Who Can Act as a Personal Representative?

Wed, Aug 10, 2011

General Legal Issues, Probate

A personal representative is needed for probate cases in the state of Florida. This personal representative assumes control of the deceased person’s property and handles most aspects of the person’s estate. The Florida State Statutes details its laws of probate in Title XLII (Estates and Trusts). Chapter 733, Part III discusses the preferences for and qualifications of a personal representative. A person who dies with a will (testate) usually will have chosen an executor and that person is the personal representative. If the decedent has passed away without a will (intestate), then a personal representative needs to be chosen. A personal representative can be an individual, a trust company, or a financial institution.

Individuals.  Almost anyone who is at least 18 years old and a resident of Florida when the decedent dies can be a personal representative in a probate case. Some noted exceptions include someone who has been convicted of a felony or is incapable of service for mental or physical reasons. Exceptions to the Florida resident rule are family members that are a child, spouse, brother, sister, uncle, aunt, nephew, or niece. Other candidates include someone related by lineal consanguinity to the decedent’s family. (Lineal consanguinity is a familial relationship such as father to son.) Once the court determines the requirements have been met, they give their agreement.

In addition, there are some rules regarding personal representatives who die or should be disqualified from the position while the probate case is active. Should the personal representative chosen for the case die, the court will choose a new one. The responsibility does not pass on automatically to anyone, including anyone involved in the representative’s probate case. In addition, a personal representative is required to alert the court when they become aware that they should not be a personal representative, or if they should have known all along that they were not qualified for the position for any reason.

Trust Companies or Financial Institutions.  There are trust companies that exist to handle affairs of this type. They will act in the same ways as an individual. Financial institutions such as state and national banking associations and corporations can handle these cases as well. In reference to succession of personal representatives though, the rules for companies or institutions differ. Usually the position of personal representative passes through mergers and transfers unless a will states otherwise.

Both individuals and banks are required to be represented by an attorney when they act as a personal representative (unless they are an attorney themselves or are the only interested party). SmithLaw has helped many personal representatives with their role.


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