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WHO CAN BE THE PERSONAL REPRESENTATIVE OF A FLORIDA PROBATE ESTATE?

Wednesday, January 5th, 2011 by

           As a Jacksonville, Florida Probate Lawyer, I often am asked who can be appointed personal representative in a Florida probate estate.  In Florida, the term “personal representative” is used, rather than the term “executor” or “executrix” as the title of the person who is under a duty to settle and distribute the estate of a decedent in accordance with the terms of the decedent’s Will and the Florida Probate Code. 

          If there is a Will (a testate estate), the person nominated in the Will to serve as the personal representative, or his or her successor, has preference in appointment.  If the persons nominated are unwilling or unable to serve, then the person selected by a majority in interest of the beneficiaries (persons entitled to the estate) has the next priority.  A third priority in a testate estate is any devisee (person who inherits) under the Will.  If more than on e devisee applies to serve as personal representative, the court may select the one best qualified.

          If there is no Will (an intestate estate), then the surviving spouse has first priority to serve as personal representative.  Next would be a person selected by a majority in interest of the heirs.  Third would be the heir nearest in degree.  Again, if more than one such heir applies, the court may select the one best qualified. 

          Who is not qualified?  A person is not qualified to act as a personal representative if the person has been convicted of a felony, is under the age of 18 years, or is mentally or physically unable to perform the duties.  A nonresident cannot qualify as a personal representative unless that person is a blood relative of the decedent, a legally adopted child or adoptive parent of the decedent, or the spouse of a blood relative. 

          As a Jacksonville, Florida Probate Lawyer, I can answer your questions about qualifications and preferences in appointment of personal representatives in probate cases in Clay, Duval, Nassau, and St. Johns counties, and any other area in Northeast Florida.

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Comments

  1. KATHY says:

    Dear Mr. Cramer:

    I am still alittle confused with the law when it comes to who can act as a personal representative in the state of Florida; Here’s my situation, My 80 year old Uncle who lives in Nokomis, FL.( I am his niece from RI) has no children and recently lost his spouse (my blood aunt).He planned on having 2 relatives (my husband and cousin both from RI) be co-executors when he finalized his will. He was recently told that Florida law only permits a Florida resident to be an executor or blood relative. This news upset my uncle. I researched it and it seems like my husband would have been able to be an executor along with my cousin. I read that the spouse of a niece/nephew etc… could hold this position. Again this is my blood aunts husband who wants to appoint his nephew, my husband to this very important job. Am I misreading the law on this???
    Thank you in advance!!!
    Kathy

  2. Jeffrey A. Cramer says:

    Kathy,
    You are reading the law correctly.

  3. Chris Harold says:

    what about a will executed while the testator is a resident of another state that permits a nonrelative, nor resident to be the executor. Then the testator moves to FL and becomes a FL resident? Full faith and credit, etc,,,,,, Thank you.

  4. Jeffrey A. Cramer says:

    The will may be valid, but it depends on the specific facts. You should consult an attorney to make sure. An attorney likely will be necessary to probate the estate, as well.

  5. Leslie Hand says:

    My step mother lives in Ft. Myers Florida. She married my father in 1966 when I was 18 but I was never adopted by her. I live in North Carolina and am her only living relative. She would like me to be the executor or her estate. Would I qualify under Florida law?

  6. Jeffrey A. Cramer says:

    Under the facts you have presented, you arguably might qualify as someone related by blood to your stepmother’s spouse. However, if your stepmother were to prepare a revocable living trust as her estate planning document, any doubt would be removed because you could serve as a successor trustee without question. Let us know if we can help further.

  7. Randy says:

    My son recently passed away and did not leave a will. He has a wife and three children.

    He had essentially no assets; his home is rented and the family car (8 years old) is in his wife’s name.

    He did have a ROTH IRA, naming his wife as primary beneficiary, and a brokerage account with only a small sum in it.

    The company holding the brokerage account is requesting court documents naming his wife as executrix or personal representative before they will transfer the money to her. I am concerned that the fees associated with establishing her as executrix may exceed the value of the account. Also, I do not know what the procedure is for establishing her as the executrix.

    My son lived in Sarasota County.

    Can you give me any advice/direction?

    Thank you!

  8. Jeffrey A. Cramer says:

    Unfortunately, your initial thinking likely is correct. If there is only a small sum in the account, filing a formal probate action in order to appoint a personal representative likely will cost more than the value of the account. It will also require that creditors be notified, so that they may file a claim against those monies. Because a lawyer generally is required to assist in the filing of a probate procedure, there would be necessary attorney’s fees in addition to court costs. If any creditors are known or suspected and if the account is valued at less than $5,000, it may not be worthwhile to seek the funds. Of course, this is just general advice/direction. For me to give you a specific answer would require a consultation and full briefing of the facts.

    The point to take away from this situation is that it could have been avoided by proper planning. Probate is necessary only to transfer property owned in a person’s individual name. If the brokerage account had been owned jointly with his wife or if she were named as a “pay on death” beneficiary, no probate would be necessary for that account to pass to the wife.

  9. Winston says:

    My father recently passed away and from what I know he told me there was never a will. He had mentally unstable and his wife took advantage of him and conjured up some will. She has been convicted as a felon on many charges. We his children want to represent him (clean slates). Who else possible would his wife be able to get to represent since she cannot?

  10. Jeffrey A. Cramer says:

    Your question can’t be answered here because there are too many variables. We would be happy to consult with you if you would give the office a call.

  11. warren p padla says:

    hi, unusual question; I am a florida resident, have a trust set up with my current rep. being u. s. trust; my only relative is a cousin who lives in new York state; I am aware he would qualify since blood is involved but here is the sticker; he was adopted at birth in Maine; I would like him to be my personal rep. he recently sent me a copy of his birth certificate from a maine hospital and the certificate does not mention a word about adoption; my blood uncles name is listed as his father. do u think it will be ok to change the rep. to my cousin since he could use the money. tks for your advice. warren

  12. Jeffrey A. Cramer says:

    Thanks for your inquiry. Unfortunately, I cannot answer the question without reviewing your documents and meeting with you to determine if we have all of the necessary facts before providing legal advice. We would be happy to schedule a consultation if you care to call the office. We also provide a free estate planning workshop each month which discusses revocable living trust planning in depth. The next workshop is May 6. You are welcome to attend.

  13. Joyce Stringer says:

    My mother died 8 months ago. She lived with me 10 years and named me Personal Representative of her will when she owned her house and had some money. All of her assets of cash virtually were spent taking care of her in poor health for the past four years. House was sold…she moved in with me…suffered complications from nursing home giving her bad drugs after hip surgery..we spent most of her money for healthcare after the devistating brain injury she received at the nursing home. I took care of her in my home with the help of nurses, aides, etc. I was her health POA, and Joint tenancy on her bank account. When she died in Hosptital from an infection.. I carried out whatever her will said, bury her in Arlington Cemetary next of my father. Donate $1000 to St Jude Hospital and she only named one granddaugter to receve $1000. Which I did out of the funds in the joint account. There was no other property in her name, until I received a letter from an insurance company about her account which had been turned into stocks and they were contacting my mother why she hadnt cashed divident checks for several years. Like four or five years. During that 4 or 5 years was the time my mother was going thru the awful health issues and neither of us had any contact wth the ins. company. My mother had no beneficiary on this account. The ins company sent me forms to get a Medallion stamp on the accout … 6K….but the bank where we had her bank acct will not do this for me..he lawyer wants 2K to open probate….this seems rediculous since I am the personal representative and sole benefit of her will…aside from the St Jude $1000 donation and the granddaugter $1000 gift which I sent. What should I do…do I really need to pay to probate this…or is there a better way…or is the Bank all wet in denying this Medallion …I have the recorded will …and my mother’s name was taken off the joint account. there are no outstanding bills or anything. Its just me.

  14. Jeffrey A. Cramer says:

    Unfortunately, if there was no beneficiary on the account, you will have to open a probate estate to obtain the money. 2k is not an unreasonable fee to accomplish this task. Had your mother named a beneficiary, it would not be necessary. Because she didn’t, this added expense has resulted.

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