When people sit down to write a will, one of the first questions is who should be in charge after they are gone. In Florida, that person is called the personal representative. (Other states often say "executor.") Many of our clients want to name the person they trust most, and that person often lives somewhere else: a partner who splits time up north, a best friend in New York, or a sibling in California.

Florida has an unusual rule about this. Some people who live outside Florida can serve as your personal representative, and some cannot, no matter what your will says. The dividing line is family relationship, and it leaves out the people many of our clients rely on most: unmarried partners and close friends. This article explains the rule, who it covers, who it leaves out, and how to plan around it.

What a personal representative does

A personal representative is the person the probate court appoints to handle your estate. That job includes gathering your assets, paying valid debts and expenses, and distributing what is left to the people named in your will (or, without a will, to your heirs under Florida law). Before the court issues "letters of administration," which are the papers that give the personal representative authority to act, the court must find that the person is qualified to serve. (Fla. Prob. R. 5.235.)

The basic rule: Florida residents can serve

Florida law starts with a simple rule. An adult who is a Florida resident when you die is generally qualified to serve. The statute says that "any person who is sui juris and is a resident of Florida at the time of the death" of the person whose estate is being administered is qualified. (§ 733.302, Fla. Stat.) "Sui juris" means legally able to manage one's own affairs.

Notice the timing. What matters is where the person lives when you die, not when you sign your will. A friend who lives in Fort Lauderdale today but retires to North Carolina before your death may no longer qualify.

A few people cannot serve no matter where they live. These include anyone under 18, anyone convicted of a felony, anyone convicted of abuse, neglect, or exploitation of an elderly person or disabled adult, and anyone who is mentally or physically unable to do the job. (§ 733.303.)

The out-of-state rule: section 733.304

For people who do not make Florida their home, a separate statute applies. Section 733.304 says that a person "who is not domiciled in the state cannot qualify as personal representative unless" the person fits within one of four groups. In plain English, someone living outside Florida can serve only if he or she is:

• Your spouse.
• Your blood relative in a direct line, such as your child, grandchild, parent, or grandparent. The statute calls this "lineal consanguinity."
• Your adopted child or adoptive parent.
• Your brother, sister, uncle, aunt, nephew, or niece, or a direct-line descendant or ancestor of one of those relatives, such as a niece's son.
• The spouse of anyone on this list, such as your nephew's wife or your son's husband.

The statute also reaches people "related by lineal consanguinity" to your spouse. Read literally, that can include your spouse's children and parents.

Same-sex spouses are spouses. Since the U.S. Supreme Court's decision in Obergefell v. Hodges (2015), states must recognize lawful same-sex marriages, including marriages performed in another state. A legally married spouse who lives outside Florida falls within the statute just like any other spouse.

Who the rule leaves out

Anyone who is not on the list and lives outside Florida cannot serve. That includes:

• An unmarried partner, no matter how long you have been together.
• Friends, including lifelong friends.
• Trusted advisors, such as an accountant or an attorney from your former home state.
• Cousins, godchildren, and in-laws who are not on the list. In one case, a Florida appeals court removed a personal representative who lived out of state and was the nephew of the decedent's former husband, not a blood nephew of the decedent. The court said he was "expressly prohibited from serving." (Angelus v. Pass, Fla. 3d DCA 2004.)
• Your partner's children, if you never adopted them and you and your partner were not married.
• Out-of-state banks and trust companies that are not authorized to act as fiduciaries in Florida. (§ 733.305.)

The Florida Bar's consumer guide to probate puts it simply: "An individual who is not a legal resident of Florida and is not closely related to the decedent cannot serve as a personal representative."

The rule has been challenged, and upheld

The Florida Supreme Court upheld this rule in 1980 in In re Estate of Greenberg. A man named his longtime attorney and tax advisor, who lived out of state, as a co-personal representative alongside his son. The court refused to appoint the advisor. The majority explained that estate administration "is an intensely localized matter," and said it was reasonable to exempt relatives because "more than likely, the nonresident relative will also be a beneficiary."

The decision was 4 to 3. The dissenting justices wrote that "a close personal advisor... is a far more rational choice by the decedent than the choice of remote strangers" the statute allows. That view did not carry the day, and the rule remains Florida law today.

Greenberg teaches a second lesson as well. The advisor was named to serve alongside the decedent's son, who was qualified, and that did not solve the problem. Naming an out-of-state friend as a co-personal representative does not get around the rule.

Why this matters for unmarried partners

The rule's logic assumes that the people closest to you are your relatives. For many of our clients, that is not true. Your partner of twenty years may be the person who knows your wishes best and the person who will inherit most of your estate. But if your partner lives outside Florida when you die and you were not married, Florida law does not allow your partner to serve as your personal representative, even if your will names your partner.

There is a second problem if you have no will at all. Florida's intestacy law, which decides who inherits when there is no will, provides for spouses, descendants, parents, siblings, and other relatives. It does not provide for an unmarried partner. (§§ 732.102, 732.103.) Without a will, an unmarried partner has no right to inherit, and no priority to be appointed, wherever he or she lives. (§ 733.301.)

Marriage changes the answer, because a spouse can serve wherever the spouse lives. Whether to marry is a personal decision with many consequences beyond estate planning, and it is not one to make just to fix this issue. Couples who are already married, or who are considering it, should know this is one of the legal effects.

What happens if the wrong person is named

If your will names someone who does not qualify, the court will not appoint that person. It turns to the next person in line: an alternate named in your will, then someone chosen by a majority of the beneficiaries, and then a beneficiary. (§ 733.301.) That may lead to delay, extra cost, or a personal representative you would not have chosen.

If an unqualified person is appointed anyway, the problem does not go away. Florida law now says a personal representative "shall be removed" if he or she "was not qualified to act at the time of appointment." (§ 733.504.) A personal representative who knows he or she was not qualified must resign, and can be held personally responsible for the costs of removal. (§ 733.3101.) In Angelus, the removed personal representative lost the right to the statutory fee and was limited to the reasonable value of his services.

Moving can also cause trouble mid-stream. If a personal representative qualified only because he or she lived in Florida, moving out of state during the administration is grounds for removal. (§ 733.504(11).)

Planning around the rule

The good news is that the rule is easy to plan around if you address it early. Here are the main options.

Name a qualified alternate

If your first choice lives outside Florida and is not on the list, name a successor who qualifies, either a Florida resident or a relative covered by the statute. You can also name a Florida trust company or bank that is authorized to act as a fiduciary here. (§ 733.305.) Keep in mind that a Florida friend who moves away before your death may no longer qualify, so it is wise to name more than one alternate and to revisit your choices from time to time.

Use a revocable trust

A revocable living trust works differently from a will. During your lifetime you serve as your own trustee and keep full control. When you die, the successor trustee you named takes over and manages and distributes the trust's assets without a probate case for those assets. Florida's Trust Code fills a trustee vacancy first with "a person named or designated pursuant to the terms of the trust to act as successor trustee." (§ 736.0704.)

Florida's Trust Code does not contain a residency rule for trustees like the one that applies to personal representatives. For many clients, that makes a trust the most direct way to put an out-of-state partner or friend in charge. Two cautions: assets must actually be titled in the trust's name for this to work, and most trust-based plans also include a short "pour-over" will that still needs a qualified personal representative if any assets end up in probate.

Address the bond

Florida law generally requires a personal representative to post a bond, a kind of insurance policy that protects the estate, "unless the bond requirement has been waived by the will or by the court." (§ 733.402.) A well-drafted will can waive bond. The court still has the final say and may require one anyway. In setting the amount, the court considers factors such as the value of the estate and "the relationship of the personal representative to the beneficiaries." (§ 733.403.) Banks and trust companies are not required to post bond. A trustee generally gives bond only if the trust requires it or a court finds one is needed. (§ 736.0702.)

Expect a resident agent

Even a qualified personal representative must take one more step before the court issues letters. Under the Florida Probate Rules, "a personal representative... must file a designation of resident agent" who agrees to accept legal papers on the estate's behalf. (Fla. Prob. R. 5.110(b).) The resident agent must live in the county where the probate case is pending, unless the agent is a Florida Bar member who lives in Florida. This rule applies to every personal representative, not only those who live out of state. The two exceptions are Florida trust companies or banks with a Florida office, and Florida lawyers who live and have an office in Florida. In practice, the estate's Florida attorney often serves as resident agent, so this is usually a formality rather than a burden.

A short checklist

1. Look at who your will names as personal representative and every alternate. Note where each person lives today.
2. For anyone who lives outside Florida, check whether he or she is your spouse or a relative on the statute's list.
3. If your first choice is an out-of-state partner or friend, name a qualified alternate, or consider a revocable trust with your partner or friend as successor trustee.
4. Name more than one alternate, in case someone moves, passes away, or cannot serve.
5. Ask whether your will should waive bond.
6. If you have a trust, confirm that your assets are actually titled in the trust.
7. Review your choices after a move, marriage, divorce, adoption, or death in the family.

We can help you plan

Choosing the right person to handle your estate is one of the most important decisions in any estate plan, and Florida's residency rule catches many families by surprise. The Law Office of Shawn C. Newman, P.A. helps individuals and couples review their wills, trusts, and fiduciary choices so the people they trust can actually serve. Initial consultations are free and can be held at our office at 710 NE 26th St, Wilton Manors, FL 33305, or by Zoom.

Call us at (954) 563-9160 to schedule a time to talk. You can also learn more at www.shawnnewman.com.

Give us a call. We can help.

Disclaimer: This article is for general educational purposes only and is not legal advice. Reading it does not create an attorney-client relationship with the Law Office of Shawn C. Newman, P.A. Laws change, and every situation is different. Please consult an attorney about your specific circumstances before acting on any information here.

Selected authorities

• Fla. Stat. §§ 733.301, 733.302, 733.303, 733.304, 733.305, 733.3101, 733.402, 733.403, 733.504 (2026)
• Fla. Stat. §§ 732.102, 732.103 (2026)
• Fla. Stat. §§ 736.0702, 736.0704 (2026)
• Fla. Prob. R. 5.110, 5.200(k)(5), 5.235 (current through Oct. 15, 2026)
• In re Estate of Greenberg, 390 So. 2d 40 (Fla. 1980)
• Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004)
• Obergefell v. Hodges, 576 U.S. 644 (2015)
• The Florida Bar, Probate in Florida (consumer pamphlet, updated Jan. 2021)