No Will? Who is to be the Personal Representative?
October 26, 2022
In an intestate estate – i.e., an estate in which the Decedent died without having a will – the state of Florida’s Probate Code statutes dictate how the Decedent’s assets will be distributed.
Assuming the Decedent was married, the surviving spouse typically is the one appointed as the personal representative. Next in line would be any children of the Decedent – if there are multiple children, sometimes they will serve jointly as co-personal representatives, and sometimes one will serve with the signed consents of their siblings. See Fla. Stat. 733.301. If there are no surviving family members, the court may consider another relative, a close friend, or sometimes a lawyer or accountant.
Persons not qualified to serve as Personal Representative are those outlined in Fla. Stat. 733.303. A person cannot serve as Personal Representative if that person:
(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
(c) Is under the age of 18 years.
The general powers of a personal representative are set forth in Fla. Stat. 733.608. Practically speaking, a personal representative’s job responsibilities and powers are the same whether in an intestate or testate (with a will) estate. Some of these highlights that deal with the probate estate’s administration include notifying creditors of the Decedent’s death, filing tax returns, inventorying (listing) the Decedent’s assets and liabilities, paying debts of the Decedent, and of course, distributing assets to the estate’s beneficiaries after all the above have been accomplished.
So, if you want the job of serving as Personal Representative – you are also required to have counsel (Fla. Probate Rule. 5.030) who will prepare and file a petition in the county where the Decedent resided and the other requisite probate opening documents. After that filing in the probate court, the court will decide. For all of these appointment matters, it is imperative for you to speak with your trusted probate lawyer.