19 May If I Am Named as Executor in a Will, Do I Have to Serve?
If I Am Named as Executor in a Will, Do I Have to Serve?
By: Barry E. Haimo, Esq.
May 19, 2015
BARRY HAIMO: If you’re named in a will as executor or personal representative in Florida, you do not have to serve. You are not obligated to serve. That is why, frequently, a will will always appoint successor personal representatives. When a personal representative does decide to take on the role as personal representative, they also are generally entitled to compensation.
In Florida, upon your death, your estate will have to go through probate. Probate is the court-supervised legal process for settling your estate. It includes:
- Proving that a will, if one exists, is valid
- Identifying, inventorying, and appraising the deceased’s assets
- Paying creditors and taxes
- Distributing the remaining assets to beneficiaries according to the will or state law if no will exists
- And all the things in between.
One of the first and most essential aspects of probate is appointing an executor or personal representative. The personal representative is in charge of administering the deceased’s estate and is responsible for numerous duties throughout the probate process, such as:
- Gathering and valuing the deceased’s assets
- Notifying and searching for “known or reasonable ascertained” creditors
- Paying valid claims
- File and pay taxes
- Selling property
- Collecting debts owed to the deceased
- Pay necessary probate expenses
- Allocate probate assets to beneficiaries
A personal representative is generally chosen in one of two ways: i) by court appointment following state statute or ii) by the deceased’s last will and testament. In other words, you have to exercise your right to decide or your state will decide for you.
In Florida, a personal representative must be at least 18 years old, a Florida resident, or a close family relative who resides in Florida or out-of-state, someone who is capable of performing their duties, and someone who has not been convicted of a felony.
Since a personal representative will have a great deal of responsibility, it’s understandable that someone may not want to serve. As a result, if you are named or appointed as a personal representative and do not wish to serve as such, then you can exercise your right to decline.
For this reason, a will may name an alternate personal representative in the event the primary representative cannot serve and the court will go through a process to appoint an agreed-upon representative.
If a will doesn’t exist or doesn’t appoint someone as a successor, the court will usually appoint the successor pursuant to the order established by state statute. This usually starts with the deceased’s surviving spouse as a personal representative. If there is no spouse or the spouse declines, other family members are chosen in a particular order..
Although the chosen or appointed personal representative doesn’t have to serve, the personal representative is usually compensated for their management of the estate. This manner and amount of compensation is generally determined by:
- The will
- A contract between the personal representative and the deceased person
- The calculated amount under Florida law
- The judge
The bottom line here is that you do NOT have to serve if appointed. If the will fails to appoint a successor, then the state will decide. In either case, the personal representative who serves the estate is entitled to reasonable compensation, the manner and amount of which can be determined in a few different ways.
Barry E. Haimo, Esq.
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