One of the things you have to do when drafting a will is to choose a “Personal Representative”, which is what Florida calls an Executor.
The Personal Representative is going to be responsible for hiring a lawyer to probate the estate, gathering assets, paying bills, maybe filing tax returns, and otherwise dealing with your affairs after your death.
Florida has some limitations on who can be Personal Representative. In order to serve in a Florida probate, the person must be either 1) a Florida resident, 2) a Florida attorney, or 3) a spouse, a relative, the relative of a spouse, or the spouse of a relative of the decedent. Additionally, they must be otherwise “competent” meaning they must be over the age of 18, not a convicted felon, and not have been declared incapacitated or incompetent.
From a practical viewpoint, most people will choose their spouse, if they have one, to serve as Personal Representative. Obviously, if the spouse has problems handling business affairs, then the person may want to choose someone else. Additionally, even where spouses name each other as Personal Representative in their wills, it is a good idea to name a second, or alternate, Personal Representative to serve if the spouse is already dead or is unable to act.
If there is only one child, usually people will choose that child. The problem comes in where there are more than one child and the parent has to choose among them.
I tell clients that Personal Representative is not a Crackerjack prize, it’s a duty. There is a fair amount of paperwork, you are dealing with lawyers and banks and retirement systems and in some cases, the government, and it’s not terribly pleasant. You need to choose someone who is reliable, who will do what needs to be done promptly, who will basically do what the probate lawyer tells them to do when the lawyer tells them to do it and who is going to take the probate lawyers’ advice. And, you need someone who has a sense of fairness; sometimes I see Personal Representatives who want to use the probate process to settle old scores, who may resent the way another child was treated, either during the parents’ lifetime or even under the will and try to deny that child what is their due.
You should choose your Personal Representative carefully; while you want to choose someone who is responsible, you also want to make sure that the person is not going to try to run roughshod over the beneficiaries. Occasionally I will see Personal Representatives who think that they are a king; and can do what they want. While Personal Representatives have some discretion under Florida law, they owe a duty to beneficiaries, to creditors of the estate, and to the court system. They have to be fair to everyone.
