Last time we looked at fights over “Stuff”. Normally those fights are fairly trivial, the dollar value of the items is minimal.
This time we’re looking at fights over who can be Personal Representative, which is what Florida calls Executors.
Personal representatives are responsible for running the estate; to hire the lawyer, open probate, gather information, file tax returns, if needed, pay bills and oversee the final distribution of the estate to those people who inherit.
First, personal representatives can be nominated, or named, in a will; but even though someone is named as personal representative in a will, they are not actually the personal representative unless and until a judge signs off or appoints them as personal representative.
If a personal representative is named in a will, normally the judge will appoint them; however, if someone is a convicted felon, has been declared to be incapacitated, or is under 18, they can’t be appointed personal representative. Additionally, the person must be EITHER a Florida resident, a Florida attorney OR related by either blood or marriage to the person who died. I discuss this in a bit more detail here:
Choosing a Personal Representative
If, however, someone dies without a will, then things become a bit more tricky; there is a procedure set out in Florida law that determines who is eligible to be personal representative. In a nutshell, the priority is 1) Surviving spouse, if any 2) the person chosen by a majority in interest of the heirs and 3) the nearest surviving relative.
Surviving spouse is pretty clear; the a majority in interest of the heirs, however, requires some explanation. A majority of interest of the heirs means the person who has over one half of the votes of the people who stand to inherit taking into account the proportion of the estate they are inheriting. It is not the majority of people, but a majority of interest.
An example is probably the easiest way to explain this. Say mom dies. Mom had 4 children; Ann, Bob, Charlie and David. Charlie is dead; but Charlie left three children; and David is dead, and left ten children. So, you’ve got
Ann who gets one quarter of the estate (25%)
Bob, who gets one quarter of the estate (25%)
Charlies two children who each get one half of one quarter of the estate (12.5% each)
Davids ten children who each get one tenth of one quarter of the estate. (2.5% each)
If Ann and Charlies two children decide that Ann should be executor, that is one half of the interest of the estate. If Bob and Davids ten children decide that Bob should be executor, then that is one half of the interest in the estate; it’s a dead split. Even though the vote is four to eleven in terms of number of people, it is still a 50/50 split in terms of interests in the estate.
Now, say, one of Davids ten children switches his vote to Anns side; now Ann has her quarter, 25%, plus two votes from Charlies children at 12.5% each, plus one vote from one of Davids children which is 2.5%. Ann now has 52.5% of the vote; which is more than half. Ann will be personal representative with a majority in interest of the heirs; even though in terms of people she only has 5 votes to Bobs 10 votes in terms of actual people.
What’s the big deal about being personal representative? The personal representative calls the shots in terms of what goes on, subject to oversight by the lawyer and approval by the judge. Normally, there is not a whole lot of money in being executor in Florida; the statutory fee is 3% of the gross value of the estate, however the value of the estate does not normally include the value of the house. So, if the value of the estate is, say $20,000 not including the house, the personal representatives fee is going to be $600; if the estate is $100,000 then the personal representative may be eligible for up to $3,000 in fees. As a general rule no one is going to get rich off of being personal representative in Florida; while a few hundred or a few thousand dollars may not be insignificant, it usually isn’t going to be worth an extended fight over it. Nonetheless, if it is a sufficiently large estate, say, $1 Million, the personal representatives fee would be 3 percent of that, or $30,000. Which may in fact be worth fighting over.
How can you avoid personal representative fights? Have a will; name a personal representative, and it is a good idea to name a secondary or alternate, and maybe even a tertiary or second alternate personal representative. And, frankly, go to a lawyer for the will; don’t try to do this yourself, or rely on software or fill in the blank type forms.
If you have questions about choosing a Personal Representative, drafting a will, or probate in The Villages, Florida, please call my office.
