As a premier estate planning law firm in Florida, we at Lulich & Attorneys often receive inquiries from out-of-state individuals looking to serve as personal representatives for a Florida decedent's estate. This topic is especially pertinent to the many families who are split across different states and for Snowbirds who have substantial connections to Florida but still reside primarily in other states.
Therefore, here we seek to expound on what duties a personal representative has and who is eligible to perform them as a non-Floridian.
The Duties of a Personal Representative: Florida Law and Statutes
The role of a personal representative (PR) in Florida, as mandated by the Florida Probate Code, is extensive and multifaceted. Upon appointment by the court, the PR assumes the responsibility of managing and settling the decedent's estate. Their duties range from identifying and gathering the decedent’s assets to paying valid claims (including debts and taxes) against the estate. They are also responsible for distributing the remaining assets to the beneficiaries according to the decedent's last will or, in the absence of a will, according to Florida's intestacy laws.
Throughout the process, the personal representative is required to communicate effectively with all interested parties and keep a detailed record of the estate's transactions. Furthermore, the PR must perform their duties in the best interest of the estate, adhering to the highest standards of fiduciary duty, which include duty of care, loyalty, and impartiality. Failure to adhere to these obligations may result in legal consequences, further emphasizing the importance of the personal representative role in estate administration.
Can Non-Floridians Be Personal Representatives for a Florida Estate?
Florida-domiciled residents should not consider appointing a non-Florida personal representative of their estate. It's generally best to appoint someone executor who lives in Florida, as being a personal representative means spending a lot of time collecting, accounting for, and distributing estate assets. Being a personal representative in Florida can also include working with local appraisers. The executor or administrator may need to file court-related paperwork or appear in court.
Florida’s laws on having a non-Florida personal representative
A non-Florida personal representative can qualify, via Florida Statute §733.304, if they are:
- A legally adopted child of the decedent
- A legally adopted parent of the decedent
- A relative related by lineal consanguinity
- A spouse
- A sister, brother, aunt, uncle, niece, or nephew of the decedent. Or someone related to such a person by lineal consanguinity.
- The spouse of someone on the above list
Lineal consanguinity is essentially the line of children or parents. The line includes the child, grandchild, parent, and grandparent of a decedent. Great-grandchildren and great-grandparents can also qualify; grand-nieces and grand-nephews don't qualify. Your Florida estate lawyer can advise you whether step-sisters, step-brothers, and half-siblings qualify.
A non-Florida personal representative can't qualify even if the decedent chose that person. The representative will be disqualified even if all the interested persons agree. Non-resident friends and organizations generally can't serve as personal representatives.
What happens if the personal representative can’t serve because of the Florida statutes
Normally, a will should designate alternative personal representatives. Ideally, one of these selected executors should be a Florida resident or meet one of the relationship tests. If the will doesn't appoint anyone who can serve, then Florida statute §733.301 controls the appointment of a personal representative. Florida law stipulates that:
- If there is a will and no qualifying personal representative – then the following people qualify:
- Someone has been chosen by a majority in interest of those persons entitled to a part of the estate
- A devisee (someone with an interest in the estate) if there is just one devisee
- A devisee is chosen by the court if there is more than one devisee
- If the decedent didn’t have a will (is intestate) – then the following appointments qualify:
- The surviving spouse
- Someone has been chosen by a majority in the interest of the heirs
- The heir nearest in the degree to the decedent. Otherwise, the best-qualified heir, as selected by the court
- A guardian of the property under certain conditions
If nobody applies or nobody qualifies, then the court can appoint a “capable” person. Then, a capable person must meet certain conditions. For example, the selectee can't work for the court.
The issue of the validity of a non-Florida personal representative appointment is quite common in Florida. Florida attracts many seniors from other states. Often, the senior's children live in New York, Vermont, or other locations. Travel time and costs from outside Florida to Florida can be quite expensive. So, seniors should review the legal issues and practical issues of out-of-state appointments. An experienced Florida estate planning lawyer will help you make the right decisions.
What happens when a personal representative is removed from their position?
Occasionally, situations may arise where a personal representative is removed from their position due to various reasons such as neglect of duty, mismanagement, or conflicts of interest. It could also be that a personal representative is removed due to becoming mentally or physically unable to exercise fiduciary powers or otherwise performing their duties in the probate process.
Florida law provides clear guidelines on what happens in such circumstances, especially when it comes to the assets still in the removed personal representative's possession. Typically, the court will appoint a remaining personal representative to carry on with the probate estate proceedings. However, the process of reacquiring assets from a removed personal representative can be complex and may require experienced legal counsel to navigate efficiently.
Contact an Experienced Florida Estate Planning Firm
If you have more questions about who can be a personal representative, or if you are legally permitted to do so, you should seek professional legal help. Our firm has been helping estate planning clients for over 30 years. Our motto is simple: to make your life simpler. For this reason, we offer Free Case Evaluations. Click here or call our Sebastian Office (772) 589-5500 or our Vero Beach Office (772) 774-7771.