactions authorized for the personal representative; exceptions: § 733.612, Fla. Stat.
- All real and personal property of the decedent, except the protected homestead, within this state and the rents, income, issues, and profits from it shall be assets in the hands of the personal representative:
- For the payment of devises, family allowance, elective share, estate and inheritance taxes, claims, charges, and expenses of the administration and obligations of the decedent’s estate.
- To enforce contribution and equalize advancement.
- For distribution.
- If property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status. If the personal representative takes possession of that property, any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive.
- If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures and obligations incurred, including, but not limited to, fees and costs, shall constitute a debt owed to the personal representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section. The debt shall include any amounts paid for these purposes after the decedent’s death and prior to the personal representative’s appointment to the extent later ratified by the personal representative in the court proceeding provided for in this section.
- On the petition of the personal representative or any interested person, the court having jurisdiction of the administration of the decedent’s estate shall adjudicate the amount of the debt after formal notice to the persons appearing to have an interest in the property.
- The persons having an interest in the protected homestead shall have no personal liability for the repayment of the above noted debt. The personal representative may enforce payment of the debt through any of the following methods:
- By foreclosure of the lien as provided in this section;
- By offset of the debt against any other property in the personal representative’s possession that otherwise would be distributable to any person having an interest in the protected homestead, but only to the extent of the fraction of the total debt owed to the personal representative the numerator of which is the value of that person’s interest in the protected homestead and the denominator of which is the total value of the protected homestead; or
- By offset of the debt against the revenues from the protected homestead received by the personal representative.
- The personal representative’s lien shall attach to the property and take priority as of the date and time a notice of that lien is recorded in the official records of the county where that property is located, and the lien may secure expenditures and obligations incurred, including, but not limited to, fees and costs made before or after recording the notice. The notice of lien may be recorded before adjudicating the amount of the debt. The notice of lien shall also be filed in the probate proceeding, but failure to do so does not affect the validity of the lien. A copy of the notice of lien shall be served in the manner provided for service of formal notice upon each person appearing to have an interest in the property. The notice of lien must state:
- The name and address of the personal representative and the personal representative’s attorney;
- The legal description of the property;
- The name of the decedent and also, to the extent known to the personal representative, the name and address of each person appearing to have an interest in the property; and
- That the personal representative has expended or is obligated to expend funds to preserve, maintain, insure, and protect the property and that the lien stands as security for recovery of those expenditures and obligations incurred, including, but not limited to, fees and costs. Substantial compliance with the foregoing provisions renders the notice in comportment with this section.
- The lien shall terminate upon the earliest of:
- Recording a satisfaction or release signed by the personal representative in the official records of the county where the property is located;
- The discharge of the personal representative when the estate administration is complete;
- One year from the recording of the lien in the official records unless a proceeding to determine the debt or enforce the lien has been filed; or
- The entry of an order releasing the lien.
- Within 14 days after receipt of the written request of any interested person, the personal representative shall deliver to the requesting person at a place designated in the written request an estoppel letter setting forth the unpaid balance of the debt secured by the lien referred to in this section. After complete satisfaction of the debt secured by the lien, the personal representative shall record within 30 days after complete payment, a satisfaction of the lien in the official records of the county where the property is located. If a judicial proceeding is necessary to compel compliance with the provisions of this subsection, the prevailing party shall be entitled to an award of attorney’s fees and costs.
- The lien created by this section may be foreclosed in the manner of foreclosing a mortgage under the provisions of chapter 702.
- In any action for enforcement of the debt described in this section, the court shall award taxable costs as in chancery actions, including reasonable attorney’s fees.
- A personal representative entitled to recover a debt for expenditures and obligations incurred, including, but not limited to, fees and costs, under this section may be relieved of the duty to enforce collection by an order of the court finding:
- That the estimated court costs and attorney’s fees in collecting the debt will approximate or exceed the amount of the recovery; or
- That it is impracticable to enforce collection in view of the improbability of collection.
- A personal representative shall not be liable for failure to attempt to enforce collection of the debt if the personal representative reasonably believes it would have been economically impracticable.
- The personal representative shall not be liable for failure to take possession of the protected homestead or to expend funds on its behalf. In the event that the property is determined by the court not to be protected homestead, subsections (2)-(10) shall not apply and any liens previously filed shall be deemed released upon recording of the order in the official records of the county where the property is located.
- Upon the petition of an interested party to accommodate a sale or the encumbrance of the protected homestead, the court may transfer the lien provided for in this section from the property to the proceeds of the sale or encumbrance by requiring the deposit of the proceeds into a restricted account subject to the lien. The court shall have continuing jurisdiction over the funds deposited. The transferred lien shall attach only to the amount asserted by the personal representative, and any proceeds in excess of that amount shall not be subject to the lien or otherwise restricted under this section. Alternatively, the personal representative and the apparent owners of the protected homestead may agree to retain in escrow the amount demanded as reimbursement by the personal representative, to be held there under the continuing jurisdiction of the court pending a final determination of the amount properly reimbursable to the personal representative under this section.
- This act shall apply to estates of decedents dying after the date on which this act becomes a law. Contact the Law Offices of Stephen Bilkis & Associates
Whether you are a beneficiary or heir who believes a personal representative exceeded his or her authority, or you are a personal representative and have been accused of breaching your fiduciary duty, you should immediately discuss the matter with an experienced estate administration lawyer serving Fort Lauderdale. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing personal representatives, beneficiaries, heirs, and other parties in matters related to the administration of estates. If you have questions related to the duties and authority of a personal representative, including the application of Florida Probate Code, section 733.608- General power of the personal representative, we can help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.