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Appointing an Ancillary Personal Representative - the Steps and Criteria

Under the Florida Probate Code, Florida law requires that, at the time of the decedent’s death, a personal representative be at least 18 years of age and in the majority of cases, A Florida resident. (§§ 733.302 and 733.304, Fla. Stat.) However, under certain occasions, a non-resident family members can act as personal representative (§ 733.304, Fla. Stat.).

An out-of-state attorney drafting a will for a non-resident of Florida with assets in Florida must consider the identity of the personal representative and whether they qualify to act as such in Florida. Generally, we recommend contacting us to review this language and make sure it meets Florida requirements.

If the designated personal representatives is not qualified to act in Florida under Florida statute, it is wise for counsel to include an appointment of a personal representative explicitly designated to administer the Florida property.

Ancillary Personal Representative of Testate Estate

If the individual meets the minimum requirements to qualify as the ancillary personal representative, the order of appointment for ancillary personal representatives will be either: (§ 734.102(1), Fla. Stat.)

  • Personal representative named in the decedent’s will specifically designated to administer the decedent’s Florida property.

  • Foreign personal representative of the decedent’s estate.

  • Alternate or successor foreign personal representative named in the decedent’s will.

  • Personal representative selected by those entitled to a majority interest of the Florida property.

Ancillary Personal Representative of Intestate Estate

If the non-resident personal representative of an intestate estate does not qualify to act as the personal representative in Florida, Florida Statutes state the order of preference for the appointment of an ancillary personal representative which is in order:

  • Surviving spouse.

  • The person selected by the majority of interested heirs.

  • The heir nearest in relation or, if more than just one, the best qualified hear nearest in relation.

  • An individual appointed by the probate court in the county where the assets are located.

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