Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By Carl Zacharia
In my 30 years as a Florida attorney, I have experienced disbelief in my clients when they learn that they are legally unable to serve as Personal Representative (PR) under a valid Will, even though they were named as such. Even though their loved one had executed a Will and named them as PR, due to specific requirements for PRs in Florida, they aren’t legally allowed to serve.
In the State of Florida, the person named as the Executor or PR must either be related by blood OR a resident of Florida. Consequently, if you name a friend or trusted advisor who resides in another state as your PR, he or she will not be permitted to serve. Section 733.304 of the Florida Statutes sets forth this law, however, there are exceptions. Your spouse is not related by blood but is permitted to be your PR even if he or she is not a Florida Resident. A child of your spouse, who is not your child, can also be your PR, even if they are not a Florida resident. However, the brother or sister of your spouse cannot be your PR.
So, what happens if your named PR cannot legally serve. First, we will look to any person named as an alternate PR in the Will. If one of them is legally eligible to act as PR, they may do so. If there is no one named who can act, then the heirs will typically hire an attorney who resides in Florida to be the PR.
In addition to the requirement of relationship by blood or Florida residency, the named PR in Florida also must be 18 or over, mentally and physically capable of serving, and not have a disqualifying criminal record.
The requirements for a Revocable Living Trust are different than a Will. Neither residency nor blood relationship is required of a Trust and the PR equivalent is the Trustee. Trusts are private and not filed with the Courts, and for this reason, along with probate being time consuming, many seek to ‘avoid probate’ by utilizing a trust. However, probate is a judicial process, and without oversight (as would be the case with a trust), it is much easier for a person with nefarious intentions to circumvent the estate plan in their favor and shortchange the others. If your heirs and family enjoy a harmonious relationship, a Trust may be a better tool in Florida.
If not, the creation of a probate estate may be a better choice.
There are other estate laws peculiar to Florida which create unintended consequences, including Homestead. Florida Homestead law is extremely complex and one of the most litigated areas in Florida estate law.
Consider the example of a couple on their second marriage who both live in Florida. They agree that his name alone would be on the deed to their Florida home and pass to his children, and her name would be on her prior home’s deed in another state and would pass to her children. The husband dies and his widow’s children decide that she needs additional money to pay for her needs. They file a demand for one half of the value of the Florida Homestead as hers. Can they do that?
The answer is very likely yes. Therefore, if you are in a second marriage and intend to have your home pass to your own children upon your death, you need to seek legal advice on how to accomplish this.
Many people get a Will or Trust online believing that they are saving money. However, the real value an attorney provides can be found in the questions and discussions they have with a client to identify potential problems and address them before any harm is done.
Nothing covered in this article constitutes an attorney-client relationship. This is a very complicated area of law and mistakes in attempting to plan on your own can be extremely costly.
Zacharia Brown
Estate Planning & Elder Law Attorneys
Bonita Springs
26811 South Bay Drive, Suite 260
Bonita Springs, FL 34134
(239) 345-4545
Lakewood Ranch
8470 Enterprise Circle, Suite 300
Lakewood Ranch, FL 34202
(239) 345-4545
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