Your Will: Who can legally serve as your personal representative?

In a follow up post, the NewsPress posted the following about who can validly serve as your personal representative:

Last week, I discussed how, and to whom, your assets will be distributed to your family after you die as dictated by Florida Statute, in the event you have not signed a last will prior to your death. I indicated that having a valid will is greatly preferable to having no last will, although trust planning is generally even more preferable. Signing a last will generally ensures that your assets will be distributed to those beneficiaries you chose during your lifetime and that, under most circumstances, you can designate who will do the distributing.

 

 

Other advantages of dying with a last will rather than dying intestate include the possibility of requesting the court to waive the expense and hassle of having to buy a fidelity bond from an insurance company for the personal representative and your ability to make certain tax elections while living. This week, I will begin to review the general process of filing for probate with a last will. I will also mention the requirements for serving as personal representative. Our readers should realize that in some instances you cannot decide to whom all of your assets will be distributed, and you cannot decide who will do the distributing, even with a last will.

 

Some individuals are prohibited from serving as your personal representative, even if designated in the will or given preference under the Florida intestate statute. We have had occasions where a deceased person named his oldest son as personal representative, but when it was disclosed to the court by his disinherited daughter that the son had pleaded no contest to a felony DUI more than 12 years ago, with adjudication entered, the judge of the probate court was prohibited from appointing him and chose the daughter because her minor children were the majority beneficiaries.

 

It is not true the will signor can choose any person they like to serve. Some attorneys, and document preparation services, have the prospective client fill out an intake form from which the will is prepared and do not ask sufficient questions about each beneficiary, which unlearned clients often find intrusive.

 

If the will signor nominated a friend to be personal representative, the attorney should require his or her address and phone number. If the nominee is not related by blood, a person who does not reside in the state of Florida cannot serve as personal representative, even if he or she has no felony record. If you have designated a person who has subsequently moved out of state who is not a blood relative, you should consider signing a new will or codicil naming a Florida resident or blood relative.

 

If you have designated a person who now, not when the will was signed years ago, has been convicted of a felony anywhere, or is not mentally or physically able to perform the duties, or is under age 18 years of age, the person will not be appointed by the judge. Instead, the judge must appoint the alternate nominee in the will and if none, then the person who is listed as first in order of preference under the intestate law that governs persons who have died without a last will.

 

Even if the person who is a non-resident of this state, but promises the will-maker that he or she will move to Florida in order to administer the estate after his friend dies, that promise will not comply with the law. The friend must be a resident of this state at the death of the will-maker. The individual appointed must also be “sui juris,” which means a mentally competent adult, over age 18, who is presumed to be able to be bound by a contract. It is opposed to a person under age 18, legally called an infant and a person who is non compos mentis, or mentally incapacitated. In order to sue a person you must allege that the person is sui juris. The term comes from the latin term meaning “of one’s own right’ which means of full age and capacity. Although it is not impossible to sue a non-resident, it is more difficult and expensive for the estate to do so if an out-of-state person abused the position.

 

It is a good idea to ask a person who you have named, or are considering naming, to serve as personal representative, if he or she has ever been convicted of a felony and, if not a blood relative, if he or she intends to maintain residency in Florida. Also, if the friend or relative owes the deceased money, he or she may still be appointed, but the appointment will not extinguish the debt. If a person simply fails to disclose that he or she would not be qualified to serve and another person files to remove that person, the person who signed the oath of personal representative under oath and penalty of perjury will be liable for the attorney’s fees and costs, in addition to other damages in a removal action. If the person does meet these qualifications and desires to serve and is either next in line in the intestacy statute or clearly named in the will, the court must appoint that person even though the siblings disagree.

 

Any document purporting to be a last will or document attempting to make dispositions of a person’s property after his or her death must be filed with the clerk of court within 10 days after receiving notice that the will-maker, called the “testator,” is dead. If the document is a trust, the original trust does not need to be filed, but a notice of trust must be filed by the successor trustee. Even if they believe the will is invalid or fraudulent, the custodian of the will must still deposit the will with the court for the proper county where the probate judge will decide if it is valid and should be admitted to probate.

 

Even if there are no assets in the probate estate, and even if no one intends to file a petition for administration, the custodian must still file the will with the court. If assets were to show up in later years, as often happens, at least the will in the hands of the probate court will be able to be probated and transfer the asset to the proper person. The deceased person may win a suit for wrongful death which will require a personal representative to be appointed, perhaps many years after his or her death. Additionally, the will is needed to distribute the personal injury award to the proper beneficiaries.

 

If the custodian refuses to file the original will with the court after the death of the testator, any interested party may file suit to obtain the filing of the will. Unless the custodian can show just cause for the refusal, he or she will be liable to the petitioner for all damages, costs and attorney’s fees. Willfully refusing to produce the will can be very costly.

 

When the will is filed the person filing the will must provide the clerk of court with the testator’s date of death and Social Security number, both usually accomplished by providing an original death certificate to the probate clerk. Additional death certificates must be provided to each county recorder if deeds will be filed to change ownership of real property and to any financial institution or insurance company before they will pay a beneficiary.

 

Most attorneys recommend ordering from the funeral director at least 10 to 12 death certificates, which cost $10 each. All death certificates had formerly contained a section for the doctor to sign stating the cause of death. Since the legislature was convinced that those dying from AIDS should not have to disclose that cause because of prejudice, now when ordering the death certificates, you must ask for some with the cause of death, for example to be given to an insurance company who may challenge the issuing of the policy for failure to disclose an illness, and others without the cause of death that can be supplied to financial institutions and to be recorded where deeds are recorded to pass property, which makes them quite public.

 

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If you have no Will, You have no control over assets–State determines beneficiaries

This article from the Fort Myers, Florida News-Press gives a great illustration of why it is so important to have a Will or other Estate Planning documents in place.  Further, as you can tell by the complexity of the issue, it’s also important to see a legal professional to guide you through the process to achieve your intended results.

Probate is quite different than it is often portrayed in movies. Most individuals do not understand the process unless they served as personal representative for a close relative who passed away in Florida. If they served in a different state, they may find the rules in Florida are different.

In the movies, the family gathers to hear the will read by the family attorney. This hardly ever happens. By the time the relative notifies the attorney about the death, the will has already been read by most of the relatives. Those who are beneficiaries will soon get appropriate notice of the probate process. Understanding this process is important to the person who signed the will, to the beneficiaries of the estate, and to the creditors of the deceased person. Understanding this process will allow the reader to evaluate the recent proposal to broaden the reach of probate which I will discuss next week.

The word “probate” comes from the Latin phrase “to prove.” If an individual dies, who will ensure that his final wishes as to the disposition of his assets are carried out? If a beneficiary was allowed to simply show the will to the bank to “get the money,” what if the will was invalid or the bank misinterpreted who should “get the money,” or if there was a lien on the money? The bank would be responsible. This potential liability would cause the bank not to act. Nothing would get distributed.

Fortunately, we have a legal process to allow the will to be proved as the valid instrument to legally pass title of the decedent’s assets to those individuals chosen by the deceased person prior to death. Although this process usually starts with the proving of the will, the term “probate” covers the entire process of winding up the decedent’s financial affairs after death, overseen by a circuit court judge.

Before we can understand the process and options, if the person had a will, we must understand the process if the individual died without a will. The person who signs the will is called the testator. If the person dies with a valid will, the person is said to have died testate. A person who dies without a valid will is said to have died intestate. To whom the estate will be distributed intestate is governed by Florida Statute 732.101 through 732.111, which may be read at the state site, MyFlorida.com.

If a person dies intestate, or if the will fails to fully determine the beneficiary, such as when the will fails to include a residue clause which says who the remaining beneficiary is after the specific beneficiaries have been paid, then Florida Statute determines who shall inherit all or a portion of the estate. It makes a difference whether there is a surviving spouse.

If there is no surviving spouse, the estate is divided equally among the lineal descendants, per stirpes, which is the Latin phrase meaning “by the roots.” For example, if the deceased had three children, one of which predeceased the person whose estate is being administered intestate and had three children of her own, the estate would be distributed one third to each of the two surviving children and one ninth to each grandchild who are the children of the deceased child. The grandchildren who are the children of the living children would receive nothing.

If there are no lineal descendants, that is no living children or grandchildren of the person whose estate is being administered intestate, then the estate will be distributed equally to the decedent’s mother and father. If only one parent is living, that parent will receive the entire estate. If there are no living parents, and no lineal heirs, then the estate will be divided equally among the brothers and sisters, and the descendants of the brothers and sisters.

If there are none of the above, then to the paternal and maternal kindred as provided in the statute. If there are none, then the estate will be distributed to the kindred of the last deceased spouse of the decedent as if the spouse had died intestate immediately after the decedent.

If there are none of the above living at the death of the decedent, then the estate will escheat, or be paid, to the state of Florida. It will be liquidated and held by the chief financial officer of the state and deposited in the state school fund. If no one entitled to the estate files a claim within 10 years of receipt by the chief financial officer, the state’s right to the funds shall become absolute. If an individual entitled to a portion of the estate is living at the time of the death of the decedent, but dies before the estate is administered, their share vests and that beneficiary’s person’s estate would have to be probated.

If the decedent died with a surviving spouse, even if the surviving spouse died before the estate was fully administered, the surviving spouse would inherit all of the estate only if the decedent had no living lineal descendants. If the decedent had living lineal descendants, the amount that the spouse would receive depends on whether the lineal descendants are also the spouse’s descendants.

If all of the lineal descendants are also the descendants of the spouse, then the spouse is entitled to the first $60,000 plus one-half of the remainder. The lineal descendants would divide the rest, per stirpes. If at least one of the lineal descendants is not the lineal descendant of the spouse, then the estate is divided one half to the spouse and one-half among the lineal descendants, per stirpes.

You may have to read this three times to figure out who would inherit your estate if you died without a valid will. The best way to avoid this situation is to sign a valid will. I say “valid will” because not every will that is submitted to the probate judge is determined to be valid. I will review the requirements for the will to be valid next week. You will have a better chance of leaving a valid will if the will is drafted by a knowledgeable attorney. When you leave a valid will, you determine who will inherit your estate.

Even if your will would leave your estate to the identical beneficiaries as the intestate statute would designate, there are additional disadvantages to dying intestate. Your will should designate who will be entitled to serve as the administrator of your estate, and who would be the alternative if that person was unavailable or did not qualify. The administrator is called the personal representative in Florida, but in some states is called the executor. If you die intestate, you must look to Florida Statute to determine who is entitled to serve as personal representative and to file the petition for administration with the probate court.

F.S. 733.301 states that the surviving spouse is entitled to administer the intestate estate. If there is no surviving spouse, the person entitled to appointment is that person selected by a majority in interest of the heirs. That means you must add the percentages and not just take a majority of the heirs. If the heirs cannot agree, then the person entitled to serve is the nearest heir in degree. If more than one applies, then the court may select the one best qualified. If no heir applies, perhaps because they do not want to pay the court costs and attorney’s fees, and the estate has creditors, one of the creditors may apply to serve. I would think most individuals would not want their creditor to administer their estate.

Other advantages of dying with a will rather than dying intestate, as well as the difference between filing formal administration and summary administration, will be discussed next week.

I will also mention the requirements for serving as personal representative and who is prohibited from serving, even if designed in the will or given preference under the intestate statute.

Source: http://www.news-press.com/apps/pbcs.dll/article?AID=/20080810/BUSINESS/808100343/1014/BUSINESS