Who Can Initiate Probate and Who Can Be an Executor/Personal Representative?
If you or a loved one has been affected by someone’s passing, you have probably heard the term “probate.” Probate refers to the process regarding the distribution of a person’s assets when they pass away.
The person who has passed away is typically referred to as the decedent. The decedent’s assets can range from a wide variety of things such as a home, car, jewelry, a life insurance policy, and much more. When a decedent passes away without a will, they die intestate, meaning that their assets will be distributed in accordance with the Florida intestacy laws. However, when the decedent passes away and they do have a will in place, they are said to have died testate, which means it might have to go through probate, but depends on the facts and circumstances.
When the decedent passes away with a will, the probate process will help to ensure that the contents of the will are followed. Usually, the will has a designated executor or personal representative (they usually mean the same thing). The executor/personal representative is the person who is chosen by the decedent who created the will to carry out the will’s contents. The executor/personal representative will then bring the decedent’s will and death certificate to an attorney. This would essentially initiate the probate process.
If the executor has passed away, has made themselves unavailable, has a felony conviction, or no longer holds an interest in being the executor of the decedent’s estate, and the decedent does not change their executor before they pass away, the will might have a successor executor/personal representative that can serve. If the successor executor/personal representative cannot serve, the court could appoint an executor/personal representative for the decedent’s estate. Additionally, according to Florida Statute 733.303, the person who is chosen to be the executor/personal representative also cannot be under 18 years of age and cannot be mentally or physically unable to perform the duties required.
Bottom line? Pick your executor/personal representative wisely, and if something happens to a loved one, speak to an experienced probate attorney to help you determine what the next steps should be in your case.
The Florida Probate & Family Law Firm has a team of experienced attorneys located in Coral Gables, Florida. As attorneys who have extensive knowledge in Probate, we understand it can be a time-consuming and complicated process. If you are currently in need of a probate administration, contact us to set up an appointment to evaluate your options. We serve the entire state of Florida so call us for more information.