Common Estate Planning Mistake: Naming as Personal Representative a Nonresident Not Related by Blood or Marriage

When doing basic estate planning, one of the most important instruments to set up is a Last Will and Testament. This allows you to designate beneficiaries, i.e. who will receive your estate assets. The Will also designates the Personal Representative, i.e. who will be in charge of your probate estate. [Note: in some states, this person is referred to as an "Executor" or an "Administrator" but regardless of the name, they are essentially the same position.]

So in designating a Personal Representative, are there any limits on who you can select? In simple terms, you can designate anyone you wish so long as they are "qualified." This means several things. The person must be over 18 years of age, must not be a convicted felon, and must be mentally and physically capable of performing their duties. In addition, there is a residency requirement which applies in instances where the person you name is not related to you by blood or marriage.

Section 733.304, Fla. Stat. provides that a person who is not domiciled in Florida (i.e. not a resident) cannot qualify as Personal Representative of a Florida estate unless the person is:

(1) A legally adopted child or adoptive parent of the decedent;

(2) Related by lineal consanguinity to the decedent-i.e. related by blood;

(3) 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

(4) The spouse of a person otherwise qualified under this section-i.e. related by marriage.

If the person nominated as Personal Representative does not fall into one of the four categories listed above, then they do not qualify to serve. This is true even if all interested parties are in agreement-the person simply is not eligible.

In today's day and age of "do-it-yourself" legal documents, this is a common estate planning mistake people make. They use a Will form from some on-line site but they don't get the sound advice which an estate planning lawyer can provide. So they name someone who doesn't qualify and when they die, that becomes a problem because they've selected someone who cannot be appointed as Personal Representative.

A recent real-life example we encountered involved a person--who we'll call "Annie"--that used a website to create a Will and named her long-time friend and former college roommate "Suzie" to serve as Personal Representative. However, Suzie lived in Texas and Annie lived in Florida and they were not related by blood or marriage. So when Annie died, Suzie contacted us about opening Annie's estate and getting Suzie appointed as Personal Representative. The unfortunate news for Suzie was that she did not qualify as Personal Representative in Florida and therefore she could not be appointed.

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