Who will handle your matters after you have passed away? Here in Florida, a personal representative is in charge of handling the matters of your estate, regardless of whether you died with a will. If a person dies intestate (i.e., without a will, and therefore likely without a named personal representative), then a personal representative will be appointed by the court. Choosing a personal representative whom you trust should be an important consideration when drafting your will.
That may lead you to wonder, who can serve as a personal representative? And who does the state feel is preferable to serve as a personal representative? Florida Statutes have addressed these questions and have explained who is qualified to serve as a personal representative. Generally speaking, any person who is sui juris (meaning, “of one’s own right”) and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to serve as a personal representative.
Florida Statute § 733.301 lists the statutory preference for a personal representative in intestate and testate estates. For an intestate estate, the preference for appointment of a personal representative is as follows:
- the surviving spouse,
- the person selected by a majority in interest of the heirs, and
- the heir in nearest in degree.
However, persons who are not qualified to act as a personal representative are those who:
- Have been convicted of a felony;
- Are mentally and physically unable to perform the duties; or
- Are less than 18 years old.
Now you may ask yourself, what exactly are the duties of a personal representative? A personal representative is liable to any “interested person” for damage or loss resulting from a breach of a fiduciary duty to the decedent’s estate. An interested person is defined as any person who may reasonably be expected to be affected by the outcome of a particular proceeding involved. For example, if a person dies with a will, then an interested party will be the devisee(s) in the testate estate. If a person dies without a will, then an heir at law could be considered an interested party.
The duties and powers of a personal representative are outlined in Florida Statute § 733.602, which states in part:
A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.
It is important to have a qualified, trustworthy personal representative for your estate. If you or someone you know is interested in creating an estate plan, it is important to consult with a Florida attorney who is well versed in the specifics of Florida law. Please do not hesitate to contact the experienced team at Chepenik Trushin LLP, who is ready, willing, and able to help with all of your estate planning and probate needs.