Selecting Personal Representatives and Dealing with Out of State Family Members
Who qualifies as the Personal Representative? The Personal Representative can be selected in several ways. Where there is a valid Will, the a person is appointed in the Will to act as Personal Representative. The Court usually follows this provision, unless they have a felony conviction or if the person is not a family member and resides out of state. If there is not a Will, the Court follows a specific hierarchy in appointing the personal representative. First, the Court determines if there is a surviving Spouse; second choice would be the person selected by a majority of interest of the heirs; and then perhaps it would be the heir closest in degree to the decedent’s residence before death. If more than one heir qualifies, then the Court could be used to select the best candidate possible.Who can initiate probate proceedings? In Florida, either a creditor or beneficiary of an estate can commence a Probate proceeding. However, if the decedent left a Last Will & Testament (Will), then the Personal Representative (a/k/a Executor) named in that Will usually initiates the Probate. On the other hand, if there is not a Will, or if it cannot be located, then normally a close relative will initiate the probate process.
What happens if the children of the deceased parent do not live in Florida? Often children do not live in Florida where their deceased parent’s estate will proceed. The children will not necessarily be required to travel to Florida to handle the estate. Florida attorneys can handle probate matters throughout Florida no matter where the Personal Representative resides. And, there is often no requirement for the child to come to Florida, unless there is a contested matter involved in the estate. Florida probate judges often will accommodate out – of state parties to allow them to participate in hearings by telephone or waive appearance and allow their attorneys to represent them to avoid extensive travel. Each case must be reviewed separately to determine whether out of state travel will be necessary.