Estate Planning and Tax Lawyer Blog

When drafting your Will, one of the big decisions is who do you want to name as the Personal Representative of your estate. The job of a Personal Representative is a very important job as they are in charge with making sure the estate passes according to your wishes. However, in order to serve, the Personal Representative must fall within those allowed to serve under the Florida Statutes.

For this discussion, lets assume Bob made a Will back in 1960 and named his wife, Sally, and Acme Bank as the Co-Personal Representatives. Bob also has a brother that live in St. Augustine. In 1991, Acme Bank was acquired by XYZ Bank. Unfortunately, Sally, Bob’s surviving spouse, has recently been diagnosed with dementia. Now that we have the facts, lets review the rules that we will apply the facts to.

Florida Statute 733.301 lays out the preferences in naming a Personal Representative of an estate. If the estate is a testate estate (one with a Will), then the preferences are as follows:
1. The Personal Representative named in the Will.
2. Person selected by a majority in interest of the persons entitled to the estate.
3. A beneficiary of the Will.

If the estate is an intestate estate (one without a Will), then the preferences are as follows:
1. The surviving spouse.
2. A person selected by a majority of the heirs.
3. The heir nearest in degree (your closest relative).

In either situation, the court will appoint a capable person if no qualified Personal Representative exists.

To be able to be appointed as the Personal Representative based upon the above preferences, you must be competent at the time of the death of the decedent. However, under Florida Statute 733.303, you may not be appointed as the Personal Representative, even if you are one of the preferred appointees from above, if you (i) have been convicted of a felony; (ii) are mentally or physically unable to perform the duties or (iii) under the age of 18 years old.

Under Florida Statute 733.304, a nonresident of Florida will not qualify as a Personal Representative unless they are related to the decedent or the spouse of a relative of the decedent.

If you name a bank or trust company to serve as the Personal Representative of the estate, they must be either incorporated under the law of Florida or licensed to transact business in the State of Florida pursuant to the rules in Florida Statute 733.305. This includes any banks who may have purchased the entity you have named in your Will.

Finally, if you are named as the Personal Representative but after being named, you know or should have known that you are not qualified to serve or no longer qualified to serve, then you must promptly file and serve a notice setting forth the reasons why you cannot serve. Failure to file the notice makes you personally liable for all costs and attorney’s fees incurred in any removal proceeding.

So in Bob’s situation above, he named Sally and Acme Bank to serve as the Personal Representatives of his Will. Under Florida law, Sally, having been recently diagnosed with dementia, is not able to serve under Florida law due to her incompetency. Acme Bank no longer exists because it was bought by XYZ Bank in 1991. However, XYZ Bank is no longer doing business in Florida as of 2002 and, therefore, cannot serve as the Personal Representative of Bob’s estate. So all the persons/entities named in Bob’s Will are no longer available. However, Bob’s brother, who lives in St. Augustine, also happens to be the beneficiary of Bob’s estate. Under Florida Statute 733.301, Bob may petition the court to serve as the Personal Representative and the court will most likely appoint him since he qualifies as a Personal Representative.

If you think this scenario is far fetched, it is not. I am currently probating an estate with the exact same set of circumstances!