Understanding the Role of an Executor and Their Importance in Estate Planning
American country singer and actress Naomi Judd passed away earlier this year, and when it was recently released that her husband was named executor of her Will, tabloid newspapers were quick to announce that her daughters, Wynonna and Ashley Judd, had been excluded from her Will.
However, not being named executor of their mother’s Will doesn’t prevent them from receiving an inheritance. Naomi Judd may have already taken care of her daughters via other Estate Planning tools such as Trusts, or perhaps with prior gifts before her passing; they may even be named beneficiaries in the Will; Judd’s will has not yet been made public.
Naomi Judd entrusted her husband of 33 years to carry out her wishes and protect her beneficiaries. It’s exceedingly common for people to choose a spouse or their children to be named the executor of their Will.
Naming and understanding the role of an executor is a vital part of Estate Planning and might mean the difference between a harmonious and a litigious family.
What Is an Executor?
An executor is typically called a personal representative in Florida. It refers to an individual appointed by the testator of the Will (the person who makes the Will) or the court, whose primary duty is to administer the testator’s Estate upon their death.
Lawfully, they must be at least 18 years old, and mentally and physically capable of serving, meaning they are not deemed incapacitated by a court, and they can not have any felony convictions.
A personal representative typically works with an Estate Planning Attorney who assists with technical and procedural aspects to secure the assets of the Estate and distribute them according to the deceased person’s wishes.
Can You Have an Out-of-State Personal Representative?
In Florida, if your personal representative does not live in the state, they must be related. A friend who lives in the state will suffice for those who do not have any children or suitable relatives.
Florida defines a relative as:
- A legally adopted child or adoptive parent of the decedent;
- Someone related by lineal consanguinity to the decedent (a blood relative);
- A brother, sister, uncle, aunt, nephew, or niece; or
- A spouse.
What are a Personal Representative’s Main Responsibilities?
A personal representative has to perform a varying number of duties depending on the Estate’s complexity and the amount of detail in instructions left for them. These duties may include:
- Hiring an attorney for representation;
- Deciding whether probate is necessary;
- Using estate funds to pay continuing expenses;
- Finding and/or managing assets until distributed to heirs; and
- Determining and paying taxes and debts.
Frequently Asked Questions About Choosing a Personal Representative in Florida
Handing over fiduciary duty is a considerable responsibility. Ideally, the person you choose as executor of your estate should be of high integrity, organized and detailed. They must have the time to fulfill their responsibilities and indicate they are willing to take on the responsibilities of settling the Estate. It’s also advisable to name an alternative executor who can replace the original personal representative if they are unable to perform their duties.
Does a Personal Representative Receive Financial Compensation?
Under Florida Law, personal representatives may receive a commission. If there’s no fee specified in the Will, it’s within their right to receive payment according to the stipulations below:
- 3% for the first $1 million;
- 2.5% for amounts above $1 million and up to $5 million;
- 2% for amounts above $5 million and up to $10 million; and
- 1.5% for amounts above $10 million.
A personal representative may decide to waive their fees if they’re the only beneficiary of the Estate, or if they are also a beneficiary and fear judgment from other beneficiaries or may face conflicts of interest. A person is also entitled to turn down the payment should they wish to.
What Happens if You Do Not Appoint a Personal Representative?
If you do not appoint an eligible personal representative, a family member or friend or another interested party may come forward and petition the court to become the administrator of the estate.
Should no one come forward, the court may ask a person to serve as an administrator. With no appointed personal representative, there is a higher risk of conflict between beneficiaries after your death.
Can You Appointment More than One Personal Representative?
It’s common for parents to have more than one personal representative to prevent the perception of favoritism among children. This by no means splits their responsibilities or diminishes their fiduciary duties. In other cases, the person whom you trust to manage your estate may be administratively lax and would fare better with another’s help.
What if a Personal Representative Fails to Perform Their Duties?
It’s possible to petition to remove a personal representative if they are unfit for duty or put the estate at risk. However, the Florida Probate Code only recognizes certain reasons to petition the removal of the executor of a will. Conflict and arguments do not warrant removal. Therefore, you may not petition to have someone removed on the grounds of disliking them.
Hire an Attorney to Ensure Smooth Estate Closing After Your Are Gone
If you’re considering whom to select as the executor or personal representative of your estate, it may help to consult a knowledgeable Florida Estate Planning Attorney. They can impartially weigh in on this critical decision, along with other crucial Estate Planning matters, to ensure healthy family dynamics are preserved and your wealth passes onto your descendants according to your wishes.
Talk to a Florida Estate Planning Attorney
Speak with a qualified and trusted Estate Planning Attorney who can help you understand the role and choose an executor to act as your personal representative for your estate. Call the Siegel Law Group today for a complimentary consultation at (561) 264-4875, or contact us through our website for more information.