BUSINESS LAW 101 / Response to Probate question

By Albert L. Kelley

While this column does not provide direct specific legal advice, we do try to provide general answers to questions from readers. This past week we received such an inquiry. The reader stated: “My husband died, he was sole owner of an accountancy corporation. The assets of the corp is now held in the Probate Estate. There were unpaid receivables, totaling thousands, that I am trying to collect as heir, wife, and unlicensed business partner, from signed Engagement Ltr Contracts, I am suing defendants for collection of these unpaid receivables, They claim I do not have standing? That only the Corp can sue? I am in pro per as I cannot find an attorney or one to work on contingency.”

First, let me make a specific disclaimer here: I have not reviewed any details of the reader’s case; I do not know the specific situations of the decedent’s estate, and I have no knowledge of the terms of his business and engagement letters. As such I cannot provide any specific answers to this situation and recommend the reader engage a knowledgeable attorney for specific answers. What I can do is provide some general information based on the questions presented.

I am going to start with the last part first: hiring a probate attorney. The Florida Statutes specifies that probate attorneys are paid a statutory amount based on the size of the inventory of the estate and get paid before nearly all other bills. I will discuss the process in detail in a future column. While it is not a contingent fee, if the decedent’s corporation can collect additional fees it will increase the value of the corporation, thus increasing the value of the estate. While it may be difficult to find an attorney for very small estates as the legal fees are far less than the amount of work the attorney will have to do, those situations usually allow for summary administration to keep the fees down. And there are times when filing probate makes little sense as the cost of the probate may be more than the estate is worth.

The next issue she raises is standing. Generally, when a company is a party to a contract, only the company can file suit to enforce that contract. The company is separate from the shareholders, directors and officers. As such the company itself must be the one to file suit. If the claim is for less than $5,000, the case is in small claims and the company can be represented by an officer. If the amount is for more than $5,000, the company MUST be represented by an attorney.

The next concern is the professional nature of the business. A few weeks ago I wrote a column about professional corporations. These companies can only be owned by people holding the necessary license, and an unlicensed person has no ability to act on behalf of the company. The reader did not specify the nature of her husband’s accountancy business, and that could make a difference. Florida does not require a license for bookkeepers, tax preparers, or basic

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