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in a formal probate, does the Personal Representative need an attorney?

| Nov 18, 2020 | Personal Representative, Probate |

In our probate practice, we are often asked this question of whether the Personal Representative needs an attorney in a formal probate in Florida. [A formal probate is a full-blown probate that typically applies when the estate–not including the homestead–exceeds $75,000]. The answer is generally “yes”, the Personal Representative must be represented by an attorney. However, there are two notable exceptions.

First, if the person serving as Personal Representative is the sole interested party (e.g. if he or she is the sole beneficiary), then that person can serve as Personal Representative without being represented by an attorney.

The second situation where a person serving as Personal Representative does not need an attorney is when that person is an attorney. In other words, the person who is an attorney can represent themselves as Personal Representative.

Florida Probate Rule 5.030(a) addresses this question and sets forth the rule:

… every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A … personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative.

So, when the Personal Representative is also the sole interested party, he or she can proceed in filing a probate without an attorney. He or she can proceed pro se. However, given the complexities of probate—including all of the things that can go wrong if not handled properly—why would someone do this? There are strict deadlines and rules in probate that can significantly impact the outcome.

The most common reason why a person serving as Personal Representative might try to handle things without an attorney is to save on expense. In our experience, if something is not done correctly in the probate, the consequences can far outweigh the expense. We have taken on probates where the person serving as Personal Representative tried to handle things without an attorney. Somewhere along the way, they realized that they were in over their head and had to hire an attorney. In fact, in some cases, the Personal Representative had messed things up so badly, the probate court ordered them to get an attorney. Our worst nightmare in taking over a probate is that some crucial deadline has been missed and now the estate will pay for it. In probate, many deadlines cannot be extended. If you miss it, you’re out of luck!

Finally, if you or someone you know needs to probate an estate, an experienced probate attorney should be retained. Not all attorneys know the “ins and outs” of probate so don’t hire a “dabbler”. That’s an attorney who dabbles in “a little of this and a little of that!” An attorney may be great at handling divorces, or real estate, or injury law but that does not mean they know what they’re doing when it comes to probate.

 

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