Florida Probate Litigation Lawyer Blog

For his or her services, a personal representative of an estate is entitled to compensation from the estate assets, without a court order. Florida Statute §733.617 provides the general rule in Florida for the commission of a personal representative. The Statute provides that the commission will be presumed reasonable for ordinary services provided by the personal representative. The commission is based on the value of the estate, which includes the inventory value of the probate estate assets and any income earned by those assets during administration. The commission is calculated as follows: 3% for the first $1 million, 2.5% above $1 million and not exceeding $5 million, 2% above $5 million and not exceeding $10 million, and 1.5% for all above $10 million.

For example, assume an estate where decedent was domiciled in Palm Beach, Broward or Dade County, is valued at $20 million dollars. The personal representative is entitled to 3 percent of the first $1 million dollars or $30,000. For the amount between $1 million and $5 million dollars, the personal representative is entitled to 2.5 percent or $100,000. For the amount between $5 million and $10 million dollars, the personal representative is entitled to 2 percent or $100,000. And for the amount above $10 million and up to our $20 million dollar estate, the personal representative is entitled to 1.5 percent or $150,000. Thus, for an estate worth $20 million dollars, the personal representative is entitled to $380,000 in commissions.

In addition to this commission, a personal representative is allowed additional reasonable compensation for extraordinary services including sales of real or personal property, conducting litigation for or against the estate, any involvement in court or IRS proceedings, running the decedent’s prior business and issues with protected homestead such as with a home in Fort Lauderdale, Florida.

What if the will sets forth the compensation of a personal representative? If the compensation of a personal representative set forth in a will is different than the compensation set forth in the above referenced statute, the personal representative has a choice of taking either compensation rate. The personal representative will likely want to take the higher of the two compensation schemes. The personal representative also has the option of receiving some or none of the compensation they are entitled to.

What if there is more than one personal representative for an estate? If you have an estate worth at least $100,000 and there are two personal representatives, each personal representative can take the full commission that a sole personal representative would take. However, if there are three or more personal representatives for the estate then all personal representatives must apportion among themselves the compensation that two personal representatives would be entitled to. If the estate is less than $100,000, then one commission must be apportioned among all the personal representatives.

What if the appointed personal representative is also a lawyer and has rendered legal services in connection with the administration of the estate? Under Florida law, an attorney shall receive a fee for their legal services in addition to a full fee as personal representative.

If you or someone you know is interested in bringing an action regarding a personal representative’s compensation, it would be best to consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Personal Representative

Bookmark:

If you or someone you know has been appointed a personal representative of an estate then it is important to realize that Florida law imposes certain duties on a personal representative to act in the best interest of all interested persons. One of those duties includes determining all possible identities and locations of beneficiaries of that estate.
Although a personal representative does not have to prove beneficiaries’ identities beyond all certainty, they must use reasonable diligence to determine the identity and location of those people who may be heirs to an estate.
It is important for a personal representative to keep a detailed record of their methods of investigations, when trying to determine whom is a potential beneficiary or heir of an estate. This detailed record will allow a personal representative to show that they used an effective search method and prove they have fulfilled their duty. While a personal representative has the autonomy to conduct searches in a variety of ways, the following list indicates some preferred and commonly used search tools: government records from agencies such as Social Security Administration, Internal Revenue Service, The Census Bureau, the Department of Defense, the Department of Homeland Security, and various Property Appraisers websites. Other institutional record holders such as courthouses can provide birth certificates, marriage licenses, marriage applications, death certificates, employment records, adoption applications, records of divorce, child support obligations, custody determinations, and various other administrative paperwork. Personal files and miscellaneous records can also be found from other resources that include those documents contained in hospitals and cemeteries, financial records held by banks, such as deeds to houses and automobiles. Furthermore, it may be helpful to confer with insurance companies, credit unions, credit card companies, etc. Finally, a comprehensive search can include internet searches and other records contained by various civic organizations, religious institutions, and various family records such as genealogical records, pictures and family trees.

Once the information has been collected and a personal representative can determine facts such as the city born, the maiden name, or any other information, they can use this to widen their search to others who could potentially be heirs to an estate.

As can be expected, a search for potential beneficiaries can often be exhaustive and time consuming as much information is needed. However, under Florida law, a personal representative has the duty to act expeditiously and to effectuate this purpose, A personal representative usually can act without a court order or any direction. In an attempt to find out who may be a beneficiary or heir, a personal representative may generally hire a private investigator without the court’s permission, provided that the cost to do so is not unusually great. A court will generally treat the costs incurred by hiring an investigator as those necessary in order to conduct a good faith search.

If you or someone you know has been appointed as a personal representative, it is important that you hire an experienced attorney so that they can help you to determine your rights and duties.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Personal Representative

Bookmark:

How can one determine whether a personal representative is qualified to be the personal representative? Generally, in the State of Florida any person who is sui juris and is a resident of Florida at the time of the death of the decedent is qualified to act as personal representative. A person is sui juris if they have the capacity to manage their own affairs and are not under any legal disability. A legal disability is any characteristic which by operation of law precludes an individual from having the legal capacity to perform an act. Some legal disabilities that may disqualify a person from acting as a personal representative include being convicted of a felony, having been adjudicated as being mentally or physically unable to perform the duties or if one is under the age of 18.

For example, when Aunt Alice was thirty-five years old, she had a new will drafted and it was validly executed. The will named her twelve year old nephew, Ned as the personal representative of the estate. If Aunt Alice lived to be over eighty years old that would mean her nephew Ned was nearly sixty years old at the time of her passing. Ned’s jealous brother Benjamin contested Ned’s qualifications as the personal representative, alleging that Ned was not qualified to be the personal representative of Aunt Alice’s estate because when the will was executed, Ned was not sui juris because he was only twelve years old at the time.

Assuming Ned still has legal capacity to conduct his own affairs, has not been convicted of a felony and is mentally and physically able to perform the duties of a personal representative, Ned has satisfied all of the qualifications required of a personal representative.

As long as the personal representative is qualified when the decedent dies, it does not matter whether the personal representative was qualified when the decedent’s will was executed.

If you are interested in contesting the qualifications of a personal representative, you should consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Personal Representative

Bookmark: