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. Being a personal representative means spending a lot of time in Florida. This includes collecting, accounting for, and distributing the assets. It can include working with local appraisers. The executor or administrator may need to appear in the Florida court. It includes filing papers with the Florida court. It may even require an appearance 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, 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 parties agree. Non-resident friends and organizations generally can’t serve as a personal representative.
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.
- If there are a will and no qualifying personal representative – then the following people qualify:
- Someone has 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 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.
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.