In fact, not only is it permissible for a personal representative to be a beneficiary of a will, but this is perhaps the most common scenario. When preparing an estate plan, most people choose a close loved one to serve as their personal representative. For example, it is fairly typical for spouses to name each other as their personal representatives, and then to name someone else (perhaps a child or sibling) as their contingent (or “backup”) personal representative should they both die at the same time or should one spouse otherwise be unavailable to serve in the role.
Appointment of the Personal Representative: When the Will Does Not Control
If the will does not designate a personal representative, or if a decedent’s chosen personal representative is unavailable or unwilling to serve, then a personal representative will need to be appointed by the probate court. Under Florida law, the considerations that factor into the court’s choice of a personal representative do not include any individual’s designation as a beneficiary of the decedent’s will. For testate estates (those governed by a will), the order of preference is:
- “The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.”
- “The person selected by a majority in interest of the persons entitled to the estate.”
- “A devisee under the will. If more than one devisee applies, the court may select the one best qualified.”
For intestate estates (those not governed b a will), the order of preference is:
- “The surviving spouse.”
- “The person selected by a majority in interest of the heirs.”
- “The heir nearest in degree [of familial relationship]. If more than one applies, the court may select the one best qualified.”
“Devisee” is the formal legal term for the beneficiary of a will. So, as you can see, not only is it permissible for a personal representative to be a beneficiary of a will, but Florida law specifically provides for the selection of a beneficiary as personal representative in situations where the choice of personal representative is not governed by the decedent’s will.
Limitations on Who Can Serve as a Personal Representative in Florida
While there is no limitation on a beneficiary serving as a personal representative in Florida, there are certain other limitations on who can be appointed as the personal representative of a decedent’s estate. In order for an individual to be appointed as a personal representative, he or she must be (i) at least 18 years old; (ii) mentally and physically capable of performing the duties of a personal representative, and (iii) either:
- A Florida resident, or
- A spouse, parent, child, sibling, or other close relative of the decedent.
Florida law also prohibits anyone with a felony conviction from serving as a personal representative. As long as these basic criteria are satisfied, then anyone can potentially be appointed as a decedent’s personal representative – and, again, this is true regardless of whether they are also named as a beneficiary in the decedent’s will.
Important Considerations for Estate Planning and Probate Administration
1. Appointing a Personal Representative in Your Will
When preparing an estate plan, it is important to give due consideration to your choice of personal representative. You will want to choose someone who is comfortable serving in the role, and this generally means speaking with them before finalizing your will. Due to the practicalities of dealing with probate, it will often make sense to choose someone who lives in Florida – though this is by no means the only factor to consider. Your personal representative should be capable of addressing the financial and legal issues involved in administering your estate (with the help of an attorney, as necessary), and he or she should be equally capable of addressing any issues that may arise during the probate process.
While most people choose a family member to serve as their personal representative, there are other options available. In some circumstances, it may make sense to choose a bank or trust company to serve as your personal representative.
2. Seeking Appointment as a Personal Representative (or Challenging Someone Else’s Appointment)
If you recently lost a loved one and he or she did not appoint a personal representative or his or her chosen personal representative is unavailable or unwilling to serve, then you will need to seek appointment in the probate court. There is a specific process for doing so, and you will need to address the relevant order of priority listed above. In many circumstances, family members will come together and agree on the person to be appointed as their loved one’s personal representative. However, if this is not feasible or if you need to challenge someone else’s appointment as personal representative, then it may be necessary to take formal legal action in court.
3. Serving as Personal Representative during Probate
When serving as a personal representative, it is imperative to be aware of your duties and all of the various rules and restrictions that apply. If you have also been named as a beneficiary in your loved one’s will, one issue of particular importance will be how and when you choose to distribute assets to yourself. As personal representative, your fiduciary duty prevents you from giving yourself any preferential treatment or unfair advantage, and all decisions regarding the distribution of the estate assets must be made without regard to your personal status as a named beneficiary.
Estate Planning and Probate lawyer in Jacksonville, FL
Our attorney provide comprehensive estate planning services and experienced legal representation for personal representatives in and around Jacksonville, FL. If you have questions and would like to speak with an attorney, we encourage you to call 904-288-4144 or contact us online for a confidential initial consultation.