Who can serve as my Personal Representative in Florida?
Florida has some different regulations as to who may serve as your personal representative.
The answer to this question is found in Fla Statue 733.302., 733.303, and 733.304. The ground rules for any person to serve as the personal representative is that they are over 18, never convicted of a felony, be mentally and physically able to perform the duties, and be one of the following:
- Any blood family member, regardless of where they live; or
- Any friend, but that friend must be domiciled in the State of Florida at the time of your death; or
- A professional fiduciary, such as the trust department of a bank or an attorney.
Can I name my brother-in-law or my sister-in-law as the personal representative under my will?
Maybe. If your in-law is domiciled in Florida and meets the requirements of being over 18, never convicted of a felony, and mentally and physically able to perform the duties, then yes. But this is a question that the court will analyze when your Estate is opened. If your in-law lives in another state and has no plans to move to Florida, he is probably not a good choice to name.
What happens if my friend is not a Florida resident but intends to move here sometime in the future? Can I name him now in my Last Will as the Personal Representative?
This is where The Rule of Three and The Planning Horizon come into play in developing your estate plan. Remember, the Court would determine if the nominated person meets the qualifications of the Personal Representative at the time of your death, and a Petition for Administration is filed.
If the nominated person does not meet the requirements at the time of your death, they cannot be appointed. The procedure for what happens, in this case, is found in Fla Statute 733.301. They will be asked to sign a waiver and consent to appoint the next nominated person under your Last Will. If they cannot be found or refuse to cooperate, it will increase your administration's cost and time. If no one meets the qualifications to be the personal representative under your Last Will and Testament, the beneficiaries of your estate will have to get together and nominate someone who is qualified to serve, or the judge will appoint a professional fiduciary to serve in that capacity. This will also increase the time and the cost of your estate administration.
I think it's important to remember that your planning horizon should cover the possibility of death or capacity for the next three to five years. With that in mind, I would recommend only nominating people to serve that qualify now.
I would advise against naming someone to the role of personal representative that does not presently qualify to serve at the present time.
All the people I would want to serve as my Personal Representative are not blood family members and do not live in the State of Florida. What can I do to get around this problem?
You have two choices in this situation. First, there is no such restriction that a Trustee must be a Florida resident, so you can instead create a Revocable Trust Agreement as your primary estate planning instrument. Or second, you can name a trust department or an attorney to serve (which I also do not recommend, but sometimes is the best option). You need to work with an estate planning attorney to get specific legal advice on this subject.
Ask a Question
If you have a general question that you would like answered by a Florida Estate Planning and Administration Attorney, please use the contact form to send Shawn a question. As long as it is general (and not too specific to your unique situation), Shawn will answer these questions in the form of a Frequently Asked Question to help you but also help others in our community.
Shawn can not offer legal advice in this format. He can only provide general information that you may find helpful. You should call an attorney and seek legal advice if you need specific legal advice.
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Law Office of Shawn C. Newman, P.A.
710 Northeast 26th Street
Wilton Manors, FL 33305-1238
Phone: (954) 563-9160
Serving all of the greater Fort Lauderdale area and Broward, Palm Beach, and Miami-Dade counties in Southern Florida.