One of the most important factors involved in the Florida probate process is the appointment of a personal representative.
As the term suggests, a personal representative is granted authority by a probate court to act on the decedent’s estate behalf and perform several tasks to administer the distribution of the assets subject to probate.
In this article, you will find out whether a non-Florida resident may be appointed as a personal representative within state jurisdiction.
Can a Non-Florida Resident be a Personal Representative? – The Verdict
Under a few circumstances, Florida law permits a non-resident of Florida to serve as a personal representative to execute an estate subject to probate within the state. However, it does not apply to all cases.
It is worth noting that many individuals commit this mistake when drafting a will, either by naming a close friend living in another state or an out-of-state attorney as their personal representative. Ultimately, these individuals will not qualify to fulfill the role.
Florida Statutes §733.304 provide that “a person who is not domiciled in the state cannot qualify as personal representative unless the person is:
- 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 otherwise qualified under the same statute”
What Happens If the Individual Designated in the Last Will Does Meet the Statutory Requirements?
Florida Statutes §733.303 (1) provides that “a person is not qualified to act as a personal representative if the person:
- Has been convicted of a felony
- Has been convicted in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult (as defined by Fla. Stat. §825.101)
- Is mentally or physically unable to perform the duties
- Is under the age of 18 years”
Hence, if the person appointed as the decedent’s personal representative neither meets the basic requirements nor the nonresident requirements, the court adjudicating the case will appoint a qualified person based on a statutory order of preference.
Accordingly, Florida Statutes §733.301 provides the specific order of preference that applies for testate estates (when there is a last will) or intestate estates (no last will). The statutory order of preference in testate estates is:
- The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will
- The person selected by a majority in interest of the persons entitled to the estate
- A devisee (beneficiary) under the will (if more than one devisee applies, the court may select the one best qualified)
If the decedent died without a last will and his/her estate is subject to probate, the distribution of the assets will be done according to Florida intestacy laws. As provided by Florida Statutes §733.301 (1)(b), the order of preference in intestate estates is:
- The surviving spouse
- The person selected by a majority in interest of the heirs, or
- The heir nearest in degree (of kinship)
In case more than one of the decedent’s blood relatives or heirs applies to serve as a personal representative, the court adjudicating the case will select the person they consider to be better suited to satisfy the role.
Probate Does Not Need to be an Overwhelming Experience – Immediately Contact Your Florida Probate Lawyer
In Florida, a personal representative is legally required to hire a licensed attorney for probate. Waste no time – call Attorneys Romy B. Jurado and Diana L. Collazos at (305) 921-0976 or email [email protected] to schedule a consultation.
