If you die without a will in Florida, your estate will be distributed in accordance with the state’s intestacy laws. Thus, to preserve your legacy, you must create a sound estate plan. For many, this will include a last will and testament. However, depending on your assets and heirs, you may also want to create a living trust. One perceived benefit of a living trust is the avoidance of probate. Regardless of your planning choice, estate administration will be required at the time of death.
To ensure your will is carried out in agreement with your last wishes, you’ll need to appoint an executor (in Florida, this person is referred to as a personal representative). If you create a living trust, you must name a trustee to manage your trust and transfer assets to your beneficiaries.
What is a personal representative and what are their responsibilities?
A personal representative is someone authorized to act on behalf of a probate estate. When setting up your estate plan, be sure to name a personal representative that you trust, who is in good health, and who is legally qualified to handle your property after your death. Florida bars individuals who are under 18, convicted of a felony, or physically or mentally incapable from being appointed a personal representative. Non-family members must be Florida residents.
Since appointed personal representatives have a right to decline, it is in your best interest to consult with candidates prior to naming them in your will. Some of the responsibilities of the personal representative include:
- Identify and locate all estate property
- Notify and pay estate creditors
- Pay taxes due and file tax returns for the the estate
- Seek expert help – i.e., accountants, lawyers, appraisers
- Distribute estate assets per the last will or trust
As a testator, that is, the creator of a will, you should only name someone you trust and who you believe will carry out the above duties. Be sure to sit down with any individual you are considering as a personal representative and inform them of your intentions. Explain where important documents can be found and what your last wishes are. You should also ensure your personal representative is aware of any significant debt on your estate as well as the value of collectibles, art, or other high value property. Selecting alternates in the event your first named choice is unavailable is also a good decision.
Preparing your trustee
Probate has a bad reputation for being a long and costly process. The reality is, all estates need administration. Whether you have a will or a living trust, your named fiduciary – your personal representative or trustee will have the responsibility for making sure your assets are accounted for, your debts and taxes are paid, your beneficiaries are properly notified and assets are distributed according to your written instructions. In a living trust, your trustee is held accountable for the administration of your trust in accordance with the terms of the trust.
Like a personal representative, you must appoint a trustee who is reliable and industrious. Next, you should explain your situation, your wishes, your reason for using a trust, and specifics regarding the beneficiaries of the trust. Trust beneficiaries can be people or pets. Distributions may be outright, over a specified period of years or over the lifetime of the beneficiary.
It is also a good idea to connect your trustee with certain professionals such as your estate planning attorney who helped draft your estate plan, your CPA who assists you with your taxes, your financial advisor and perhaps an appraiser who can value your property.
Choosing a personal representative or trustee is not trivial matter — this is not some honorary or glamorous position. The responsibilities are extensive and the consequences of failing to uphold them can affect your heirs for years to come or result in costly litigation. An qualified attorney can help steer you in the right direction.
At The Law Offices of Hoyt & Bryan, our attorneys have been helping Florida residents with wills, trusts, estates, and elder law matters since 1999. If you have questions, we have answers. Please contact us.
