What Are My Rights as a Beneficiary in Florida Probate Administration
Beneficiaries in an estate being administered in Florida have certain rights as set forth in the Florida Probate Code, the Florida Probate Rules, and relevant cases issued under Florida law.
The most important rights for a beneficiary are to be given notice of all relevant details of the estate administration, to be treated fairly, and to have the estate be administered efficiently.
Notice and Due Process Rights in Florida Probate Administration
The right to be given adequate notice and information regarding the estate administration begins at the opening of the probate estate and the appointment of the personal representative.
If there is a will and the person named in the will as the personal representative seeks appointment as personal representative by the probate court, no advance notice of the appointment of the personal representative is required. The will can also be admitted to probate without any advance notice.
If any beneficiary wants to stop the appointment of the named personal representative of the admission of the will to probate, that person has the right to file a caveat, as set forth in Florida Probate Statute Section 731.110. The filing of the caveat requires that advance notice be given before the appointment of the personal representative by the probate court, and before the will is admitted to probate.
Once the personal representative is appointed by the probate court, the personal representative is required to send to all interested persons a Notice of Administration pursuant to Florida Probate Statute Section 733.212. The Notice of Administration sets forth various rights that the receipient has to challenge the validity of the will and the appointment and qualifications of the personal representative. Each recipient has 90 days to make these challenges, or they are considered waived.
Each beneficiary of the probate estate has the right to receive the estate's accounting, pursuant to Florida Probate Statute Section 733.604. The accounting must contain an accurate inventory of the assets of the probate estate. The accounting is required to set forth the value of each asset of the estate. Each beneficiary is permitted to seek from the personal representative how the value of each asset was obtained.
The personal representative is required to provide a final accounting of all transactions taking place during the probate estate administration. The Florida Probate Rules set forth the format of a probate accounting. In addition, a beneficiary may petition the probate court to require the personal representative to file an interim accounting. Whether the probate court orders an interim accounting is within the court's discretion.
Right to Fair and Prompt Administration of the Probate Estate
The Personal Representative is required to administer the probate estate fairly. Bequests should be paid as quickly as possible, with due respect for the rights of creditors and the other beneficiaries. The facts of each probate administration make specific rules difficult, but most situations are fairly obvious.
For example, if the estate is large, and there are not significant creditors, the specific bequests (assuming they do not make up a large portion of the bequests) should be paid earlier in the estate administration. If an estate has $1 million in probate assets, no creditors, and two specific bequests, one of $10,000 and the other of a car, each of those specific bequests should be made as soon as the creditor claim period expires. The residuary beneficiaries will have to wait until the estate is fully administered before receiving their inheritance, although interim distributions of residuary bequests can be compelled in the right situation.
If the estate has creditors, is involved in litigation, has tax issues, the assets are difficult to value, and the estate must be divided among 20 beneficiaries, it might take years before any distributions can be made to anyone. It is not unusual for a probate administration to last for five years or more.
When the residuary clause of the will divides the remaining assets among several people, such as to the three children of the deceased, in equal shares, if the estate consists of nothing but one bank account, the division into three seperate shares is easy. On the other hand, if the estate consists of a business, investment real estate, and a stock market portfolio, dividing the
estate into seperate and equal shares could be difficult. Although the personal representative has a certain amount of discretion in valuing and dividing assets, the personal representative must make every possible effort to be fair and reasonable.
What if My Beneficiary Rights Are Violated?
If the Personal Representative violates the rights of the beneficiaries by administering the estate improperly, the beneficiaries have a number of ways to protect the estate.
The beneficiaries could petition the probate court to instruct the personal representative to administer the estate properly. For example, if the personal representative is taking too long to complete the administration of the estate, the probate court could order the personal representative to make interim distributions, file an interim accounting, and could set a deadline for completing the administration of the estate.
In more egregious situations, the beneficaries could ask that the probate court surcharge the personal representative and/or remove the personal representative. Situations where this could be appropriate are where the personal representative violates court orders or steals from the estate.
Additional Rights of Beneficiaries in Florida Probate
- Right to petition for determination of beneficiaries, Florida Probate Code Section 733.105.
- Right to petition for determination of beneficial interest in estate, Florida Probate Code Section 733.105.
- Right to petition for revocation of probate of previously admitted will, Florida Probate Code Section, 733.109.
- Right to oppose or revoke probate of will admitted to probate in another state, Florida Probate Code Section 733.206
- Right to participate in bond determination of fiduciary, Florida Probate code Section 733.402.
- Right to notice of resignation/disqualification of personal representative, Florida Probate Code Section 733.502.
- Right to petition for removal of personal representative, Florida Probate code Section 733.506.
- Right to have personal representative act in the best interests of the probate estate, Florida Probate Code Section 733.602.
- Right to contest transaction affected by personal representative’s conflict of interest, Fla. Statute § 733.610
- Right to petition for increase or decrease in personal representative’s compensation or compensation of his/her attorney, Fla. Statute §§ 733.617; 733.6171
- Right to object to creditor claim, Fl. Stat. § 733.705
- Right to object to personal representative’s proof of claim, Fl. Stat. 733.705
- Right to enter into contract with interested persons to alter interests, shares, or amounts entitled to under will, Florida Statute § 733.815
- Right to receive petition for apportionment of estate taxes, Fla. Stat. § 733.817
- Right to Formal Notice in adversary proceedings, Florida Probate Rules 5.025; 5.040.
- Right to declare proceedings adversarial and invoke Rules of Civil Procedure, Fla. Probate Rule 5.025
- Right to request notice of further proceedings. Fla. Prob. R. 5.060.
- Right to request accounting not otherwise required by law. Fla. Prob. R. 5.150.
- Right to compel personal representative to file accounting required by law. Fla. Prob. R. 5.150
- Right to formal notice of petition for administration where petitioner is not entitled to preference in appointment by law or terms of will. Fla. Prob. R. 5.201
- Right to inventory of safe deposit box. Fla. Prob. R. 5.342
- Right to accounting filed by resigned or removed personal representative or curator who has been succeeded by personal representative. Fla. Prob. R. 5.345.
- Right to object to accounting. Fla. Prob. R. 5.345
- Right to petition for interim distribution. Fla. Prob. R. 5.380 (See also Fla. Stat. § 733.612(26))
- Right to object to discharge of personal representative. Fla. Prob R. 5.401
- Right to object to final accounting of personal representative. Fla. Prob R. 5.401
- Right to petition for determination of homestead status of real property. Fla. Stat. 5.405.
- Right to petition for determination of exempt property. Fla. Stat. 5.405.
- Right to petition for family allowance. Fla. Stat. 5.407.
- Right to petition for establishment and probate of lost or destroyed will. Fla. Stat. § 733.207; Fla. Prob. R. 5.510
- Right to challenge the validity of a marriage after death procured through fraud, duress or undue influence. Fla. Stat. 732.805.
Please contact the Florida probate lawyers of Clark Skatoff, at (561) 842-4868 to protect your rights as a beneficiary of a Florida probate administration. The call is free. Written by Jeffrey Skatoff .Source: www.clarkskatoff.com