Rights of a Beneficiary Under a Will
Florida probate law is set forth within the Florida Statutes in Chapters 731 to 733. Florida Statute 733, titled “Administration of Estates”, identifies the procedural rules in administering estates and your rights as a beneficiary.
Being a beneficiary of a Will is a difficult time as a loved one has passed away and you are typically in an emotional state. Understanding and preserving your basic rights are important. Therefore, you should seek the advice of a qualified attorney in Florida to advise you.
This memorandum will serve to review those rights as a beneficiary.
1. You have the right to notice of a Florida probate. The Personal Representative is the person appointed by the Court to represent the estate. The Personal Representative typically engages an attorney to represent them in their role, as Personal Representative. The Personal Representative then has the responsibility to notify each beneficiary listed in the Will; or if there is no Will, the intestate beneficiaries of the administration. This is set forth in Florida Statute 733.212.
2. If a Will is not clear as to who the beneficiaries are, the Parties can file a petition in the probate court to determine beneficiaries. This is set forth in Florida Statute 733.105. This will also identify who will receive notice moving forward in the administration.
3. The Personal Representative appointed is to act as a fiduciary in following the terms of the Will and must act under the supervision of the Court. However, a beneficiary can always file a petition to remove a Personal Representative under Florida Statute 733.506. To do so, there needs to be more than a basic dispute of the Parties. There must be a breach of fiduciary duty to remove a Personal Representative.
4. Whenever a formal administration is opened, the beneficiaries will receive “formal notice”. Formal Notice is a probate procedure and is typically sent via certified mail. It is normally not a process server serving you (like in a lawsuit).
5. A beneficiary has the right, under Florida Probate Rule 5.345, to receive an accounting from the Personal Representative. A Personal Representative will not be discharged from their responsibilities until they have provided an accounting to the beneficiaries. There is a probate rule that sets forth the outline of what is included in a formal accounting. However, for many beneficiaries, receiving a reconciliation of the transactions is all that is necessary. A beneficiary can always waive the “formal accounting”. It is just a matter of being certain the beneficiaries understand the transactions of the Personal Representative before releasing the Personal Representative. So, a formal accounting is required unless the beneficiaries waive it.
6. Beneficiaries always ask about their distributions and the timeframe. Generally, the requirement is there is only a final distribution. However, from time to time, a beneficiary could petition the Court for an interim distribution (to receive money prior to the end of an estate). Typically, Courts wait until the creditor period has passed before they would consider an interim distribution.
7. In reference to the Homestead property, real estate technically transfers from the moment of death under Florida law. Normally, the homestead property is not considered a probate asset, and therefore there is a separate petition to determine homestead and an order distributing that homestead. A beneficiary is entitled to have the property declared protected homestead, pursuant to Florida Rule 5.405 and may also seek to declare certain property as exempt property under the probate rules.
8. Generally, dealing with creditors is the responsibility of the Personal Representative. However, a beneficiary could request the Court to allow an objection to a creditor claim.
Most formal probate administrations take nearly one year to finalize. As part of the process, a final income tax return of the decedent needs to be filed and also a fiduciary income tax return for the estate. The Personal Representative engages a CPA to prepare those documents. There could be additional delays for filing those tax returns prior to closing an estate.
Again, being a beneficiary is an emotional experience. Some people to wish to get it over with as quickly as possible, while others tend to delay the requirements because they are attached to the decedent or specific passets in the estate. Engaging a neutral Party, such as a probate attorney, to assist in the process is helpful.