In Florida, choosing a personal representative (commonly called “executor”) to be in charge of your estate is a very personal decision. While you might think you have the final word in your will, there are certain criteria each personal representative must meet in order to be appointed. Your decision is secondary to the Florida Statutes.
Under Florida Statute Section 733.303, a person is not qualified to act as personal representative if: (1) they have been convicted of a felony; (2) is mentally or physically unable to perform the duties; and/or (3) is under the age of 18 years. This restriction on who can serve as personal representative supersedes your decision to name your spouse, family members, or any other person under your will.
Once you do name a qualified person as your personal representative, they have the right to decline. Since they have the right to decline that role, it is wise to tell them of your intentions ahead of time. Even if they agree to serve, it is important to select a successor personal representative in your will. Your first choice may later become unable or unwilling to probate the estate.
More than one person can be named as co-personal representative. In fact, multiple people can be named to serve together. You may think choosing two or more to administer your probate estate is an ideal way of avoiding an appearance of having a “favorite”. This is especially true when you are trying to decide between your children. However, selecting multiple individuals to serve together can be cumbersome and cause delays in decision making. What has been effective is finding some objective standard to select a name. For example, choosing the oldest or the one who is the closest one in proximity to you may make sense to the family. Explaining your decision to your family may be beneficial if you think this will avoid any later feeling of resentment.
The personal representative has the right to be paid 3% of the estate. Before they accept this fee, they should know that it will be treated as taxable income. If they are the beneficiary, they will pay income tax on what they would have inherited tax-free.
When the time comes for the individual to step forward and be appointed personal representative, they must be represented by an attorney (except where the assets do not exceed funeral and last medical bills). The personal representative can select an attorney of their choice, but it more efficient and effective to choose one whose focus of practice is in probate law.
Remember to consider your choice for personal representative (executor) carefully to prevent the state from rejecting your choice.
Rose Marie K. Preddy, Esquire, owns the Preddy Law Firm, P.A. in Jacksonville, Florida and has over 20 years of legal experience representing families in estate planning, planning for incapacity, guardianship, and probate. Please do not hesitate to contact Rose Marie with any questions.