Can I Serve as a Personal Representative of a Florida Estate? It Depends on Who You Are and What You Did

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Subject to … limitations …, any person who is sui juris and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to act as personal representative in Florida.” Section 733.302, Florida Statutes (2016).

So what are those limitations or exceptions?

Pursuant to Section 733.303(1) of the Florida Statutes, even if you are sui juris (of age and possessing full legal capacity) and a resident of Florida, you will be disqualified from serving as a Personal Representative if (1) you have been convicted of a felony, (2) you are mentally or physically unable to perform the duties and (3) you are under the age of 18 years. Section 733.303(1), Florida Statutes (2016).

But what if your felony conviction was decades ago and you are the child or the spouse of the decedent — are there exceptions? Unfortunately, there are none. See In re: Estate of Sharonda Renae Butler, 189 So. 3d 1050 (Mem) (Fla. 4th DCA April 20, 2016). A convicted felon may not serve as a personal representative in Florida under any circumstances.

What if you have not been convicted of a felony but you are not a Florida resident? Are you still automatically disqualified from serving as a Personal Representative or are there exceptions? When it comes to non-Florida residents, there are exceptions.

Pursuant to Section 733.304 of the Florida Statutes, a non-Florida resident may serve as a Personal Representative as long as that non-Florida resident is related to the decedent in one of the following ways. The non-Florida resident must either be (1) a legally adopted child or adoptive parent of the decedent; (2) a person related by lineal consanguinity to the decedent; (3) a spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or (4) the spouse of a person otherwise qualified under this section.

So who is that person who must be related by lineal consanguinity to the decedent? As long as a non-Florida resident is related by a direct line of descendancy from a common ancestor, that person would be qualified to act as the decedent’s Personal Representative.

At the same time, however, this also means that a nonresident friend of a decedent, a colleague, a significant other as well as a business partner would not be eligible to serve as a Personal Representative of a Florida estate.

So what happens if the decedent has actually nominated in his or her last will a nonresident friend to be his or her Personal Representative? In that case, a Personal Representative would be appointed pursuant to the order of preference contained in Section 733.301 of the Florida Statutes. That order of preference depends on whether the estate is testate (with a will) or intestate (without a will).

Pursuant to Section 733.301 of the Florida Statutes, in testate estates, the order of preference is as follows:

  • The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.
  • The person selected by a majority in interest of the persons entitled to the estate.
  • A devisee under the will. If more than one devisee applies, the best qualified as selected by the court.
  • a capable person as appointed by the court.

Sections 733.301(1)(a) and 733.301(3), Florida Statutes (2016).

In intestate estates, the order of preference is as follows:

  • The surviving spouse.
  • The person selected by a majority in interest of the heirs.
  • The heir nearest in degree. If more than one applies, the best qualified as selected by the court.
  • a capable person as appointed by the court.

Sections 733.301(1)(b) and 733.301(3), Florida Statutes (2016).

Although the foregoing statutory scheme may appear to limit who may serve as a Personal Representative of a Florida estate, in practice, the pool of qualified persons is still large enough where an appointment by the court is usually unnecessary.

However, this statutory scheme should always be taken into account when a will is being drafted and a successor personal representative should always be nominated to ensure that the person who would ultimately be appointed as the decedent’s Personal Representative is actually someone who was in fact the testator’s choice to carry out his or her wishes and manage the estate per the specific instructions contained in the will.

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