My mother just died and my father predeceased him. There are assets in my mothers name alone. How do I get authority to distribute the assets according to my mothers will?

If there is a properly executed will, then the person named in the will has priority to be appointed as long as the named individual is not otherwise disqualified [There are several ways to be otherwise disqualified. For example, felons are otherwise disqualified, and so are minors, those deemed mentally unfit or nonresidents unless related by blood or marriage to the decedent.] from serving as personal representative. The courts have very limited authority to disregard the will and appoint someone else if the appointed person is qualified.

The named person files a petition for administration, a designation of resident agent and an oath, the will to be admitted, the filing fee and the order admitting the will. A petition to waive bond can also be filed, but in Lee County the court will probably require some type of bond, and the judge has sole discretion to determine whether a bond is required. If a bond is required, the amount of bond will be dependent on the assets listed on the petition for administration. A bond of $100,000.00 would probably cost $150.00 to purchase and there are companies that routinely issue probate bonds. Large bonds will require a credit check upon purchase, and bad credit can prevent the person named in the will from obtaining a bond, which means that somebody else has to be appointed. The person named in the will once appointed by the court is identified as the personal representative [in some other states this person is identified as the executor or executrix].

The person named in the will has priority to be appointed. Thus, under the Florida Probate Rules that person does not have to notice anybody when the petition for administration is filed with the court. However, assume that the person nominated in the will as personal representative has died and there are four siblings [You would have to follow the same procedure if there was no will and someone died and there were several individuals of equal degree of consanguinity to the decedent.]. Now assume that one sibling wants to be appointed personal representative. That person has to serve via certified mail a copy of the petition on the other siblings at the time that the person filed the petition for administration with the court. If none of the siblings object, then twenty days after each sibling was served with a copy of the petition for administration, the decedent’s child seeking to be appointed can file the proof of service [the green card for certified mail] with the court and the court will appoint that person by signing the order previously filed with the petition for administration.

If a bond is required by the court the person appointed as personal representative must purchase the bond and file the original bond with the court. Then the court will sign “Letters of Administration.” The Letters are the personal representative’s authority to act on behalf of the decedent. That wasn’t so bad was it? For more information contact Matthew A. Linde, P.A.