Who Qualifies as Your Personal Representative?

“James,” a widower, sat in my office as we prepared his will together. “My sons don’t have the time or expertise to serve as my executor, so I’d like to name my friend, Oliver, in that role.”

“So Oliver isn’t related to you?” I asked.

“No,” James replied.

“Where does Oliver live?” I asked.

“In Atlanta.” James said.

“Unfortunately he won’t qualify to serve under Florida law,” I advised. You can name a friend, but they must be residents of Florida at the time of your death in order to qualify as your personal representative, which is what we call an executor here.”

“What about my nephew Hector?” James asked. “Does he have to be a resident of Florida to qualify?”

“No,” I answered. “A nephew will qualify no matter where he lives.”

“Even if he lives in Costa Rica?”

“Yes, even if he lives in Costa Rica,” I laughed. “Is that where Hector lives?”

“He enjoys it there, and he got in some trouble here so that’s why he moved there.” James added.

“What kind of trouble?” I asked.

“It’s kind of a long story, and he’s a good kid, but he has a record now.”

“If he’s a convicted felon he won’t qualify as your personal representative,” I said.

“This is getting harder than I thought,” James said, rubbing his chin.

Florida law is fairly open with who can serve as the personal representative of your probate estate under your will. Any Florida resident will qualify, no matter the relationship to you. Certain relatives will always qualify so long as they haven’t been convicted of a felony or are mentally or physically unable to perform the duties.

Those relatives include any child or legally adopted child, someone related by lineal consanguinity to you, a spouse, or a brother, sister, uncle, aunt, nephew or niece, or anyone related by lineal consanguinity to any such person. Moreover, a spouse of a person who would otherwise qualify may also serve as a personal representative. Consanguinity means “blood relation” and is defined as the quality of being descended from the same ancestor as another person.

So under Florida law your nephew’s spouse who lives in Singapore will qualify as your personal representative but your best friend from Ohio will not.

A personal representative has broad powers relating to the assets of the estate. They can sell homes, liquidate investments, and change the bank and investment accounts into their name as the personal representative of the estate during the course of the administration. This makes it easy to abscond with the assets, leaving the decedent’s creditors, beneficiaries and taxing authorities holding the proverbial empty bag.

So the theory behind Florida law is that a Florida resident would be subject to the jurisdiction of the Florida courts, and if they were to commit any fraud they would have to answer to the court. As far as relatives, I suppose the theory is that a decedent has a right to name a family member (who is related either by blood or marriage) to serve in this important role.

Most wills indicate that the “personal representative shall serve without bond.” Probate courts, however, are free to impose a bond on personal representatives, and frequently do. The size of the bond is usually relative to the size of the estate under administration. A $200,000 bond may cost the estate $300 or so annually, but this bond protects the creditors and beneficiaries from a dishonest personal representative.

When you move from another state to Florida, this is another reason to update your legal documents. The parties you may have named in your former home state may not qualify to serve here.

 The Sheppard Law Firm has its main in Fort Myers and also in Naples by appointment.

© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.

2018-03-09T11:42:03+00:00

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