Who Can Be a Personal Representative in Florida?

What a Personal Representative Is in Florida

A personal representative is the person a Florida probate court appoints to manage a deceased person’s estate. Florida’s probate code uses that term, as its definitions section shows. Many people call the same role an executor, so this page uses both words.

The job usually involves gathering estate property, paying valid debts, and distributing what remains. This page answers a narrower question: who may hold the office. It does not walk through each step of administration. Getting the eligibility question right early matters, because a problem with who holds the office can lead to a dispute later. For a wider look at disputes over trusts and estates, see our trust litigation overview.

General Qualifications Under Florida Law

Under the Florida probate code, any person who is sui juris (a legally competent adult) and who was a Florida resident when the decedent died is qualified to act. That qualification is “subject to the limitations” in the statute, so residency alone is not the whole test.

The statute does not require a family relationship with the decedent. The court still has to choose among eligible people, though. Under Fla. Prob. R. 5.235(a), the court appoints the person entitled and qualified to be personal representative. Who is entitled depends on the priority order covered below.

Who Florida Law Disqualifies

Florida law bars a person who has been convicted of a felony. It also bars a person convicted of abuse, neglect, or exploitation of an elderly person or a disabled adult, in any state or foreign jurisdiction. A person who is mentally or physically unable to perform the duties is barred, and so is a person under 18. The disqualification list sets out these grounds.

A disqualified person cannot receive letters, even if a will names that person. If the nominee in the will is not qualified, the court grants letters as the priority statute provides, under § 733.303(2).

Florida law generally prohibits corporations from acting as personal representative of a decedent’s estate (Fla. Stat. § 660.41). Fla. Stat. § 660.41(1) addresses corporations acting as personal representative: a duly authorized, qualified corporation acting as personal representative in the decedent’s domicile jurisdiction may, as a foreign personal representative, perform the duties and exercise the powers permitted by s. 734.101 for a nonresident decedent’s estate. An exception covers a corporation duly authorized in the decedent’s home jurisdiction. Under § 733.305(1), certain Florida trust companies and authorized banks may act. A law firm is not among the entities that statute names.

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

Nonresidents and Out-of-State Nominees

A person who does not live in Florida can serve only in certain family relationships. Under § 733.304, the qualifying relationships include a legally adopted child or adoptive parent of the decedent. They also include a person related by lineal consanguinity (a direct blood line), a spouse, or a brother, sister, uncle, aunt, nephew, or niece. The statute also covers a spouse of an otherwise qualified person.

Florida’s probate rules add a filing step. Fla. Prob. R. 5.235(a)(3) requires that any required designation of, and acceptance by, a resident agent be filed. A resident agent gives the estate a Florida contact for legal papers.

Whether a particular out-of-state relative fits these categories depends on the facts. Families should confirm the statutory conditions before a petition is filed.

Who Gets Priority When the Will Names No One or Names an Ineligible Person

Florida law gives priority to the person the will names, then to a set list of others. Under § 733.301(1)(a), the order in a testate estate starts with the nominee in the will. Next comes the person selected by a majority in interest of the persons entitled to the estate. A devisee under the will comes third.

When there is no will, the order changes. Under § 733.301(1)(b), the surviving spouse comes first. The person selected by a majority in interest of the heirs comes next, then the heir nearest in degree. A beneficiary is an heir at law in an estate without a will, or a devisee in an estate with a will, under § 731.201.

Under § 733.301(3), when no one with priority applies, the court appoints a capable person, but no one who works for or holds public office under the court, or who is employed by or holds office under any judge exercising probate jurisdiction, may be appointed under this subsection.

Being a beneficiary is not on the disqualification list in § 733.303(1). A beneficiary can therefore be eligible, if the priority order reaches that person. If a later will is admitted to probate, the letters are revoked and new letters are granted under § 733.301(5).

How a Personal Representative Proves Authority

A personal representative’s authority comes from the court’s appointment and the letters that follow. Under Fla. Prob. R. 5.235(b), letters are issued to the personal representative once the appointment requirements are met. Letters are the court document that shows the appointee may act for the estate.

A bond is another part of the picture. Unless the will or the court waives it, a fiduciary who receives letters must file a bond with surety, under § 733.402(1). Fla. Stat. § 733.402 reads: “(1) Unless the bond requirement has been waived by the will or by the court, every fiduciary to whom letters are granted shall execute and file a bond with surety, as defined in s. 45.011, to be approved by the clerk without a service fee.” The court may waive a bond, require one, or change the amount, under Fla. Prob. R. 5.235(c).

If an appointee later learns he or she was not qualified, the rules require action. Under § 733.3101, a personal representative who knew of the problem at appointment must resign immediately. One who knows he or she would no longer be qualified for appointment must promptly file and serve notice setting forth the reasons. An interested person served with that notice may petition for removal within 30 days. Fla. Prob. R. 5.310 sets out what that notice must state.

Frequently Asked Questions

Talk With a Trust Counsel Attorney About Your Situation

Maybe a will names a relative who may not qualify. Maybe an out-of-state sibling wants the role, or two heirs disagree about who should file. These are the points where eligibility questions get hard. Leslie V. Marenco is the responsible attorney for this page. We serve clients in Florida, and our only office is in Coral Gables. To talk through your facts, call (305) 707-7126 or schedule online. The first consultation is free, confidential, and without obligation to continue.