Selecting a personal representative is one of the first steps in creating an estate plan. It is important to choose the right person to work with the Florida probate court, administer your estate and get your assets to your beneficiaries. Here are some tips for selecting a personal representative, and what you should tell them before you die.
What a Personal Representative Does for Your Estate
While you are alive, you get to make all the decisions about what happens to your assets. You can decide to spend them on your own needs and comforts, or pass them on to your loved ones. You don’t need any special authority because you are the one who owns the property.
After you pass away, your estate can’t act on its own, and the banks and companies you used to work with won’t automatically share your information with your next of kin. A personal representative is legally appointed by the Florida probate court to act on the estate’s behalf. Once appointed, the personal representative is the spokesperson for your estate, working with banks, realtors, creditors, and beneficiaries. They are responsible for paying off creditors and distributing your assets according to either your Will or Florida probate law.
In most cases, it is wise to select a personal representative who is a Florida resident. A person who lives in another state cannot qualify as a personal representative unless they are a(n):
- Direct blood-descendent
- Adopted child or parent
- Brother, sister, aunt, uncle, nephew or niece (or their blood-descendent)
- Qualifying spouse
Should Your Surviving Spouse be Your Personal Representative?
Your spouse is probably your closest confidant. He or she knows the most about your estate (often they are joint owners on much of your property), and about your wishes for your property after your death. This makes them a natural choice to serve as your personal representative. But will he or she be up to the challenge? Often, a spouse can be so overcome with grief in the days after their spouse’s death that they are unable to take the steps necessary to promptly record the Will and open the estate.
In a blended family, a surviving spouse may also struggle to be impartial between their own needs and the interests of half-children, step-children, and former in-laws you may have left assets to. If your spouse may be considering enforcing their elective share as a surviving spouse, rather than following the language of your Will, he or she may not be the best choice for personal representative.
What Happens if You Don’t Select a Personal Representative in a Will
Most Wills start by naming a series of intended personal representatives. However, if you die without a Will, or if no one you name is willing or able to assume the role, it will be up to your loved ones to open an estate administration case with the Florida probate court and notify any potential personal representatives according to priority preference. Unless one of those people objects, the judge will generally name the person who filed the petition as the estate’s personal representative. If you died with a valid Will, your loved ones can file that will with the Probate Court. The judge will follow Florida probate law to name your estate’s personal representative, turning to:
- The personal representative or successor personal representative named in your Will
- Someone selected by the majority of interested persons in your estate (generally your next of kin)
- One of the beneficiaries in the Will (the Court may select the best qualified among beneficiaries)
On the other hand, if you died “intestate” – without a Will – the Court will follow the following list in order to select your personal representative:
- Surviving Spouse
- Someone selected by the majority of the intestate heirs
- The heir of nearest degree (the next of kin. The Court may select the best qualified among people of the same degree)
However, the Florida probate court may not appoint:
- Someone who holds public office
- A court employee
- Anyone employed in any probate court
- A convicted felon
- Someone with mental or physical disabilities that prevent them from performing the duties of a personal representative
- A minor
- Certain out-of-state residents (explained above)
Factors for Choosing the Personal Representative of an Estate
If that list does not appeal to you, it is important to choose a personal representative as part of your estate plan. In doing so, work with your estate planning attorney to consider each candidate’s:
- Residency (and whether they will likely leave Florida before your death)
- Education and background
- Honesty and trustworthiness
- Relationship with important beneficiaries and family members
The last thing you want is for your beneficiaries to file a Will challenge to remove your personal representative. Avoid naming someone controversial to your family or a recent caregiver to avoid claims of undue influence.
What to Tell a Personal Representative While You are Alive
Being named as a personal representative should not come as a surprise. Remember that if you trust this person, they will likely be grieving your loss, too. You should talk to each person named as a personal representative in your Will ahead of time, to make sure they are willing to do the job. You might even give them each a copy of your Will so it can be filed quickly after your passing. In addition, it is a good idea to tell your personal representatives:
- Who your estate planning attorney was
- Where the original Will is kept
- Where they can find a list of your passwords and account numbers
- Anyone you intentionally excluded from the Will
Get Help Making Thoughtful Estate Planning Choices
Choosing the right person for the important job of serving as personal representative of your estate isn’t always easy. There are ability and personality factors to consider. Often the role requires a careful balance of skill and tact. At Harrison Estate Law, our estate planning attorneys know how to approach these issues with sensitivity. We will help you consider who you want to represent your estate’s interests after your death, and give you tools to talk to them about your plans. Contact us here or call 352-559-9828 to get help today.