Are your loved ones qualified to serve as personal representative of your estate?
In the State of Florida, a personal representative is an individual (or organization) who has been tasked with the management of an estate going through the probate process. Many other states refer to this role as an “executor”. Generally, a personal representative is responsible for taking an inventory of the assets of the estate, distributing those assets in according to either a Last Will and Testament or Florida law, and dealing with any creditors of the estate. Florida law allows you to nominate who you would like to serve as the personal representative of your estate in your Last Will and Testament. However, did you know that your nominated individual is subject to final approval by the probate court? Your Florida wills, trusts, and estates attorney can help guide you in choosing someone to serve as your personal representative who would be qualified to serve under the law.
In order to serve as a personal representative of an estate in the State of Florida, the nominated individual must comply with the provisions of Section 733.303(1), Florida Statutes, which states that a person is not qualified to serve as a personal representative of an estate if he or she:
- Has been convicted of a felony;
- Has been convicted in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult, as those terms are defined in s. 825.101;
- Is mentally or physically unable to perform the duties; or
- Is under the age of 18 years.
Also, according to Section 733.304, Florida Statutes, it is important to note that the person whom you nominate to serve as your personal representative must be a Florida resident unless the nominated person is:
- The legally adopted child of the decedent;
- A lineal blood relative of the decedent;
- The spouse, sibling, aunt, uncle, nephew, niece of the decedent, or a lineal blood relative of any of these persons; or
- The spouse of a person otherwise qualified above.
When choosing your personal representative, not only should it be someone you trust, but it must be someone who stands a chance of being appointed by the probate court. This is why it is very important to have a knowledgeable Florida estate planning attorney at your side when crafting your estate plan.
Please note that should you pass away without properly naming a qualified person to serve as personal representative of your estate, you risk someone you would prefer not to serve taking the role. For instance, under Florida law, any interested person can petition to become personal representative of your estate. Though, under Section 733.301, Florida Statutes, there is a list of priority on who can serve as personal representative.
In an estate with a valid will admitted to a probate matter (a testate estate), the order of priority of personal representative is as follows:
- Whoever was nominated in the will admitted to probate.
- The person chosen by the majority of interest of the persons entitled to the estate.
- Anyone entitled to a gift under the will (if more than one is qualified, the court will choose the most qualified to serve).
In an estate without a valid will admitted to a probate matter (an intestate estate), the order of priority of personal representative is as follows:
- The surviving spouse.
- The person selected by a majority in interest of the heirs.
- The heir nearest in degree (if more than one is qualified, the court will choose the most qualified to serve).
Barreau Legal, PLLC is a Port St. Lucie based estate planning and probate administration law firm which has the background and knowledge to craft a solid estate plan and probate administration skills to help preserve your legacy for generations to come. If you have concerns about how your assets will pass when you die or keeping your estate out of probate, please reach out to Barreau Legal, PLLC for a free consultation at 772-236-5204 or firstname.lastname@example.org.