Florida Trust & Probate Attorneys Blog
By Phillip B. Rarick, J.D, Miami Probate Attorney
Note: Special thanks to Illinois attorney John E. Fish for the following question, which is one of the most frequent questions we receive.
Executive Summary:
A non-resident of Florida can serve as Personal Representative for a Florida probate estate only if related by lineal blood or legal adoption to the decedent, or married to a lineal blood or legally adopted relation of the decedent.
Legal Analysis:
The answer is thoroughly outlined in Fla. Stat. §733.304. A non resident who is not domiciled in the state of Florida can not qualify as person representative unless:
- A legally adopted child or adoptive parent of the decedent;
- Related by lineal consanguinity to the decedent;
- A spouse, or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
- The spouse of a person who otherwise qualified under this section.
A Common Drafting Mistake:
We see this mistake made in a few wills every year: the decedent names a non-resident of Florida, such as a close friend, or an out of state attorney as their Personal Representative. These individuals would not qualify to serve as personal representative.
What Happens If The Person Named In The Will Cannot Serve?
If the will has an order of succession for Personal Representatives and there are other named Personal Representatives that do qualify under the terms of Fla. Stat. § 733.304 then the next in line individual can serve.
If there is no order of succession for Personal Representative in the will, or no one named qualifies, then we look to Fla. Stat. §733.301. Preference in appointment of Personal Representative would indicate that if those named in the will can not serve, and there is no surviving spouse, then the next eligible person in a testate estate would be a person selected by a majority in interest of the persons entitled to the estate. If no such majority is reached, then a devisee under the will can serve. If more than one devisee applies, the court may select the one best qualified. Keep in mind that the person selected by the majority or the devisee must be a Florida resident to qualify.
Intestate Appointment Preference
In intestate estates preference in appointment is as follows:
- The surviving spouse.
- The person selected by a majority in interest of the heirs.
- The heir nearest in degree. If more than one applies, the court may select the one best qualified. See Fla. Stat. §733.301
In most instances an individual who falls within one of these descriptions can be found and is qualified and willing to serve as Personal Representative. In the rare instance that an individual who falls within these categories can not be found, the court may appoint someone to serve, either in a testate or intestate estate, but the person the court appoints, if a non-resident, must be qualified to serve according to Fla. Stat. §733.304.
Special Note: All Trust companies incorporated under Florida law, and all state banking corporations, savings associations, national banking associations and federal savings and loan associations that are authorized and qualified to exercise fiduciary powers in Florida are qualified to act as personal representative. See Fla. Stat. §733.305.
Conclusion:
A non-resident of Florida can serve as Personal Representative only if related by lineal blood or legal adoption to the decedent, or married to a lineal blood or legally adopted relation of the decedent.
For more information contact attorney Phil Rarick, Miami probate attorney, with Rarick & Bowden Gold at (305) 556-5209 or info@raricklaw.com
Special Note
The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.