In Florida, there are two types of probate administration: formal and summary. Both accomplish essentially the same objective of allowing the distribution of a decedent's assets. However, there are some significant differences between these two types of probate. This article is intended to discuss the summary probate administration.
In Florida, when the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, certain of the deceased's survivors and the deceased's estate may be entitled to recover damages. Those damages, and who are entitled to them, are set forth in detail in Section 768.21, Fla. Stat.
When a person dies and a formal probate estate must be opened in Florida, the probate court will appoint a person to be in charge of the estate administration. In Florida, this person is known as a "Personal Representative." In other states, it is known as an "Executor" or "Administrator." In Florida, no one is authorized to act as Personal Representative until a probate court issues an Order appointing the Personal Representative. Simply being designated in the Will is not enough--an Order appointing the Personal Representative is required.
One of the most common misconceptions I run into as an estate planning lawyer is that many people think that if they have a Last Will and Testament in Florida, probate will not be necessary. The reality is that a Will sets forth the deceased person's wishes--such as designating the beneficiaries and the Personal Representative to oversee the estate. In essence, the Will acts as the "roadmap" for the probate court to follow. But the important thing to understand is that the Will is not self-implementing--it is the power given by the probate court that implements the wishes set forth in the Will.
Quite commonly, after their loved one has died clients come to us as estate attorneys and they tell us that a bank or other financial institution is asking for "Letters of Administration." When that happens, the client will ask us how do they get such Letters.
When preparing a Last Will and Testament in Florida, one of the decisions you must make is who to name as Personal Representative (also sometimes called the Executor). The Personal Representative is the person in charge of the probate estate.
When a person in Florida has a safe-deposit box at a bank or credit union, only they or persons they've authorized in writing, can access the box. So what happens if the person dies and no one else is authorized? A Florida attorney can show you where the law provides a solution.
As with many things in estate law, the answer is that "it depends." In certain cases, the answer is "yes" (but this also implies that in other cases, the answer is "no").
In Florida, the state's wrongful death statute contained in Chapter 768, Florida Statutes, specifies that only the Personal Representative of the deceased person's estate may bring a wrongful death action.
Timing can mean everything in probate--including when to challenge a person being appointed as Personal Representative of an estate.