Who Can Be the Personal Representative?

Any Florida resident who is 18 years of age or older at the time of the decedent’s death may be appointed Personal Representative. A convicted felon cannot. F.S. 733.303(1)

  1. Can a non-resident of the State of Florida qualify as a Florida Personal Representative? Perhaps. Is that person: The decedent’s legally adoptive child or the decedent’s adoptive parent?
  2. Related by “legal consanguinity”* to the decedent?
  3. The decedent’s spouse, brother, sister, uncle, aunt, nephew, or niece?
  4. Someone related by legal consanguinity to those listed above?
  5. The spouse of any of those listed in 1-4 above?

* Black’s Law Dictionary defines Legal Consanguinity that as a blood relationship or the connection or relation of persons descended from the same stock or common ancestor. That is to be distinguished from “affinity,” which is the connection existing by virtue of marriage.

Lineal consanguinity is where one is descended in a direct line from the other, as between son, father, grandfather, great-grandfather, etc. or between son, grandson, great-grandson, etc.

Collateral consanguinity exists between persons who have the same ancestors, but who do not descend (or ascend) from one another. Thus, father and son are related by lineal consanguinity, uncle and nephew by collateral consanguinity.

What If The Original Will Can’t Be Found?

You might think that producing a photographic copy of the Will would work, but it won’t. The reason is that the original will is presumed to be under the custody and control of the testator, and if the Will cannot be found, the presumption arises that the testator destroyed the Will. “Proving” a lost Will is usually difficult and expensive.

The lost Will’s contents must be proved by 2 disinterested witnesses, or if a photocopy of the Will is obtained bearing the decedent’s signature, then only one “disinterested” witness is required F.S. 733.207.

But who is a “disinterested” witness, and how much must the disinterested witness know about the contents of the will? There’s the rub. The beneficiaries may know, but they are not disinterested – they are very much interested.

Just recently we had a case where the decedent omitted his children and left everything to his grandchildren. One of his children was married to a spouse who had bad spending habits – the next business deal was sure to work, etc.

But, none of the decedent’s children could testify because they were all “interested” persons. Luckily, we found the decedent’s brother who had had multiple conversations with the decedent before his death in which the decedent expressed concern for his grandchildren’s college education. The witness flew down and gave testimony before the Probate Court that was credible and convincing. The Probate Court upheld the Will, entered an Order that the copy was authentic, and probate of that Will is currently under administration.

Is There A Mistake on the Death Certificate?

Do not assume that the death certificate has been properly and accurately completed. Important data is not infrequently incorrect.
Read the death certificate slowly and thoroughly as soon as it is available – approximately 10 days or less from the date of death.

It is not uncommon for the death certificate to incorrectly show the decedent’s domicile. The decedent may have died in a nursing home in Georgia, but that does not mean that the decedent was a Georgia resident.

If at the time of death the decedent had his or her Florida homestead titled in the decedent’s name, then there is every likelihood that the decedent was still a Florida resident at the time of death. This can be critical for homestead determination in the probate context.

Another common error on the death certificate is an incorrect social security number – that can create all sorts of havoc throughout the probate process – insurance claims, Veteran’s Benefits, etc. – and it should be corrected at the outset and before it is filed for public record.

In Florida there are 2 kinds of death certificates: The “short” form or “non-medical” form does not show the cause of death. The “long” form discloses the cause(s) of death. The short form is preferable in the state of Florida although it is possible to use a long form Florida death certificate. The cause of death will be masked prior to its recording.

Out of state death certificates are eligible for recordation with or without the cause of death being shown.
Note that there is a common misconception that a death certificate is automatically recorded when the state issues it, but that is not the case.

If the decedent died owning real estate in Florida, the death certificate must be recorded in every county in which the decedent owned real property. Further, a Form 94 (Affidavit of No Estate Tax Due) must be filed in conjunction with the death certificate to prove that no estate taxes are due.

Not Enough To Go Around? – Abatement

When estate assets are insufficient to pay the creditors, the expenses of distribution, and the devises, the result is an abatement.

Then what happens? In what order will those Will provisions “abate,” i.e., be reduced in amount?

F. S. 733.805 controls: Property not disposed of by the will abates first, next residuary devises -the clause in the will that reads, “all the rest, residue, and remainder of my estate, I leave to …”; then general devises – “all my lands in Polk County, Florida, etc.”; and, lastly, specific and demonstrative devises -“I leave Joe $1,000 from my XYZ stock.”

Formerly, there was a distinction between a “bequest” – a gift of personal property, and a “devise” – a gift of real property. Today, the term devise has largely replaced the term bequest, although “bequest” is still in common usage when referring strictly to the disposition of personal property. So, today we refer to a “Devisee” as someone who receives real or personal property or both from a Will.

Historically, real property and personal property were treated differently for purposes of abatement. However, F. S. 733.805 provides that devises abate without priority between real and personal property.

Because a testator usually intends to benefit the residuary devisees most, it is therefore better advice for the will drafter to express specific devises in terms of percentages so that the shares for residuary beneficiaries aren’t exhausted by having to specifically pay more remote beneficiaries first.

It can therefore be risky for a Personal Representative to make a partial distribution to a beneficiary which may later turn out to be improper, particularly if it turns out that there are not enough assets to go around as the Will provides.

The Personal Representative has potential personal liability for improper distributions as well as being personally liable to the taxing authorities for the payment of state and federal estate taxes.

Disposition of Remains – Who Decides?

Probably the spouse. Even where there was a judicial separation, the spouse determined disposition over the decedent’s remains, despite the objections of the children. Andrews vs. McGowan, 739 So.2d 132 (Fla. 5th DCA 1999).

If there is no one who claims the decedent’s remains or if there is no one who is not legally responsible for burial, then the county is responsible.

What if the Deceased sets out burial/cremation disposition in the Will (always a bad place to put those instructions), then there is a later change of mind? Do the Will’s written instructions prevail or can the Decedent’s subsequent testimony and oral direction control? Yes, you can change your mind with oral instructions. Cohen vs. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005).

Moreover, it probably won’t help to leave your burial instructions in your Will. The will of Franklin D. Roosevelt, a lawyer and even a U.S. President, laid out specific instructions in his Will for his funeral ceremony and burial. Unfortunately, the Will was reviewed only after he was laid to rest.

If it can happen to the President of the United States, there is at least a fair chance that it can happen to you and me. Tell your personal representative. Tell your spouse. Tell your children. Write them letters, etc.

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