My father has died very recently in Florida leaving a will and a
sizable estate.  My sister is the custodian of the will and lived with
my father. She has told us of his death and that there will be no
funeral.  She told us the day of his death that she was going on a
trip and would not be available to talk. What do I need to do to
protect my interest in the estate?  We don't know who our father's
attorney was.

Dear jane8849,

I am sorry to hear of your loss.

The short answer to your question is that the best way to protect your
rights would be to hire a Florida lawyer to start a formal estate, and
request the appointment of a personal representative. The personal
representative would then secure a copy of the will and complete the
administration of the estate.

On the website of the Clerk of the Circuit Court of St. Lucie County,
you will find a brief overview of the seven basic types of proceedings
for administering a decedent's estate:
http://www.slcclerkofcourt.com/geninfo/probate_faq.html

Based upon the facts you provide, formal administration is necessary,
as it involves having the estate administered by a "personal
representative" - a person authorized and supervised by the court. As
mentioned above, the personal representative would seek to obtain a
copy of the will to file with the court. The personal representative
would also oversee the estate's assets, and their ultimate
distribution in accord with the will. (In the event that the will
cannot be located, and its content cannot be proved, Florida's laws of
"intestate succession" would govern the distribution of the estate.
That is to say, the estate would be distributed as if there were no
will.)

You should discuss with a Florida attorney whether you should consider
your sister as a possible personal representative. If you cannot find
a family member willing to assume that role, or suited to that role,
it is possible to obtain the appointment of an independent personal
representative, but that person would have to be paid for any services
rendered from the proceeds of the estate. Your attorney can help you
balance your concerns about whether you can trust your sister to
properly manage the estate, with the question of how much it would
cost to hire an independent person to perform the same tasks.

As is implicit in the paragraph above, I do advise hiring an attorney
to open the estate. An attorney will have systems in place for opening
the estate, whereas most laypersons would likely find the process
difficult and confusing. The process of opening a state without an
attorney becomes even more complicated if you do not live in Florida,
and cannot readily attend court hearings.

If you do choose to try to open the estate without a lawyer, I suggest
that you consult some self-help materials on the subject. For example
you may wish to review the book, How to Probate and Settle an Estate
in Florida, Fourth Edition by Gudrun Maria Nickel. Sphinx Publishing,
(July 2001). (Please note that I cannot speak to the quality of that
book, as I have no first-hand experience with it.) Product details are
available on the Spinx Publishing website:
http://www.sphinxlegal.com/sphinx/yourlegalcenter/bookinfo.asp?productid=82


Additional Links:

CCH Incorporated presents a summary of Florida's law of intestate
succession on its website. Ideally your sister will produce the will,
but if the will cannot be found you may wish to consult this material:
http://www.finance.cch.com/pops/c50s10d190_FL.asp


Search Strategy:

Google search: "formal administration proceeding" florida
://www.google.com/search?q="formal+administration+proceeding"+florida

Google search: "open an estate" florida
://www.google.com/search?q="open+an+estate"+florida

Google search: "how to probate" florida
://www.google.com/search?q="how+to+probate"+florida

Google search: "intestate succession" florida
://www.google.com/search?q=%22intestate+succession%22+florida


I do hope that you find this answer helpful, and that you are able to
resolve any difficulties with your sister in a positive and amicable
manner. Please don't hestitate to request clarification if you need
additional explanation.

Good luck,

- expertlaw

You might want to examine these resources. The Florida Statutes set
out the procedures to be followed.


WHAT ARE THE MAIN DUTIES OF A PERSONAL REPRESENTATIVE?
http://law.freeadvice.com/estate_planning/probate/personal_representative_duties.htm

Personal Representative of trust fails to perform
http://law.freeadvice.com/estate_planning/probate/representative_fails_perform_duty.htm


FLORIDA PROBATE LAW

Florida Legislature
Constitution and Statutes
Title XLII ESTATES AND TRUSTS Ch.731-738
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Index&Title_Request=XLII#TitleXLII

Chapter 733
Part VI
Duties and Powers of Personal Representative
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0733/part06.htm&StatuteYear=2002&Title=%2D%3E2002%2D%3EChapter%20733%2D%3EPart%20VI


WILLS, TRUSTS, AND ESTATE ADMINISTRATION FOR THE PARALEGAL
Fifth Edition
http://www.delmarlearning.com/companions/content/0766820513/add/hower-fl.pdf

"PERSONAL REPRESENTATIVES: TYPES, PRE-PROBATE DUTIES, AND APPOINTMENT
TYPES OF PERSONAL REPRESENTATIVES (HOWER 360)
In Florida, the individual who administers the estate is called the
personal representative. The duties and powers of the personal
representative are discussed in Fla. Stat. §§ 733.601 to 733.619. Once
the personal representative is appointed, the court then grants the
authority to act on behalf of the estate through the issuance of
letters of administration. Fla. Stat. § 733.401.
Sometimes a curator is appointed. This occurs when there is a danger
of the decedent’s prop-erty being destroyed, wasted, or removed beyond
the jurisdiction of the court. A curator may act as a personal
representative on special order of the court."


COMMENCING PROBATE AND ESTATE ADMINISTRATION
PROCEEDINGS AND PROBATE COURT PROCEDURE (HOWER 406)
http://www.delmarlearning.com/companions/content/0766820513/add/hower-fl.pdf

"In Florida
1. Petition for administration of the will—any interested person may
file a petition, regardless of whether the decedent died testate,
intestate, or is a nonresident."

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