If a Person Lives Out of the Area, Can They Still Be Named an Executor?
By: Barry E. Haimo, Esq.
May 18, 2015
BARRY HAIMO: A person can be named executor or a personal representative in Florida under a will. It generally requires you to live in the same state. However, there are exceptions for certain familial relationships that would enable a person to, in fact, act or serve as personal representative under the will.
Regardless of whether you have a will or not, upon your death your estate will go through probate. Probate is the legal process through which a deceased person’s affairs are formally settled.
During probate, your assets will be identified and inventoried, outstanding debts will be paid, and any remaining assets will be distributed to your beneficiaries. And one of the first steps in the probate process will be the court appointing a personal representative or executor of your estate.
The personal representative will be in charge of the administration of your estate. Their duties include:
- Gathering and valuing the probate assets
- Publishing a formal “Notice to Creditors”, informing creditors of the pending estate
- Serving a “Notice of Administration”, informing beneficiaries of the pending estate
- Making reasonable efforts to locate “known or reasonably ascertainable” creditors for which to serve formal notice
- Pay valid claims and object to invalid claims
- Pay taxes and file tax returns
- Hire attorneys, accountants, appraisers, and advisors to assist in probate administration
- Distribute assets to beneficiaries
- Close the probate estate
With all of the responsibility a personal representative has, it’s important to understand who can be a personal representative, who the court will appoint, and how you can choose your personal representative.
Who Can Be a Personal Representative?
A personal representative can be an individual person, bank, or trust company, but there are other requirements as well. They must generally be a resident of the state of Florida and:
- Be at least 18 years old;
- Be mentally and physically capable of performing their duties; and
- Not be a convicted felon.
Typically, the priority of appointment is someone named in the will, or someone taking under the will if nobody is appointed. Here is a link to the statute on point in Florida.
For a nonresident to qualify as personal representative they must be a spouse, child (including adopted child), parent (including adoptive parent), sibling, aunt, uncle or other close relative. A spouse of any nonresident that would be qualified to be serve as personal representative is also eligible to serve as a personal representative.
So, yes, a personal representative or executor can live out of the area, but in order for that to happen, the person must be closely related to the decedent. This means that your friend in Georgia most likely won’t qualify to be your personal representative, but your sister in Georgia could do the job. Even if they do qualify, most judges would require a bond be paid before appointing them.
If the deceased person doesn’t have a will, the judge will usually appoint the surviving spouse as the personal representative. In the case that there isn’t a spouse or the spouse doesn’t want to be the personal representative, the court will choose the person a majority of the heirs select. If the heirs cannot agree, the heir closest in relationship to the decedent will be selected or if their is more than one heir the judge will select the most qualified heir after conducting a hearing.
That being said, if the decedent has a valid will, the judge will appoint the personal representative named in the will – as long as that person is qualified to be the personal representative. So if you would like to be able to choose your own personal representative, it’s important to create a will and name a responsible, trustworthy person to administer your estate.
Barry E. Haimo, Esq.
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