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Can a Step-Brother that is a Nonresident of Florida Act as Personal Representative?

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May 23rd, 2022

Posted in Probate & Guardianship,Wills, Trusts & Estate Planning

Florida law provides restrictions on who can serve as personal representative (i.e. executor of an estate) when that person is not domiciled in or resident of Florida. A common question we receive when drafting a will for a client is whether the client’s step-sibling (or other step-relative) can serve as personal representative even though the step-sibling (or other step-relative) is not a resident of Florida.

Florida Statute 733.304 dictates which nonresidents can qualify as a personal representative. For a nonresident to qualify as personal representative, that person must be:

  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 persons; or
  4. the spouse of a person otherwise qualified under the three provisions above.

Lineal consanguinity is the blood relationship among persons where one is a direct descendant or ascendant of the other. It is the relation in a direct line, such as between a father, son, and grandson. 

By a strict reading of the statute, a step-sibling that is not a resident of Florida cannot serve as personal representative. However, a step-parent (i.e. the spouse of your parent, with your parent qualifying as a person related by lineal consanguinity) or a step-child (i.e. a person related by lineal consanguinity to your spouse) would qualify to serve as personal representative.

Keep in mind that Florida Statute 733.303 provides other restrictions, stating that any person serving as personal representative, whether resident or not, must also meet other personal representative qualifications such as not having been convicted of a felony, not being convicted of abuse/neglect/exploitation of an elderly person or disabled adult, and being at least 18 years of age. He or she must also be mentally and physically able to perform the duties.

If you are unsure about who you should appoint as your personal representative, contact a trust and estates attorney for assistance.

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