Any legally competent person who was a resident of Florida at the time of the decedent’s death is qualified to act as the estate’s personal representative in a Florida probate proceeding. This residency requirement is waived for family members and most in-laws.
In addition to the residency requirement, a prospective personal representative may not have a felony conviction, must be at least 18 years old, and must be mentally and physically able to perform the duties required of him or her.
Ideally, the decedent will have left a Last Will and Testament specifying his or her own preference as to a personal representative. If so, Florida law gives a preference to the person designated in the Will as personal representative.
When there is no Will, the Florida Probate Code lays out an order of preference for determining who will act as the personal representative of an estate. The preferred personal representative is the surviving spouse. The second choice is a person selected by a majority in interest of the heirs, and the third choice is the heir nearest in degree to the decedent.
If more than one of these preferences apply, the Florida Probate Code gives the probate court the ability to choose the personal representative. This could happen, for example, if there is no surviving spouse, and the person selected by a majority of the heirs is different from the heir nearest in degree.
If no one applies to be the personal representative of an estate, the probate court “shall appoint a capable person.” The person can be anyone of the court’s choosing, except people employed by the court.
After a personal representative is selected and the estate is opened, Letters of Administration are issued to the personal representative. These Letters can be revoked, and new Letters granted, if a “preferred” personal representative steps forward that has not already been served with formal notice.
Letters can also be revoked, and new Letters granted, if a Will is later found that names a personal representative and that Will is admitted to probate.