Who Can Serve as a Personal Representative in Florida? Start With the Right Questions

Under Florida law, a person who is sui juris (legally able to act for themselves), not under 18, and a Florida resident when the decedent died can qualify. Other rules can still disqualify a person, including a felony conviction, a mental or physical inability to do the job, or nonresident status that doesn’t fit the family rules. Florida calls this role the personal representative, and many readers know it as an executor.

Who This Question Usually Comes From

Most people asking this question are family members. A parent, spouse or sibling has died. A will may name them, or the family may need to decide who should step in. In Florida, this office is called the personal representative (often called an executor). This page covers who qualifies, how residency and family ties matter, the order the court follows, why entities are limited, and what can stop a person from serving.

The Basic Individual Qualifications Under Florida Law

A person qualifies when they are sui juris, were a Florida resident at the time of death, and are not disqualified. The core test sits in Fla. Stat. § 733.302. Residency is measured at the decedent’s death, not at the later date of appointment.

Under Fla. Stat. § 733.303, a person is not qualified to act as a personal representative if the person 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. A person is not qualified if they have a felony conviction. The same is true for a conviction of abuse, neglect, or exploitation of an elderly person or a disabled adult. A person who is mentally or physically unable to perform the duties is also out. So is anyone under 18.

Here is the mistake many families make. Being named in a will does not settle the question. A person who is under the age of 18 is not qualified to act as personal representative under Fla. Stat. § 733.303, and if the person named as personal representative in the will is not qualified, letters are granted as provided in s. 733.301. Under Fla. Stat. § 733.303, if the person named as personal representative in the will is not qualified, letters shall be granted as provided in s. 733.301. The court grants letters, which is its authority for the personal representative to act for the estate.

Florida Residents and Nonresidents

A Florida resident who meets the basic rules can serve. A nonresident can serve only in certain family relationships. Under Fla. Stat. § 733.304, a person who is not domiciled in Florida cannot qualify as personal representative unless the person is a legally adopted child or adoptive parent of the decedent; related to the decedent by lineal consanguinity; a spouse, brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or the spouse of a person otherwise qualified under that section. They also qualify if they are related by lineal consanguinity (a direct blood line) to the decedent.

These include a spouse, a brother, sister, uncle, aunt, nephew or niece of the decedent, or a person related by lineal consanguinity to any of them. The spouse of an otherwise qualified person also qualifies. Florida defines domicile as a person’s usual place of dwelling (Fla. Stat. § 731.201).

A personal representative usually must post a bond. Under Fla. Stat. § 733.402, the will or the court can waive the bond. The court can also require, increase or decrease it. Whether a nonresident fits depends on the facts. Bring the decedent’s residence history and a family tree to any consultation.

Priority Order When No One Is Named or Qualified

When a will names a personal representative, that nominee comes first in line, but only if qualified. Fla. Stat. § 733.301 sets the rest of the order. In a testate estate (one with a will), the order runs as follows:

1. The nominee in the will.
2. The person selected by a majority in interest of the persons entitled to the estate.
3. A devisee under the will.

In an intestate estate (no valid will), the order changes. The surviving spouse comes first. Next is the person selected by a majority of the heirs. Then comes the heir nearest in degree. If more than one heir applies, the court may choose the most qualified one.

If no one with preference applies, the court appoints a capable person. That person cannot work for the court or hold office under a probate judge. For wider context on how appointment fits the probate process, see our professional trustee and executor services page.

Corporations, Trust Companies and Professional Fiduciaries

Fla. Stat. § 660.41 prohibits corporations from acting in that role within Florida. The narrow exception covers a nonresident decedent’s estate where a corporate personal representative is duly authorized, qualified, and acting as such in the decedent’s home state, and it may act in Florida only as a foreign personal representative with the powers permitted by § 734.101.

Some institutions do qualify. Fla. Stat. § 733.305 allows Florida trust companies, state banking corporations and state savings associations, and national banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida to act as personal representatives.

Trust Counsel’s attorneys can serve individually as trustee or personal representative, and the firm advises and represents trustees, personal representatives and beneficiaries. The firm itself does not serve in those roles. An individual attorney, like any individual, is evaluated under the rules in §§ 733.302 and 733.303.

Disqualification, Conflicts and How Qualification Is Confirmed

A personal representative who was not qualified at appointment must resign right away. Fla. Stat. § 733.3101 requires a personal representative who knows he or she was not qualified at the time of appointment to resign immediately. If a personal representative who was qualified at appointment later learns they would no longer qualify, they must promptly file and serve a notice setting forth the reasons. An interested person served with that notice has 30 days to petition for removal. A personal representative who fails to follow this section is personally liable for costs, including attorney fees, incurred in any removal proceeding if the personal representative is removed, and this liability also applies to a personal representative who did not know, but should have known, the facts that required resigning or filing and serving notice.

Fla. Stat. § 733.504 lists other removal causes. These include adjudicated incapacity, failure to obey a court order, and failure to account for estate assets. Wasting or mismanaging the estate is another cause, as is holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole, though that second cause does not apply to a surviving spouse exercising the elective share, family allowance, or exemptions.

Conflicts matter too. Under Fla. Stat. § 733.610, a sale or encumbrance to the personal representative, or to a spouse, agent or attorney, or to any corporation, other entity, or trust in which one of them has a substantial beneficial or ownership interest, is voidable by any interested person except one who has consented after fair disclosure. So can a transaction affected by a conflict of interest, unless the will or a contract entered into by the decedent expressly authorized the transaction, or the court approved it after notice to interested persons. See our page on whether a personal representative can transfer property to himself.

Family members can raise these questions early. Fla. Stat. § 733.2123 provides that a person who is served with formal notice of the petition for administration before the issuance of letters, or who has waived notice, may not challenge the validity of the will, testacy of the decedent, venue, or jurisdiction of the court, except in the proceedings before issuance of letters. The Florida Courts probate checklist covers the petition for administration and appointment requirements.

Next Steps If You Have Been Asked to Serve

If someone has asked you to serve, start by checking the basic rules above. Then decide whether you can and should accept. This is a hard time, and you may not have expected the request. Take it one step at a time.

The usual steps are to find the will, file a petition for administration, and obtain letters. After appointment, you manage the estate under chapter 733.

Trust Counsel, PL offers a free, confidential first consultation with no obligation to continue. Call (305) 707-7126 or schedule online. Leslie V. Marenco is the responsible lawyer for this page. Tanya Vega is also a lawyer at the firm. Trust Counsel, PL’s only office is in Coral Gables.