Who Can Act as a Personal Representative in Florida?

Who can act as a personal representative in Florida? Florida law provides that 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; is related by lineal consanguinity to the decedent; is a spouse, brother, sister, uncle, aunt, nephew or niece of the decedent, or someone related by lineal consanguinity to any such person; or is the spouse of a person otherwise qualified under that section (Fla. Stat. § 733.304). A person named in a will comes first in line, but the court still checks qualifications. Here is how the rules work, in plain words.

What Is a Personal Representative in Florida?

A personal representative is the person a court appoints to handle a deceased person’s estate through probate. Florida’s probate code defines its key terms in Fla. Stat. § 731.201. Many people say “personal representative (often called an executor),” and that everyday word means the same role.

The role comes from a court order. A will can name someone, but that person has no authority until the court acts. The court issues letters of administration, the document that confirms the appointee can act for the estate.

A trustee is different. A trustee manages a trust, which is a separate arrangement that may hold property outside probate. Probate rules and trust rules are not the same, so it helps to know which one governs the property at issue.

Who Has Priority to Be Appointed?

The person named in a will comes first under Florida’s order of preference. Fla. Stat. § 733.301 sets that order. When there is a will, the order runs like this:

• The nominee named in the will.
• A person selected by a majority of those entitled to the estate.
• A devisee under the will, meaning someone the will gives property to.

When there is no will, the surviving spouse comes first. Next comes a person selected by a majority of the heirs, then the heir nearest in degree.

Priority is a starting point, not a final answer. If more than one devisee applies, or, when there is no will, more than one heir nearest in degree applies, the court may select the one best qualified (Fla. Stat. § 733.301).

Families often miss one point. If a person who had preference at the time of appointment, did not waive it and was not served formal notice seeks the appointment, letters already granted can be revoked. That person may then receive letters after formal notice and a hearing.

If no one entitled to apply does so, the court must appoint a capable person. That person cannot work for the court or hold office under a probate judge.

Who Is Disqualified From Serving?

A person is disqualified if they are under 18. A felony conviction also disqualifies a person, as does a conviction for abuse, neglect or exploitation of an elderly person or disabled adult. A person who is mentally or physically unable to do the job is disqualified too. 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, is mentally or physically unable to perform the duties, or is under the age of 18 years. The conviction rule covers convictions in any state or foreign jurisdiction.

Being named in a will does not make someone the personal representative. If the named person is not qualified, the court grants letters under the order of preference in § 733.301.

A personal representative who learns they were not qualified at appointment must resign immediately. Fla. Stat. § 733.3101 requires this. If the personal representative later learns they would not qualify, they must file and serve a notice. An interested person served with that notice then has 30 days to petition for removal.

Watch the deadline if you want to challenge a will. Fla. Stat. § 733.212 requires an objection to the will’s validity, the venue, or the court’s jurisdiction within 3 months after the notice of administration is served on you. After that, those objections are forever barred. The only extension allowed is for estoppel based upon a misstatement by the personal representative about that deadline.

Can a Beneficiary or Heir Serve as Personal Representative?

Yes. Being a beneficiary or heir does not, by itself, disqualify a person. A beneficiary is an heir at law in an intestate estate or a devisee in a testate estate. § 731.201 defines those terms. Under Fla. Stat. § 733.302, subject to the limits in that part of the code, any person who is sui juris and a Florida resident at the time of the death is qualified to act as personal representative.

Beneficiaries often serve because the law places them near the front of the line. A surviving spouse, a devisee, or the nearest heir can each have preference under § 733.301. Whether a particular beneficiary should serve depends on the facts of the estate, including the family relationships and the assets involved.

Serving also brings duties. § 733.212 sets out that duty. Under Fla. Stat. § 733.212, the personal representative shall promptly serve a copy of the notice of administration on persons known to the personal representative, including the decedent’s surviving spouse and beneficiaries. That can bring questions from family members.

Nonresidents, Banks, Trust Companies and Law Firms

A person who is not domiciled in Florida cannot serve unless a close family tie applies. Fla. Stat. § 733.304 allows a nonresident who is a legally adopted child or adoptive parent of the decedent. It also allows a direct-line blood relative of the decedent; the decedent’s spouse, brother, sister, uncle, aunt, nephew or niece, or a direct-line blood relative of any of them; or the spouse of a person otherwise qualified.

Some companies can serve. § 733.305 allows Florida trust companies, and banks and savings associations authorized to exercise fiduciary powers in Florida, to act as personal representatives. But § 660.41 bars corporations from acting as personal representative within Florida, except that it does not apply to Florida banks, associations and trust companies with trust powers, or national banking and federal associations authorized to exercise trust powers in Florida. That bar has a limited exception for certain foreign personal representatives of nonresident decedents.

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries.

How the Court Appoints the Personal Representative

The process starts with a petition. Fla. Stat. § 733.202 says any interested person may petition for administration. The petitioner may serve formal notice of the petition on interested persons. § 733.2123 says a person served before letters issue generally cannot later challenge the will, testacy, venue or jurisdiction, except in those pre-letters proceedings.

After the court acts, it issues letters of administration. Those letters are the proof that the appointee can act for the estate.

A personal representative is entitled to a commission from estate assets for ordinary services. § 733.617 says the commission is paid without court order. It is based on the estate’s compensable value, which is the inventory value of probate assets plus income the estate earned. An attorney who prepared or supervised the execution of the will naming them generally is not entitled to compensation for that service, unless a statutory exception applies. Fla. Stat. § 733.617 reads: “(8)(a) An attorney serving as a personal representative, or a person related to the attorney, is not entitled to compensation for serving as a personal representative if the attorney prepared or supervised the execution of the will that nominated the attorney or person related to the attorney as personal representative, unless the attorney or person nominated is related to the testator, or the attorney makes the following disclosures to the testator before the will is executed: 1.”

Talk With Trust Counsel About Your Situation

When someone you love has died, and their will names you or someone you’re unsure about, questions about who can serve can’t wait. You may be asking whether you qualify, whether a relative who lives out of state can serve, or whether a challenge is possible.

Frequently asked questions