13 Mar Duties and Powers of Personal Representative under Florida Probate Statute
Duties and Powers of Personal Representative under Florida Probate Statute
DUTIES AND POWERS OF PERSONAL
733.601 Time of accrual of duties and powers.
733.602 General duties.
733.603 Personal representative to proceed without court order.
733.604 Inventories and accountings; public records exemptions.
733.6065 Opening safe-deposit box.
733.607 Possession of estate.
733.608 General power of the personal representative.
733.609 Improper exercise of power; breach of fiduciary duty.
733.610 Sale, encumbrance, or transaction involving conflict of interest.
733.611 Persons dealing with the personal representative; protection.
733.612 Transactions authorized for the personal representative; exceptions.
733.6121 Personal representative; powers as to environmental issues relating to property subject to administration; liability.
733.613 Personal representative’s right to sell real property.
733.614 Powers and duties of successor personal representative.
733.615 Joint personal representatives; when joint action required.
733.616 Powers of surviving personal representatives.
733.617 Compensation of personal representative.
733.6171 Compensation of attorney for the personal representative.
733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.
733.619 Individual liability of personal representative.
733.620 Exculpation of personal representative.
733.601 Time of accrual of duties and powers.—The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.
733.602 General duties.—
(1) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.
(2) A personal representative shall not be liable for any act of administration or distribution if the act was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a proceeding challenging intestacy or a proceeding questioning the appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons.
733.603 Personal representative to proceed without court order.—A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified by this code or ordered by the court, shall do so without adjudication, order, or direction of the court. A personal representative may invoke the jurisdiction of the court to resolve questions concerning the estate or its administration.
733.604 Inventories and accountings; public records exemptions.—
(1)(a) Unless an inventory has been previously filed, a personal representative shall file a verified inventory of property of the estate, listing it with reasonable detail and including for each listed item its estimated fair market value at the date of the decedent’s death.
(b)1. Any inventory of an estate, whether initial, amended, or supplementary, filed with the clerk of the court in conjunction with the administration of an estate is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
2. Any inventory of an elective estate, whether initial, amended, or supplementary, filed with the clerk of the court in conjunction with an election made in accordance with part II of chapter 732 is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
3. Any accounting, whether interim, final, amended, or supplementary, filed in an estate proceeding is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
4. Any inventory or accounting made confidential and exempt by subparagraph 1., subparagraph 2., or subparagraph 3. shall be disclosed by the custodian for inspection or copying:
a. To the personal representative;
b. To the personal representative’s attorney;
c. To an interested person as defined in s. 731.201; or
d. By court order upon a showing of good cause.
5. These exemptions apply to any inventory or accounting filed before, on, or after July 1, 2009.
6. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2014, unless reviewed and saved from repeal through reenactment by the Legislature.
(2) If the personal representative learns of any property not included in the original inventory, or learns that the estimated value or description indicated in the original inventory for any item is erroneous or misleading, the personal representative shall file a verified amended or supplementary inventory showing any new items and their estimated value at the date of the decedent’s death, or the revised estimated value or description.
(3) Upon written request to the personal representative, a beneficiary shall be furnished a written explanation of how the inventory value for an asset was determined, or, if an appraisal was obtained, a copy of the appraisal, as follows:
(a) To a residuary beneficiary or heir in an intestate estate, regarding all inventoried assets.
(b) To any other beneficiary, regarding all assets distributed or proposed to be distributed to that beneficiary.
The personal representative must notify each beneficiary of that beneficiary’s rights under this subsection. Neither a request nor the failure to request information under this subsection affects any rights of a beneficiary in subsequent proceedings concerning any accounting of the personal representative or the propriety of any action of the personal representative.
733.6065 Opening safe-deposit box.—
(1) Subject to the provisions of s. 655.936(2), the initial opening of a safe-deposit box that is leased or coleased by the decedent shall be conducted in the presence of any two of the following persons: an employee of the institution where the box is located, the personal representative, or the personal representative’s attorney of record. Each person who is present must verify the contents of the box by signing a copy of the inventory under penalties of perjury. The personal representative shall file the safe-deposit box inventory, together with a copy of the box entry record from a date which is 6 months prior to the date of death to the date of inventory, with the court within 10 days after the box is opened. Unless otherwise ordered by the court, this inventory and the attached box entry record is subject to inspection only by persons entitled to inspect an inventory under s. 733.604(1). The personal representative may remove the contents of the box.
(2) The right to open and examine the contents of a safe-deposit box leased by a decedent, or any documents delivered by a decedent for safekeeping, and to receive items as provided for in s. 655.935 is separate from the rights provided for in subsection (1).
733.607 Possession of estate.—
(1) Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead, but any real property or tangible personal property may be left with, or surrendered to, the person presumptively entitled to it unless possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration, in any action against the beneficiary for possession of it. The personal representative shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it.
(2) If, after providing for statutory entitlements and all devises other than residuary devises, the assets of the decedent’s estate are insufficient to pay the expenses of the administration and obligations of the decedent’s estate, the personal representative is entitled to payment from the trustee of a trust described in s. 733.707(3), in the amount the personal representative certifies in writing to be required to satisfy the insufficiency, subject to the exclusions and preferences under s. 736.05053. The provisions of s. 733.805 shall apply in determining the amount of any payment required by this section.
733.608 General power of the personal representative.—
(1) 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:
(a) 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.
(b) To enforce contribution and equalize advancement.
(c) For distribution.
(2) 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.
(3) 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.
(a) 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.
(b) 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:
1. By foreclosure of the lien as provided in this section;
2. 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
3. By offset of the debt against the revenues from the protected homestead received by the personal representative.
(4) 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:
(a) The name and address of the personal representative and the personal representative’s attorney;
(b) The legal description of the property;
(c) 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
(d) 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.
(5) The lien shall terminate upon the earliest of:
(a) Recording a satisfaction or release signed by the personal representative in the official records of the county where the property is located;
(b) The discharge of the personal representative when the estate administration is complete;
(c) 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
(d) The entry of an order releasing the lien.
(6) 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.
(7) The lien created by this section may be foreclosed in the manner of foreclosing a mortgage under the provisions of chapter 702.
(8) 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.
(9) 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:
(a) That the estimated court costs and attorney’s fees in collecting the debt will approximate or exceed the amount of the recovery; or
(b) That it is impracticable to enforce collection in view of the improbability of collection.
(10) 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.
(11) 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.
(12) 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.
(13) This act shall apply to estates of decedents dying after the date on which this act becomes a law.
733.609 Improper exercise of power; breach of fiduciary duty.—
(1) A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty. In all actions for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers, the court shall award taxable costs as in chancery actions, including attorney’s fees.
(2) When awarding taxable costs, including attorney’s fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.
(3) This section shall apply to all proceedings commenced hereunder after the effective date, without regard to the date of the decedent’s death.
733.610 Sale, encumbrance, or transaction involving conflict of interest.—Any sale or encumbrance to the personal representative or the personal representative’s spouse, agent, or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction that is affected by a conflict of interest on the part of the personal representative, is voidable by any interested person except one who has consented after fair disclosure, unless:
(1) The will or a contract entered into by the decedent expressly authorized the transaction; or
(2) The transaction is approved by the court after notice to interested persons.
733.611 Persons dealing with the personal representative; protection.—Except as provided in s. 733.613(1), a person who in good faith either assists or deals for value with a personal representative is protected as if the personal representative acted properly. The fact that a person knowingly deals with the personal representative does not require the person to inquire into the authority of the personal representative. A person is not bound to see to the proper application of estate assets paid or delivered to the personal representative. This protection extends to instances in which a procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is alive. This protection is in addition to any protection afforded by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
733.612 Transactions authorized for the personal representative; exceptions.—Except as otherwise provided by the will or court order, and subject to the priorities stated in s. 733.805, without court order, a personal representative, acting reasonably for the benefit of the interested persons, may properly:
(1) Retain assets owned by the decedent, pending distribution or liquidation, including those in which the personal representative is personally interested or that are otherwise improper for fiduciary investments.
(2) Perform or compromise, or, when proper, refuse to perform, the decedent’s contracts. In performing the decedent’s enforceable contracts to convey or lease real property, among other possible courses of action, the personal representative may:
(a) Convey the real property for cash payment of all sums remaining due or for the purchaser’s note for the sum remaining due, secured by a mortgage on the property.
(b) Deliver a deed in escrow, with directions that the proceeds, when paid in accordance with the escrow agreement, be paid as provided in the escrow agreement.
(3) Receive assets from fiduciaries or other sources.
(4) Invest funds as provided in ss. 518.10-518.14, considering the amount to be invested, liquidity needs of the estate, and the time until distribution will be made.
(5) Acquire or dispose of an asset, excluding real property in this or another state, for cash or on credit and at public or private sale, and manage, develop, improve, exchange, partition, or change the character of an estate asset.
(6) Make ordinary or extraordinary repairs or alterations in buildings or other structures; demolish improvements; or erect new party walls or buildings.
(7) Enter into a lease, as lessor or lessee, for a term within, or extending beyond, the period of administration, with or without an option to renew.
(8) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.
(9) Abandon property when it is valueless or so encumbered, or in a condition, that it is of no benefit to the estate.
(10) Vote, or refrain from voting, stocks or other securities in person or by general or limited proxy.
(11) Pay calls, assessments, and other sums chargeable or accruing against, or on account of, securities, unless barred by the provisions relating to claims.
(12) Hold property in the name of a nominee or in other form without disclosure of the interest of the estate, but the personal representative is liable for any act of the nominee in connection with the property so held.
(13) Insure the assets of the estate against damage or loss and insure against personal and fiduciary liability to third persons.
(14) Borrow money, with or without security, to be repaid from the estate assets or otherwise, other than real property, and advance money for the protection of the estate.
(15) Extend, renew, or in any manner modify any obligation owing to the estate. If the personal representative holds a mortgage, security interest, or other lien upon property of another person, he or she may accept a conveyance or transfer of encumbered assets from the owner in satisfaction of the indebtedness secured by its lien instead of foreclosure.
(16) Pay taxes, assessments, and other expenses incident to the administration of the estate.
(17) Sell or exercise stock subscription or conversion rights or consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
(18) Allocate items of income or expense to either estate income or principal, as permitted or provided by law.
(19) Employ persons, including, but not limited to, attorneys, accountants, auditors, appraisers, investment advisers, and others, even if they are one and the same as the personal representative or are associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act upon the recommendations of those employed persons without independent investigation; and, instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary. Any fees and compensation paid to a person who is the same as, associated with, or employed by, the personal representative shall be taken into consideration in determining the personal representative’s compensation.
(20) Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative.
(21) Sell, mortgage, or lease any personal property of the estate or any interest in it for cash, credit, or for part cash or part credit, and with or without security for the unpaid balance.
(22) Continue any unincorporated business or venture in which the decedent was engaged at the time of death:
(a) In the same business form for a period of not more than 4 months from the date of appointment, if continuation is a reasonable means of preserving the value of the business, including good will.
(b) In the same business form for any additional period of time that may be approved by court order.
(23) Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate.
(24) Satisfy and settle claims and distribute the estate as provided in this code.
(25) Enter into agreements with the proper officer or department head, commissioner, or agent of any department of the government of the United States, waiving the statute of limitations concerning the assessment and collection of any federal tax or any deficiency in a federal tax.
(26) Make partial distribution to the beneficiaries of any part of the estate not necessary to satisfy claims, expenses of administration, taxes, family allowance, exempt property, and an elective share, in accordance with the decedent’s will or as authorized by operation of law.
(27) Execute any instruments necessary in the exercise of the personal representative’s powers.
733.6121 Personal representative; powers as to environmental issues relating to property subject to administration; liability.—
(1) Except as otherwise provided by the will or by court order, and subject to s. 733.805, the personal representative has, without court authorization, the powers specified in subsection (2).
(2) A personal representative has the power, acting reasonably and for the benefit of the interested persons:
(a) To inspect or investigate, or cause to be inspected or investigated, property subject to administration, including interests in sole proprietorships, partnerships, or corporations and any assets owned by such a business entity for the purpose of determining compliance with an environmental law affecting that property or to respond to an actual or threatened violation of an environmental law affecting that property;
(b) To take, on behalf of the estate, any action necessary to prevent, abate, or otherwise remedy an actual or potential violation of an environmental law affecting property subject to administration, either before or after initiation of an enforcement action by a governmental body;
(c) To settle or compromise at any time any claim against the estate or the personal representative that may be asserted by a governmental body or private party which involves the alleged violation of an environmental law affecting property subject to administration over which the personal representative has responsibility;
(d) To disclaim any power granted by any document, statute, or rule of law which, in the sole judgment of the personal representative, could cause the personal representative to incur personal liability, or the estate to incur liability, under any environmental law;
(e) To decline to serve as a personal representative, or having undertaken to serve, to resign at any time, if the personal representative believes that there is or could be a conflict of interest because of potential claims or liabilities that could be asserted on behalf of the estate by reason of the type or condition of the assets held; or
(f) To charge against the assets of the estate the cost of any inspection, investigation, review, abatement, response, cleanup, or remedial action considered reasonable by the personal representative; and, in the event of the closing or termination of the estate or the transfer of the estate property to another personal representative, to hold moneys sufficient to cover the cost of cleaning up any known environmental problem.
(3) A personal representative is not personally liable to any beneficiary or any other party for a decrease in value of assets in an estate by reason of the personal representative’s compliance or efforts to comply with an environmental law, specifically including any reporting requirement under that law.
(4) A personal representative who acquires ownership or control of a vessel or other property without having owned, operated, or materially participated in the management of that vessel or property before assuming ownership or control as personal representative is not considered an owner or operator for purposes of liability under chapter 376, chapter 403, or any other environmental law. A personal representative who willfully, knowingly, or recklessly causes or exacerbates a release or threatened release of a hazardous substance is personally liable for the cost of the response, to the extent that the release or threatened release is attributable to the personal representative’s activities. This subsection does not preclude the filing of claims against the assets that constitute the estate held by the personal representative or the filing of actions against the personal representative as representative of the estate. In such an action, an award or judgment against the personal representative must be satisfied only from the assets of the estate.
(5) Neither the acceptance by the personal representative of the property or a failure by the personal representative to inspect or investigate the property creates any inference of liability under an environmental law with respect to that property.
(6) For the purposes of this section, the term “environmental law” means a federal, state, or local law, rule, regulation, or ordinance that relates to protection of the environment or human health, and the term “hazardous substance” means a substance, material, or waste defined as hazardous or toxic, or any contaminant, pollutant, or constituent thereof, or otherwise regulated by an environmental law.
(7) This section applies to any estate admitted to probate on or after July 1, 1995.
733.613 Personal representative’s right to sell real property.—
(1) When a personal representative of an intestate estate, or whose testator has not conferred a power of sale or whose testator has granted a power of sale but the power is so limited by the will or by operation of law that it cannot be conveniently exercised, shall consider that it is for the best interest of the estate and of those interested in it that real property be sold, the personal representative may sell it at public or private sale. No title shall pass until the court authorizes or confirms the sale. No bona fide purchaser shall be required to examine any proceedings before the order of sale.
(2) When a decedent’s will confers specific power to sell or mortgage real property or a general power to sell any asset of the estate, the personal representative may sell, mortgage, or lease, without authorization or confirmation of court, any real property of the estate or any interest therein for cash or credit, or for part cash and part credit, and with or without security for unpaid balances. The sale, mortgage, or lease need not be justified by a showing of necessity, and the sale pursuant to power of sale shall be valid.
(3) In a sale or mortgage which occurs under a specific power to sell or mortgage real property, or under a court order authorizing or confirming that act, the purchaser or lender takes title free of claims of creditors of the estate and entitlements of estate beneficiaries, except existing mortgages or other liens against real property are not affected.
733.614 Powers and duties of successor personal representative.—A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate as expeditiously as possible, but shall not exercise any power made personal to the personal representative named in the will without court approval.
733.615 Joint personal representatives; when joint action required.—
(1) If two or more persons are appointed joint personal representatives, and unless the will provides otherwise, the concurrence of all joint personal representatives appointed pursuant to a will or codicil executed prior to October 1, 1987, or appointed to administer an intestate estate of a decedent who died prior to October 1, 1987, or of a majority of joint personal representatives appointed pursuant to a will or codicil executed on or after October 1, 1987, or appointed to administer an intestate estate of a decedent dying on or after October 1, 1987, is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any joint personal representative receives and receipts for property due the estate, when the concurrence required under this subsection cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a joint personal representative has been delegated to act for the others.
(2) Where action by a majority of the joint personal representatives appointed is authorized, a joint personal representative who has not joined in exercising a power is not liable to the beneficiaries or to others for the consequences of the exercise, and a dissenting joint personal representative is not liable for the consequences of an action in which the dissenting personal representative joins at the direction of the majority of the joint personal representatives, if the dissent is expressed in writing to the other joint personal representatives at or before the time of the action.
(3) A person dealing with a joint personal representative without actual knowledge that joint personal representatives have been appointed, or if advised by a joint personal representative that the joint personal representative has authority to act alone for any of the reasons mentioned in subsection (1), is as fully protected in dealing with that joint personal representative as if that joint personal representative possessed and properly exercised the power.
733.616 Powers of surviving personal representatives.—Unless otherwise provided by the terms of the will or a court order, every power exercisable by joint personal representatives may be exercised by the one or more remaining after the appointment of one or more is terminated. If one or more, but not all, nominated as joint personal representatives are not appointed, those appointed may exercise all powers granted to those nominated.
733.617 Compensation of personal representative.—
(1) A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration.
(2) A commission computed on the compensable value of the estate is presumed to be reasonable compensation for a personal representative in formal administration as follows:
(a) At the rate of 3 percent for the first $1 million.
(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
(c) At the rate of 2 percent for all above $5 million and not exceeding $10 million.
(d) At the rate of 1.5 percent for all above $10 million.
(3) In addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:
(a) The sale of real or personal property.
(b) The conduct of litigation on behalf of or against the estate.
(c) Involvement in proceedings for the adjustment or payment of any taxes.
(d) The carrying on of the decedent’s business.
(e) Dealing with protected homestead.
(f) Any other special services which may be necessary for the personal representative to perform.
(4) If the will provides that a personal representative’s compensation shall be based upon specific criteria, other than a general reference to commissions allowed by law or words of similar import, including, but not limited to, rates, amounts, commissions, or reference to the personal representative’s regularly published schedule of fees in effect at the decedent’s date of death, or words of similar import, then a personal representative shall be entitled to compensation in accordance with that provision. However, except for references in the will to the personal representative’s regularly published schedule of fees in effect at the decedent’s date of death, or words of similar import, if there is no written contract with the decedent regarding compensation, a personal representative may renounce the provisions contained in the will and be entitled to compensation under this section. A personal representative may also renounce the right to all or any part of the compensation.
(5) If the probate estate’s compensable value is $100,000 or more, and there are two representatives, each personal representative is entitled to the full commission allowed to a sole personal representative. If there are more than two personal representatives and the probate estate’s compensable value is $100,000 or more, the compensation to which two would be entitled must be apportioned among the personal representatives. The basis for apportionment shall be one full commission allowed to the personal representative who has possession of and primary responsibility for administration of the assets and one full commission among the remaining personal representatives according to the services rendered by each of them respectively. If the probate estate’s compensable value is less than $100,000 and there is more than one personal representative, then one full commission must be apportioned among the personal representatives according to the services rendered by each of them respectively.
(6) If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.
(7) Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:
(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;
(b) The responsibilities assumed by and the potential liabilities of the personal representative;
(c) The nature and value of the assets that are affected by the decedent’s death;
(d) The benefits or detriments resulting to the estate or interested persons from the personal representative’s services;
(e) The complexity or simplicity of the administration and the novelty of the issues presented;
(f) The personal representative’s participation in tax planning for the estate and the estate’s beneficiaries and in tax return preparation, review, or approval;
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;
(h) Any delay in payment of the compensation after the services were furnished; and
(i) Any other relevant factors.
733.6171 Compensation of attorney for the personal representative.—
(1) Attorneys for personal representatives shall be entitled to reasonable compensation payable from the estate assets without court order.
(2) The attorney, the personal representative, and persons bearing the impact of the compensation may agree to compensation determined in a different manner than provided in this section. Compensation may also be determined in a different manner than provided in this section if the manner is disclosed to the parties bearing the impact of the compensation and if no objection is made as provided for in the Florida Probate Rules.
(3) Compensation for ordinary services of attorneys in formal estate administration is presumed to be reasonable if based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during the administration as provided in the following schedule:
(a) One thousand five hundred dollars for estates having a value of $40,000 or less.
(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.
(c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.
(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.
(e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.
(f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.
(g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.
(h) At the rate of 1 percent for all above $10 million.
(4) In addition to fees for ordinary services, the attorney for the personal representative shall be allowed further reasonable compensation for any extraordinary service. What is an extraordinary service may vary depending on many factors, including the size of the estate. Extraordinary services may include, but are not limited to:
(a) Involvement in a will contest, will construction, a proceeding for determination of beneficiaries, a contested claim, elective share proceeding, apportionment of estate taxes, or any adversarial proceeding or litigation by or against the estate.
(b) Representation of the personal representative in audit or any proceeding for adjustment, determination, or collection of any taxes.
(c) Tax advice on postmortem tax planning, including, but not limited to, disclaimer, renunciation of fiduciary commission, alternate valuation date, allocation of administrative expenses between tax returns, the QTIP or reverse QTIP election, allocation of GST exemption, qualification for Internal Revenue Code ss. 6166 and 303 privileges, deduction of last illness expenses, fiscal year planning, distribution planning, asset basis considerations, handling income or deductions in respect of a decedent, valuation discounts, special use and other valuation, handling employee benefit or retirement proceeds, prompt assessment request, or request for release of personal liability for payment of tax.
(d) Review of estate tax return and preparation or review of other tax returns required to be filed by the personal representative.
(e) Preparation of the estate’s federal estate tax return. If this return is prepared by the attorney, a fee of one-half of 1 percent up to a value of $10 million and one-fourth of 1 percent on the value in excess of $10 million of the gross estate as finally determined for federal estate tax purposes, is presumed to be reasonable compensation for the attorney for this service. These fees shall include services for routine audit of the return, not beyond the examining agent level, if required.
(f) Purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters.
(g) Legal advice regarding carrying on of the decedent’s business or conducting other commercial activity by the personal representative.
(h) Legal advice regarding claims for damage to the environment or related procedures.
(i) Legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead.
(j) Involvement in fiduciary, employee, or attorney compensation disputes.
(k) Proceedings involving ancillary administration of assets not subject to administration in this state.
(5) Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the attorney or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:
(a) The promptness, efficiency, and skill with which the administration was handled by the attorney.
(b) The responsibilities assumed by and the potential liabilities of the attorney.
(c) The nature and value of the assets that are affected by the decedent’s death.
(d) The benefits or detriments resulting to the estate or interested persons from the attorney’s services.
(e) The complexity or simplicity of the administration and the novelty of issues presented.
(f) The attorney’s participation in tax planning for the estate and the estate’s beneficiaries and tax return preparation, review, or approval.
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries.
(h) Any delay in payment of the compensation after the services were furnished.
(i) Any other relevant factors.
(6) If a separate written agreement regarding compensation exists between the attorney and the decedent, the attorney shall furnish a copy to the personal representative prior to commencement of employment, and, if employed, shall promptly file and serve a copy on all interested persons. Neither a separate agreement nor a provision in the will suggesting or directing that the personal representative retain a specific attorney will obligate the personal representative to employ the attorney or obligate the attorney to accept the representation, but if the attorney who is a party to the agreement or who drafted the will is employed, the compensation paid shall not exceed the compensation provided in the agreement or in the will.
733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.—
(1) The court may review the propriety of the employment of any person employed by the personal representative and the reasonableness of any compensation paid to that person or to the personal representative.
(2) Court proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process, and the costs, including attorneys’ fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be substantially unreasonable. The court shall direct from which part of the estate the compensation shall be paid.
(3) The burden of proof of propriety of the employment and the reasonableness of the compensation shall be upon the personal representative and the person employed. Any person who is determined to have received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
(4) The court may determine reasonable compensation for the personal representative or any person employed by the personal representative without receiving expert testimony. Any party may offer expert testimony after notice to interested persons. If expert testimony is offered, a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate. The court shall direct from what part of the estate the fee shall be paid.
733.619 Individual liability of personal representative.—
(1) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract, except a contract for attorney’s fee, properly entered into as fiduciary unless the personal representative fails to reveal that representative capacity and identify the estate in the contract.
(2) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if personally at fault.
(3) Claims based on contracts, except a contract for attorney’s fee, entered into by a personal representative as a fiduciary, on obligations arising from ownership or control of the estate, or on torts committed in the course of estate administration, may be asserted against the estate by proceeding against the personal representative in that capacity, whether or not the personal representative is individually liable.
(4) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding.
733.620 Exculpation of personal representative.—
(1) A term of a will relieving a personal representative of liability to a beneficiary for breach of fiduciary duty is unenforceable to the extent that the term:
(a) Relieves the personal representative of liability for breach of fiduciary duty committed in bad faith or with reckless indifference to the purposes of the will or the interests of interested persons; or
(b) Was inserted into the will as the result of an abuse by the personal representative of a fiduciary or confidential relationship with the testator.
(2) An exculpatory term drafted or caused to be drafted by the personal representative is invalid as an abuse of a fiduciary or confidential relationship unless:
(a) The personal representative proves that the exculpatory term is fair under the circumstances.
(b) The term’s existence and contents were adequately communicated directly to the testator or to the independent attorney of the testator. This paragraph applies only to wills created on or after July 1, 2007.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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