The Last Phases of a Probate Administration: The Petition for Discharge and Final Accounting
March 17, 2021
After the personal representative has discharged their fiduciary duties in the probate administration, including locating the estate’s assets, noticing the creditors, providing an inventory, paying any creditors or debts of the decedent, and selling or distributing the assets to the beneficiaries, it is then time to proceed the last part of the probate process, which is the petition for discharge and final accounting. The personal representative is required to file the petition with the probate court to close or complete the estate.
Florida Probate Rule 5.400, entitled “Distribution and Discharge”, requires that the personal representative file a final accounting and a petition for discharge, together with a plan of distribution. This is filed once the personal representative has completed their administration process and are about to distribute the last remaining assets. The contents of the petition must include:
The petition for discharge shall 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.
The Rule further requires that a copy of the petition for discharge and final accounting must be filed and served on interested parties within 12 months, and that the probate court may extend the 12 months if interested parties explain the status of the estate and the reason for the extension. This comes up sometimes when there are estate assets remaining to be sold, such as real property, securities, stocks, business interests, or unusual assets with issues of marketability. Issues involving tax returns also tend to give rise to requests for extension. Estates involved in litigation often do take longer than the 12 months as well.
Once the petition for discharge is filed, the personal representative then promptly distributes the estate assets in accordance with the plan of distribution which they have set out with the petition for discharge, unless there is an objection by a party.
What about the final accounting? Many times the interested persons and beneficiaries will “waive” the requirement for preparing a final accounting as it is an expense of the estate for its preparation. Often times it is helpful to provide an informal schedule reflecting the estate’s expenses, or even bank statements for the estate’s accounts. In this instance, a form “waiver” document is signed by the interested persons and beneficiaries and then filed with the Court. If not all waivers are signed, a formal final accounting reflecting all of the estate’s administration expenses then becomes needed.
If there are no objections to the petition for discharge or the accounting, and the estate’s assets are distributed (or once those objections have been resolved), then the probate court will enter an order which discharges the personal representative. This order is what “officially” concludes the probate estate administration and when the personal representative’s job is completed. Of course, the personal representative is required to have counsel throughout the administration process, who can answer any questions about the process too.