Florida Personal Representative Requirements, Explained

If you’re looking into the requirements to be appointed as personal representative in Florida, the short answer is this. A candidate generally must be qualified under Florida law, fall within the statutory order of priority, and be granted letters by the court. Each step depends on the governing will, applicable Florida law, and the facts of each case. This page explains the general framework. It does not apply those rules to any particular estate.

Short answer: what Florida law generally looks at

Florida generally looks at three questions. Is the person qualified? Where does that person fall in the order of priority? What does the court decide in this estate? The answers depend on whether there is a will and on applicable Florida law.

Qualification comes first. Florida’s rules on who may serve appear in several sections of the probate code, so a candidate should check each one. Priority comes next. The court then decides whether to grant letters of administration, the court document that lets the personal representative act for the estate. Florida probate procedures also govern when a case can proceed without full administration.

Nothing here replaces a review of the actual will, the court file, and the facts of the estate.

What a personal representative is under Florida law

A personal representative (often called an executor) is the person who handles a deceased person’s estate under probate administration supervised by the court. Florida uses the term personal representative throughout its probate code. This page uses the word executor only as a reader’s word.

The role’s scope depends on the will, applicable Florida law, and any court orders. Some tasks may come from the will. Others may come from statute or from the court’s orders in that case. Two estates can give the same role very different tasks.

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries. As an entity, Trust Counsel, PL is not appointed as trustee or personal representative. Its role is to advise and represent the people who hold those offices and the beneficiaries of the trusts and estates involved.

Order of priority when deciding who is appointed

Florida’s statute sets a preference order for granting letters of administration. The path depends on whether the person died with a will. Under Fla. Stat. § 733.301, the order differs for each type of estate.

In a testate estate (one with a will), the statute lists the personal representative nominated in the will first. Next comes a person selected by a majority in interest of those entitled to the estate. A devisee (a person named in the will to receive property) follows.

In an intestate estate (one without a will), the surviving spouse comes first. Next comes a person selected by a majority in interest of the heirs (people entitled to property under Florida’s intestacy rules). The heir nearest in degree follows. When several people apply at the same level, the court may choose one of them. Persons with equal priority may need to agree or ask the court to decide.

Under § 733.301(3), if no one in the order applies, the statute directs the court to appoint a capable person. That person cannot be someone who works for the court or for a probate judge. Check the actual filings against the statute, because the order depends on the will and the facts of each case.

Qualifications and disqualifications

Florida law lists several disqualifications. Under Fla. Stat. § 733.303, a person is not qualified if the person has been convicted of a felony. A person is also not qualified after a conviction for abuse, neglect or exploitation of an elderly person or disabled adult in any state or foreign jurisdiction.

Under § 733.303(1), a person is also not qualified if mentally or physically unable to perform the duties, or if under 18 years old. The general test appears in Fla. Stat. § 733.302. That section describes a person who is sui juris (legally able to manage their own affairs) and a Florida resident at the time of death. The probate code’s other limits also apply.

Whether a disqualification applies depends on the statute’s text, the person’s status, and the facts of each case. If the will names someone who is not qualified, § 733.303(2) says letters are granted as provided in § 733.301. A nomination in a will does not end the review. The nominee still has to meet these requirements. A court may also hear objections from interested persons, and the outcome depends on the governing instrument, applicable law, and the facts of the case.

Residency, nonresidents and related practical requirements

Residency can limit who may serve. Under Fla. Stat. § 733.304, a person not domiciled in Florida cannot qualify unless the person falls within a listed group. That group includes a legally adopted child or adoptive parent of the decedent. It also includes a person related by lineal consanguinity (a direct line of ancestry or descent).

The group also covers a spouse, brother, sister, uncle, aunt, nephew or niece of the decedent, or someone related to them by lineal consanguinity. It includes the spouse of a person otherwise qualified under that section. How these categories apply depends on the family facts and applicable Florida law.

A bond is another practical step. Under Fla. Stat. § 733.402, unless the will or the court waives it, a fiduciary to whom letters are granted must file a bond with surety. The bond is payable to the Governor and must be joint and several. On petition or on its own motion, the court may waive, require, increase or decrease the bond. Whether a bond is needed depends on the will, the court’s decision, and the facts of the estate.

How appointment is requested from the court

Appointment usually begins with a petition. Under Fla. Stat. § 733.202, any interested person may petition for administration. An interested person is someone who may reasonably be expected to be affected by the outcome. See Florida’s definition of interested person for the statutory wording.

If the court grants the petition, it can issue letters of administration. The steps, documents, and timing depend on the estate, applicable Florida law, and the court’s procedures. Until letters are granted, a nominee’s authority over estate assets generally depends on applicable law and the facts.

Pay for a personal representative is also a statute and court question. Under Fla. Stat. § 733.617, a personal representative is described as entitled to a commission for ordinary services. That entitlement depends on the will, applicable law, and the facts of each administration. A personal representative may also renounce all or part of that compensation.

Fla. Stat. § 733.3101 distinguishes between a personal representative who was not qualified at the time of appointment and one who was qualified at appointment but later becomes unqualified, and how each situation applies depends on the governing instrument, applicable law and the facts of each case. Under § 733.3101, and depending on the governing instrument, applicable Florida law and the facts of each case, a personal representative who was qualified at appointment but later becomes unqualified may be required to file and serve a notice of the reasons. The section also describes a 30-day period after that notice is served, during which an interested person who received it may petition to remove the personal representative. How that period applies in a given estate depends on applicable Florida law and the facts of each case.

If you have been named or asked to serve

Being named in a will or asked to serve can arrive at a hard time. You may be grieving. You may be handling a relative’s estate for the first time. You may not know whether you qualify or whether to accept the role.

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries. Whether the firm’s lawyers advise or represent anyone in a particular matter depends on the governing instrument, applicable law, and the facts of each case. The firm has one office, in Coral Gables, Florida.

Can a nonresident of Florida serve as personal representative?

Sometimes. Florida limits nonresidents to certain relatives and related persons under § 733.304, and the answer depends on the facts.

Does a personal representative always need to post a bond?

Not always. The will or the court can waive the bond requirement under § 733.402, depending on the facts of each estate.

Can someone with a felony conviction serve?

Under § 733.303(1)(a), a felony conviction is listed as a disqualification. How it applies depends on applicable law and the facts of each case.

If you’ve been asked to serve as personal representative for a family member’s estate, our Coral Gables office can talk through how these rules may apply to your situation. Call (305) 707-7126 or use the online scheduling page to discuss the requirements to be appointed as personal representative in Florida for your specific estate.