Can I Choose a Non-Resident Executor (Personal Representative) for My Estate?
We have discussed what an executor (known as “personal representative” in Florida) is, who can be appointed as one, and whether/how they can be removed. Personal representatives can be selected by those setting up their estate plans or by the judge to take charge of the administration of a decedent’s estate. They identify, organize, and safeguard the decedent’s assets, provide notice to creditors, pay any claims, defend any lawsuits, address any tax issues, handle any and all professionals and expenses associated with administering the estate, distribute assets to the decedent’s beneficiaries and survivors, and close the probate estate.
As attorneys who practice in probate and estate planning here in Florida, one of the most common topics we discuss with clients is the use of a trust versus a probate estate. In weighing the pros and cons, a number of clients bring up the fact (and concern) that they would like to appoint one of their children as their personal representative, but that child lives out of state, which they have concerns about. The reality of today is that many children end up having to move out of state for various reasons, such as career opportunities. In general, appointing a nonresident as a personal representative is not an issue, nor is it that complicated. However, for reasons we will discuss below, it is even less complicated when dealing with the trust.
The Law in Florida
In order for someone to serve as a personal representative in Florida, they must be at least 18 years old, never convicted of a felony, and not deemed incapacitated by the court. In addition, in Florida, if you wish to appoint a nonresident as your personal representative, they must be related to you by adoption, blood, or marriage (i.e. your child, parent, grandchild, or any other relative that is related by blood, otherwise known as “lineal consanguinity,” or a relative of someone otherwise qualified). In addition, if you would rather designate a bank or other company, they must be authorized to act as a fiduciary in Florida.
It is also worth noting that non-residents are sometimes more likely to have to post a probate bond. This bond acts as an insurance policy guaranteeing to reimburse the estate. If the personal representative is a resident, courts are more likely to waive the requirement to post a bond.
The Benefits of a Trust
However, it is also important to note that trusts, in general, carry few requirements for personal representatives because the courts are fairly uninvolved. Not only is there no bond requirement, but settlers can choose anyone they want to serve as a trustee.
Contact Our Florida Probate & Estate Planning Attorneys to Find Out More
If you live in Florida and have questions about probate, estate planning, and/or personal representatives, contact our experienced Orlando estate planning attorneys at Gierach and Gierach, P.A. today to find out how we can help.