The personal representative of a person’s estate has significant responsibilities once appointed. Although many people choose their personal representatives by including that choice as a provision in their will, not everyone who passes away has a will or names a personal representative, even if they do have a will.
In other cases, the personal representative chosen by the deceased person has also passed away or is otherwise unable to fulfill their duties. When these situations arise, it is essential to understand how the probate court selects a personal representative for an individual’s estate. Consult an Aventura estate planning attorney at Kramer Green for advice about creating and maintaining the most effective estate plan for your family.
Requirements to Serve as Personal Representative
All personal representatives must be adults over 18 years of age and may not have certain criminal convictions. An individual appointed by the probate court as a personal representative must also be mentally and physically capable of handling the duties and responsibilities of the role. Anyone who meets these requirements can serve as a personal representative. However, the Personal Representative must be a relative or a Florida resident.
Order of Preference for Choice of Personal Representatives
Florida Statutes 733.301 outlines the statutory preferences for the choice of personal representatives. These preferences vary depending on whether the estate is testate, meaning the deceased person has a will, or intestate, meaning the person does not have a will.
In a testate estate, the order of preference of personal representative is the following:
- The personal representative, or their successor, nominated by the will or under 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 court may select the one best qualified.
In an intestate estate, the order of preference of personal representative is the following:
- 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 court may select the one best qualified.
Additionally, a guardian of the property of a ward who, if competent, would be entitled to appointment as, or to select, the personal representative,
Finally, whether it is a testate or an intestate estate, if none of the preferred persons elect to be the personal representative, the court shall appoint any capable and eligible person, subject to some limitations.
Frequently Asked Questions (FAQ)
Can an out-of-state resident serve as a personal representative in a Florida estate?
Yes, an out-of-state resident can serve as a personal representative in a Florida estate, but only under certain circumstances. An out-of-state resident may only serve as a personal representative if they fall within one of the following categories:
- A legally adopted child or adoptive parent of the decedent;
- Related by lineal consanguinity to the decedent;
- 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
- The spouse of a person otherwise qualified under this section.
An out-of-state resident may not serve as a personal representative unless they have one of these relationships with the deceased person.
What types of criminal convictions disqualify a person from being appointed a personal representative in a Florida estate?
If you have been convicted of any felony offense, you cannot serve as a personal representative of a Florida estate. Likewise, if you have a conviction in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult, you cannot serve as a personal representative.
If the court must appoint a personal representative for an estate and none of the preferred persons listed in the statute are willing or able to serve, are there any restrictions on who the court appoints?
Yes. The person whom the court appoints must be capable. Additionally, the person appointed cannot be either of the following:
- A person works for or holds public office under the court.
- A person who is employed by, or holds office under, any judge exercising probate jurisdiction.
Call Kramer Green for Personalized Estate Planning Advice
Getting advice about the probate process can have a significant impact on the estate planning process. A Boca Raton estate planning lawyer at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. can assist you in drafting or updating your comprehensive estate plan. Our goal is to allow your heirs to avoid probate, create the best vehicles for preserving your assets, and ensure that your family can more easily deal with losing a loved one.
Allow us to help you navigate through the complex world of estate planning. Contact our office today at (954) 966-2112 or online to schedule a time to discuss drafting a will and related estate planning issues with our Hallandale Beach estate planning attorney.