Letters of Administration
A judge will issue Letters of Administration only in Formal Administrations of an estate, regardless of whether or not the deceased had a will. Attorneys often refer to Letters of Administration by the shorthand “letters”. A Court will issue Letters, which are merely a legal order of the Court which provides the evidence of a personal representative’s (in other jurisdictions, an executor’s) power and authority to administer the decedent of a probate’s estate. As such, because there is no personal representative in a Summary Administration, only a petitioner, there would be no Letters of Administration.
Notice and Appointment of Personal Representative
An attorney must serve notice on all parties who are known to be qualified to act as personal representative and who are entitled to preference to act as personal representative prior to the issuance of Letters of Administration. For testate estates, the Court normally gives preference for the determination of the personal representative named in the will or pursuant to a power granted in a will. A judge can revoke Letters of administration in certain instances, such as when a person entitled to act as a personal representative did not receive formal notice or did not waive his or her preference to act as a personal representative.
Form of Letters of Administration
When drafting Letters, an attorney can include the name of the deceased, their address, the date they died, along with a statement indicating that there assets owned by the decedent in the State of Florida.
Next, the appointed personal representative is named and powers are given. Typical powers include the power to administer an estate according to law; to demand and sue and be sued on behalf of the estate; to pay the debts of the estate. Finally, the personal representative may distribute the assets of the estate according to the law. Notice that the estate is not always distributed according to the will, but according to law. One reason for this is that Florida law may provide for the protection of a spouse greater than what is given for the will.
Examples of Possible Powers of a Personal Representative
- Retain assets
- Lease or convey property
- Deposit or invest assets
- Receive assets
- Acquire or dispose of assets
- Improve, repair, or maintain assets
- Abandon property of no value
- Pay expenses of the estate, including the furnishing of a bond
- Borrow money to be paid from the estate assets
- Pay taxes
- Prosecute or defend claims on behalf of or against the estate
- Continue a business of the deceased
- Satisfy and settle claims of the estate
- Make whole or partial distributions of the estate
A personal representative will have to post a bond or surety unless waived by the Will. The personal representative may include the cost of the bond in the expenses of the estate administration.
Removal of the Personal Representative
A personal representative owes a fiduciary duty to the estate. The State of Florida, in Florida Statutes, Section 733.602, provided that a Personal Representative has 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.” Upon application by an interested party, a Court may remove a personal representative in certain instances.
For instance, A court may remove a personal representative if the personal representative fails to:
- comply with court orders
- account for the sale of the property
- produce and exhibit the estate assets when required
- fails to give security when required
- is convicted of a felony
- be qualified
As demonstrated above, there are numerous pitfalls that inexperienced practitioners and non-attorneys can run into when appointing a Personal Representative through Letters of Administration. Our firm has represented many individuals in probate planning and estate administration cases. Call us now for a free review of your estate problem.
Florida Trusts and Estates Attorneys Matthew D. Weidner and Jason M. Kral have helped have utilized decades of combined litigation experience to help many clients resolve difficult issues relating to probate and estate settlement throughout the state of Florida including Tampa, St. Petersburg, and Orlando. If you or someone you know has any questions regarding these matters, please contact us at (727) 954-8752 for a free initial consultation.