Written by attorney Donald Michael Lins

Selecting a Personal Representative in Florida

In Florida, the person who is authorized to oversee and act on behalf of the estate is called the “Personal Representative." In other states, this person is called an “Executor" or an “Administrator." While the Will may designate the Personal Representative, the probate court is the one who actually makes the formal appointment. In other words, even though a person is designated as Personal Representative in the Will, that person is powerless to act for the estate until the probate court enters an order appointing them.

In Florida, there are restrictions on who can serve as Personal Representative and therefore it is important to have an experienced estate planning attorney assist you in selecting that person. As a general matter, it may help to understand that in order to serve as a Personal Representative, the person must be over age 18, must be competent, and must be a resident of Florida if they are not related to the decedent by blood or as the spouse of someone related by blood. By way of example, if a person appoints their adult child, a sibling, or parent, there is no problem, even if the person is not a Florida resident. However, if they appoint a friend who is not a Florida resident, the person does not qualify and the court cannot appoint that person.

In choosing a Personal Representative, one should consider persons who are trustworthy, and, if possible, who are experienced in handling financial and property matters. Much of what must be done in administering an estate is done by the law firm handling the probate. As a result, the fact that a Personal Representative is not “local’ to where the decedent resides does not rule them out as a candidate. Nonetheless, the person should be of an age and health that are not likely to pose a problem in the future. For example, a person should probably not name someone who is very frail or elderly since that person may not be around to administer the estate.

In naming a Personal Representative, most experienced practitioners recommend naming a primary and at least one “back-up" or alternate. In fact, you can name as many alternates as you choose. You can also name Co-Personal Representatives who act together in administering the estate. This is a good way to make the appointment when you have in mind persons with differing skills, experience, etc. For example, if a person has two children and one is local and therefore easily accessible to the probate court and another child is skilled in financial matters, they can be appointed to serve together and thereby get the benefit of what each person has to offer.

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