Who Is Not Allowed to Serve as the Personal Representative of a Florida Probate Estate?

One of the first legal questions that come up after a person dies is, “Who will serve as the Personal Representative of their Estate?” The answer to this question is important. The Personal Representative is the person who is legally responsible for gathering the Estate’s assets and distributing them to the deceased person’s heirs or beneficiaries. The Personal Representative is also the person who will defend the Estate against any lawsuits or challenges before the probate court.

If the deceased person–the decedent–left a Will, then that document will usually nominate a person to serve as the Personal Representative. In general, you can name anyone you wish as a Personal Representative. It need not be a spouse or even a family member. Some people even choose to name their attorney as their Personal Representative.

But there are some legal limits on who can serve. Florida law expressly forbids the following categories of persons from acting as Personal Representative of an Estate:

• Anyone who has been convicted of a felony;
• Anyone who has been judged to be mentally or physically unable to perform the role of a Personal Representative;
• Anyone who is under the age of 18; or
• Anyone who is not a Florida resident and not related to you by blood, marriage, or adoption.

It is also important to note that even if a person is legally qualified to serve as Personal Representative, they still have the right to decline the appointment. In other words, nobody can be forced to serve as a Personal Representative. They do not even have to give a reason for refusing to accept the appointment.

What Happens When a Nominated Executor is Disqualified or Declines the Appointment?

So let’s assume a decedent has a will but their preferred Personal Representative is unavailable or legally unable to serve, and there is no backup named. What happens then? Does the will become invalid?

No. If no Personal Representative qualifies under the Will–or if there was no Will to begin with–then Florida law establishes an “order of preference” for naming a Personal Representative. Basically, if two or more people want to be named Personal Representative, the person or persons with the highest priority in the order are typically named, provided they are not legally disqualified for the reasons explained above.

Under Florida law, when there is no qualified Personal Representative named in the will, then the person selected by a “majority in interest” of the beneficiaries under the Will (or the heirs of an Estate without a Will) has next priority. To put it in simple terms, let’s say you have a will leaving your Estate in equal shares to your three children. If your chosen Personal Representative fails to qualify and you named no alternate, then your children could nominate a Personal Representative by majority vote. If they fail to agree, then the probate court can select the “best qualified” among your children to serve.

Need Legal Advice from a Pompano Beach Estate Litigation Attorney?

Appointing a qualified Personal Representative is just the first step in administering a Florida probate estate. And while most estates are administered without incident, when a legal dispute does arise, it is important to work with an experienced Pompano Beach estate and trust litigation attorney who can provide skilled representation. Contact the offices of Mark R. Manceri, P.A., today to schedule a consultation with a member of our staff.

Sources:

flsenate.gov/Laws/Statutes/2011/733.301

flsenate.gov/Laws/Statutes/2011/733.303