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Florida Supreme Court Approves Technical Amendments to Probate Rules

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The Florida Supreme Court recently approved some technical amendments to the rules governing probate proceedings in the state. While these amendments do not significantly alter existing law, they provide a good opportunity to explain the basics of filing a petition for administration–i.e., the first step in seeking opening a formal probate estate after someone dies.

Establishing “Preference” for Appointment of a Personal Representative

Typically, the personal representative named in the will or any other interested person can file a petition to open a probate estate. Section 733.301 of the Florida Statutes governs who can actually be named as personal representative. Anyone nominated in the will has priority or “preference.” If there is no will–o.e., the estate is intestate–the law establishes an order of preference based on the relationship between the potential personal representative and the deceased. For instance, the spouse of the deceased would have first preference in an intestate estate.

Under the Supreme Court’s recent amendments, the petition must make it clear if someone other than the petitioner “has equal or higher or equal preference under Section 733.301.” If such a person does exist, the petitioner must indicate whether this person “will be served with formal notice” of the probate proceeding.

Who “Qualifies” to Serve as a Personal Representative in Florida?

The second amendment approved by the Court adds a new rule that requires the petitioner to state the proposed personal representative is “qualified to serve under the laws of Florida.” What does “qualified” mean? Generally speaking, you can nominate anyone you want to be the personal representative of your estate. They do not have to be a spouse or a blood relative.

But there are some critical limitations. Section 733.303 disqualifies the following types of people from serving as personal representative of a Florida probate estate:

  • anyone convicted of a felony;
  • anyone found “mentally or physically unable” to perform the role; or
  • a minor, i.e., anyone under the age of 18.

In addition, Section 733.304 states that a non-resident of Florida cannot qualify as personal representative unless they are a spouse, family member, or spouse of a family member. So you could not name a distant cousin from out-of-state as your personal representative.

It is also possible to “qualify” a personal representative that is not an individual. Section 733.305 allows “[a]ll trust companies incorporated under the laws of Florida,” including any state-chartered banks or savings and loans, to serve as corporate personal representatives. However, unless your estate is especially complex or you have no family members or Florida-based friends you can trust with your estate, it is uncommon for a decedent to name a corporate personal representative.

Speak with a Florida Probate Attorney Today

If you suddenly find yourself in the position of having to probate a family member or other loved one’s estate, you will no doubt have many questions about the process. An experienced Fort Myers estate and probate administration lawyer can help. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free, in-office consultation with a member of our team today.

Source:

scholar.google.com/scholar_case?case=11787921264325955595

https://www.kuhnlegal.com/understanding-the-limits-of-a-revocable-trust-in-florida/

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