The Appointment of a Personal Representative: Making Sure You Get “Who” You Want

It is a new year, and resolutions have been made, carried out – and even broken! It is a popular time for planning, which makes it a great time to be sure that your estate plan and affairs are in order. If you have not done so, it is a great time to either create or revise your last will and testament (“Will”), which is a key necessity for any estate plan. One of the major reasons for having a Will in place, is that it allows you to express your last wishes regarding your property.

Another major reason to have a Will is that it allows you to determine and appoint a person that you trust to carry out the administration of your estate as your personal representative (also called “executor/trix”). Upon your death, your personal representative will be responsible for protecting the property of your estate, paying the debts and taxes that are owed, and transferring the remaining property to those who are entitled to it. The personal representative will have a great deal of responsibility, so great care and consideration should be given to the decision of who will serve. A common misconception in Will drafting by the testator, the person who has made a Will, is that the named personal representative will automatically serve. While this is often the case, a personal representative has to be “appointed” by the probate court, and not everyone who is named as a personal representative in a Will is qualified serve.

There are a few restrictions on who is qualified to serve as a personal representative. Under Florida law, to qualify to serve as a personal representative, one must be:

–          at least be 18 years of age;

–          mentally or physically able to perform the duty;

–          free from any conviction of a felony; and

–          a resident of the state of Florida at the time of the death of the decedent or – in the case of a nonresident – be the decedent’s spouse, legally adopted child or parent; blood relative, or spouse or blood relative of such person who is qualified to serve as personal representative.

Subject to certain restrictions, corporations, banks, trust companies, and savings and loan associations may also serve as a personal representative.

If the person named as the personal representative in a Will does not meet these qualifications, then the court will appoint a personal representative in accordance with Florida law. Many times, this can lead to undesirable appointments. To better ensure that your desired personal representative is appointed in accordance with your Will, we strongly encourage you to consult an experienced estate planning attorney.

 

Sincerely,

Berlin Patten Ebling, PLLC

Article Authored by Pamela Hernandez, Esq.  phernandez@berlinpatten.com

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

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