Can an Out-of-State Person Serve as Personal Representative of a Florida Estate?

Often, yes. Florida residents may generally serve if they are otherwise qualified. A person domiciled outside Florida may serve only if the person meets one of the statutory relationship tests. A will's nomination alone does not make an otherwise unqualified nonresident eligible.

The residency rule

A person who is sui juris and a Florida resident when the decedent dies may qualify to serve as personal representative, subject to the statutory disqualifications. Fla. Stat. § 733.302.

A person domiciled outside Florida may qualify only if the person is:

• The decedent's legally adopted child or adoptive parent;
• Related to the decedent by lineal consanguinity, such as a parent, grandparent, child, or grandchild;
• The decedent's spouse, brother, sister, uncle, aunt, nephew, or niece, or someone related by lineal consanguinity to any of those relatives; or
• The spouse of a person otherwise qualified under this section.

Fla. Stat. § 733.304. Thus, an adult child, sibling, niece or nephew, grandchild, or certain spouses of these relatives may serve if otherwise qualified. The legal test is domicile and relationship, not simply where someone happens to live.

Who cannot serve

A nonresident who does not meet one of the statutory relationship tests cannot serve simply because the will names that person. A friend, business partner, neighbor, accountant, or lawyer who is not a qualifying relative is not eligible on that basis alone. Certain trust companies, banks, and other qualified corporate fiduciaries may serve under separate statutory rules. Fla. Stat. § 733.305.

Other disqualifications apply to residents and nonresidents alike. A person is not qualified if the person is under 18, has been convicted of a felony or of abuse, neglect, or exploitation of an elderly person or disabled adult, or is mentally or physically unable to perform the duties. A nonresident must also meet section 733.304. Fla. Stat. § 733.303.

What happens if the person named in the will cannot serve

The will's nomination does not override Florida's qualification rules. If the nominee is not qualified, letters are granted under the statutory order of preference. In a testate estate, the next preference is a person selected by a majority in interest of the persons entitled to the estate, followed by a devisee under the will. If more than one devisee applies, the court may select the best-qualified person. If no one in the statutory categories applies, the court may appoint a capable person.

In an intestate estate, the preferences are the surviving spouse, a person selected by a majority in interest of the heirs, and then the heir nearest in degree. Fla. Stat. §§ 733.301(1), (3), 733.303(2).

A practical safeguard is to confirm that the nominated personal representative and alternates meet Florida's requirements, and to revisit the plan if their domicile or circumstances change.

What an out-of-state personal representative should expect

• A Florida attorney. A personal representative generally must be represented by a Florida attorney unless the personal representative is the sole interested person or is a Florida Bar member representing themself. Fla. Prob. R. 5.030.
• A resident agent. Before letters issue, an out-of-state personal representative generally must designate a Florida resident to accept service of process and notices. The agent ordinarily must reside in the county where the estate is pending; a Florida Bar member who resides in Florida is not subject to that county-residence requirement. Fla. Prob. R. 5.110.
• A bond. A bond is generally required unless the will waives it or the court waives it. The court may require a bond despite a waiver in the will. Fla. Stat. § 733.402.

Much of the administration can often be handled remotely, but court, financial-institution, and real-estate matters may still require an in-person step. For more on timing, see How Long Does Probate Take in Florida.

At Clarke Law, P.A., I represent personal representatives in Florida and across the country in formal and summary administrations. Your first consultation is free.