A Petition for Discharge in Florida probate lets the court and the beneficiaries know what assets are in the estate and how the assets will be distributed. The Petition for Discharge also informs the court and beneficiaries the amount of assets being paid to the attorney or the personal representative, and the personal representative’s fees.
If you are the personal representative of a Florida probate, one of your last obligations will be to file the Petition for Discharge. If you are a beneficiary of a Florida estate, one of the last documents you will receive will be the Petition for Discharge. You will likely wonder whether or not you should consent to the Petition.
What Is Required To Be In A Petition For Discharge?
A Petition for Discharge in Florida probate, pursuant to Florida Probate Rule 5.400, is required to contain a statement:
(1) that the personal representative has fully administered the estate;
(2) that all claims which were presented have been paid, settled, or otherwise disposed of;
(3) that the personal representative has paid or made provision for taxes and expenses of administration;
(4) showing the amount of compensation paid or to be paid to the personal representative, attorneys, accountants, appraisers, or other agents employed by the personal representative and the manner of determining that compensation;
(5) showing a plan of distribution which shall include:
(A) a schedule of all prior distributions;
(B) the property remaining in the hands of the personal representative for distribution;
(C) a schedule describing the proposed distribution of the remaining assets; and
(D) the amount of funds retained by the personal representative to pay expenses that are incurred in the distribution of the remaining assets and termination of the estate administration;
(6) that any objections to the accounting, the compensation paid or proposed to be paid, or the proposed distribution of assets must be filed within 30 days from the date of service of the last of the petition for discharge or final accounting; and also that within 90 days after filing of the objection, a notice of hearing thereon must be served or the objection is abandoned; and
(7) that objections, if any, shall be in writing and shall state with particularity the item or items to which the objection is directed and the grounds on which the objection is based.
Rule 5.400 establishes the procedure for giving notice and serving the final accounting, petition for discharge, and plan of distribution to all interested persons in the estate prior to distribution and discharge.
Can A Beneficiary Object to A Petition for Discharge in Florida Probate?
Yes, a beneficiary or interested person can object to a petition for discharge.
Florida Probate Rule 5.400 requires that any objection to the compensation paid or proposed to be paid, or the proposed distribution of assets must be filed within 30 days from the service of the last of the Petition for Discharge or the Final Accounting. A beneficiary then has 90 days from the filing of the objection to serve a notice of hearing on the objection, or the objection is deemed abandoned.
The deadlines to object to a Petition for discharge are strictly construed by the Florida Courts. For example, in Unanue v. Johnson, a personal representative was discharged within the 30 day window for objections to the Petition for Discharge. Two beneficiaries of the estate filed an objection, and then sought reversal of the order discharging the personal representative, because their time to object was cut short in violation of Rule 5.400. The appellate court reversed because the discharge of the personal representative did not allow for the consideration of the timely filed objection.
Should I Sign a Waiver and Consent?
Often, the petition for discharge will be accompanied by a Waiver of Accounting, Receipt, and Consent to Discharge. This document asks the beneficiaries to waive the requirement of an accounting and consent to the discharge of the personal representative.
A waiver and consent is typically sent to save money and time, and to expeditiously close the probate without using further estate assets to prepare a formal accounting. If all interested persons sign the waiver and consent, then discharge of the personal representative is generally a smooth process.
If you have been involved in an estate where you suspect mismanagement or dishonesty on the part of the personal representative, you should consider consulting an attorney before signing a waiver and consent. Some items on a petition for discharge are easily verifiable, such as the reasonableness of personal representative’s fees, while others might need more investigation.