Who Can Serve as Personal Representative of Your Estate?

The Personal Representative of an estate is tasked with a number of duties, powers, and responsibilities when they are appointed.  A preliminary question that is often overlooked, however, is who may be appointed to serve as the Personal Representative of an estate?  This question is answered by the Florida Statutes §733.301 – 733.3101.  The Personal Representative must meet certain requirements to be appointed.

A person who dies with a Last Will and Testament is said to have died “Testate”.  For a Testate Estate, Florida Law lists the preference order for the Personal Representative as:

1)      The Person nominated in the Will.  If the person named in the Will is an out-of-state person, then the person named must meet the relative of the decedent exception as defined by Florida Statutes §733.304. 

2)      A person having consent of a majority of beneficiaries.

3)      A devisee under the Will. When there is more than one devisee, the Court may select the one it believes is most qualified.

A person who dies without a Last Will and Testament is said to have died “Intestate”.  For an Intestate Estate, Florida Law lists the preference order for the Personal Representative as:

1)      The surviving spouse.

2)      The person selected by a majority of the heirs.

3)      The heir that is nearest in degree to the decedent. If there is more than one, the Court may select the heir it believes is most qualified. 

Florida Statute §733.303 discusses persons that are specifically barred from serving as the Personal Representative of an estate.  A person that has convicted of a felony may not serve.  Anyone physically or mentally incapable to perform the duties of a Personal Representative may not serve.  Anyone that has not reached 18 years of age will not be able to serve as Personal Representative.  Further, as discussed above if a person is a nonresident, they will be unable to serve unless they meet the exceptions in §733.304. These rules are of particular importance because per §733.3101 a personal representative who knows they are not qualified must resign, and could be liable for the costs associated with being removed as Personal Representative if such person knew, or should have known, that they were unqualified to serve in the role of Personal Representative. 

If you find yourself questioning whom you should name as Personal Representative in your estate planning documents, or if you find yourself in the position of possibly serving as the Personal Representative of another’s estate, it is in your best interests to speak with an experienced attorney regarding the issues you are facing. 

Author: Matthew D. Pineda, J.D., LL.M., LLMLE

Note: The information in this blog post is provided as a service to the internet community, does not constitute legal advice, and should not be construed as legal advice or legal opinion on any specific facts or circumstances.