"My question is does my wife's status as legal resident Florida, but
one who doesn't live there, make the will susceptible to being
overturned in court or jeopardise my wife's status as executor?"
Briefly, no. Given that she is directly related by blood (or legally
adopted), she does not have to be domiciled in the state of Florida to
act as a personal representative (executor) for her parents' estates.
Who Should You Choose as Your Executor and Trustee?
"In Florida, the technical name for an executor is a personal representative."
Fla. Stat. § 733.304
§ 733.304 Nonresidents.
A person who is not domiciled in the state cannot qualify as personal
representative unless the person is:
(1) A legally adopted child or adoptive parent of the decedent;
(2) Related by lineal consanguinity to the decedent;
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of
the decedent, or someone related by lineal consanguinity to any such
(4) The spouse of a person otherwise qualified under this section.
The 'Lectric Law Library's Lexicon On * Consanguinity *
"Lineal consanguinity is that relation which exists among persons,
where one is descended from the other, as between the son and the
father or the grandfather, and so upwards in a direct ascending line;
and between the father and the son or the grandson, and so downwards
in a direct descending line. Every generation in this direct course
makes a degree, computing either in the ascending or descending line.
This being the natural mode of computing the degrees of lineal
consanguinity, it has been adopted by the civil, the canon, and the
The Florida Bar
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
"The personal representative is the person, bank or trust company
appointed by the court to be in charge of the administration of the
estate. The generic term "personal representative" has replaced such
terms as "executor, executrix, administrator and administratrix."
The personal representative is directed by the court to administer the
estate pursuant to Florida law. The personal representative is
? Identify, gather, value and safeguard probate assets.
? Publish a "notice of administration" in a local newspaper, giving
notice of the administration of the
estate and of requirements to file claims and other papers
relating to the estate. Beginning January 1, 2002, this notice will be
called a "notice to creditors."
? Beginning January 1, 2002, serve a "notice of administration" on
specific persons, giving information about the estate administration
and giving notice of requirements to file any objections relating to
? Conduct a diligent search to locate "known or reasonably
ascertainable" creditors, and notify them of the time by which their
claims must be filed.
? Object to improper claims and defend suits brought on such claims.
? Pay valid claims.
? File tax returns.
? Pay taxes.
? Employ necessary professionals to assist.
? Pay administrative expenses.
? Distribute statutory amounts or assets to the surviving spouse or family.
? Distribute assets to beneficiaries.
? Close probate administration.
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
? The personal representative could be an individual, bank, or
trust company, subject to certain restrictions.
? An individual who is either a resident of Florida, or is a
spouse, sibling, parent, child, or certain other close relative, can
serve as personal representative.
? A trust company incorporated under the laws of Florida, or a bank
or savings and loan authorized and qualified to exercise fiduciary
powers in Florida, can serve as personal representative.
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
? If the decedent left a valid will, the designated personal
representative nominated in the will has preference to serve.
? If the decedent did not leave a valid will, the surviving spouse
has preference, with second preference to the person selected by a
majority in interest of the heirs.
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
In almost all instances the personal representative must be
represented by a Florida attorney. Many legal issues arise, even in
the simpliest estate administration.
The attorney for the personal representative advises the personal
representative on rights and duties under the law, and represents the
personal representative in estate proceedings. The attorney for the
personal representative is not the attorney for the beneficiaries.
A provision in a will mandating that a particular attorney or firm be
employed as attorney for the personal representative is not binding on
the personal representative."
Florida Wills, Trusts & Probate Questions and Answers
2. What is a personal representative or trustee?
"The personal representative is the person or company appointed to
administer the affairs of a decedent's estate. The antiquated terms
administrator and executor are no longer used in Florida; the court
appoints a "personal representative" whether the decedent died with a
will or without one.
The trustee is the person or company named to administer a trust. The
will and trust should name a close relative, bank, trust company, or
Florida resident as personal representative and trustee, and it should
list several alternates to serve in case any of those named
predeceases the testator. The will may name nonresidents only if they
are the testator's parent or lineal ascendant, child or lineal
descendant, spouse, brother, sister, uncle, aunt, nephew, or niece, or
the spouse, lineal ascendant or lineal descendant of any of the
While this list seems long, there are many relatives who cannot serve
as personal representatives in Florida unless they are Florida
residents. For example, if a married couple names the husband's
nonresident brother as personal representative of both their wills,
Florida law allows the brother to serve as personal representative for
the husband's estate but not for the wife's. Very few states still
have this restriction, so there have been comments by lawyers
suggesting that this law be changed. This restriction does not apply
to trusts: a nonresident may serve as trustee of a trust in Florida. "
I was glad to find this for you. If you have any questions, please
post a clarification request and wait for me to respond before
closing/rating my answer. Please note the disclaimer at the bottom of
this page which explains that GA is meant for information purposes
only and does not give legal advice.
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