Executor vs. Administrator in Miami, Florida

When a loved one passes away, someone must step forward to manage their estate through the probate process. In many states, the person appointed to handle a testate estate (one with a valid will) is called the executor, while the person appointed to handle an intestate estate (one without a will) is called the administrator. In Florida, however, both roles are combined under a single legal title: the personal representative. Despite this unified terminology, significant differences exist between how a personal representative is appointed and what powers they have depending on whether the decedent left a will. The Law Offices of Albert Goodwin, PA helps clients throughout Florida navigate the probate process, whether they are seeking appointment or challenging the appointment of a personal representative.

Florida's Unified Terminology: The Personal Representative

Under the Florida Probate Code, the term "personal representative" encompasses what other states call executors, administrators, and other fiduciary positions. F.S. § 731.201(28) defines a personal representative as the fiduciary appointed by the court to administer the estate, regardless of whether the decedent died with or without a will. This unified terminology simplifies the legal framework, but the method of appointment and the scope of authority still differ depending on whether a valid will exists.

Although the legal term in Florida is always "personal representative," many people still use the words "executor" and "administrator" colloquially. For purposes of clarity, the person named in a will to serve is often referred to as the executor, while the person appointed by the court when there is no will is referred to as the administrator. Florida courts and statutes, however, use only "personal representative."

Appointment When There Is a Will (Testate Estate)

When a decedent leaves a valid will, the will typically names the person the decedent wants to serve as personal representative. Under F.S. § 733.301(1), the person nominated in the will has preference for appointment. The court will generally honor the decedent's choice unless the nominated person is disqualified under Florida law or declines to serve.

To be eligible to serve as a personal representative in Florida, a person must meet the qualifications set forth in F.S. § 733.303. The nominee must be at least 18 years old, must be mentally and physically able to perform the duties, and must not have been convicted of a felony. Additionally, if the nominee is not a Florida resident, they must be a spouse, sibling, parent, child, or other close relative of the decedent in order to qualify under F.S. § 733.304.

If the person named in the will is unable or unwilling to serve, the will may name an alternate. If no alternate is named or available, the court will appoint a personal representative according to the statutory order of preference.

Appointment When There Is No Will (Intestate Estate)

When a person dies without a valid will, the estate is administered under the laws of intestate succession. Because there is no will to nominate a personal representative, the court must appoint one based on the order of preference established in F.S. § 733.301(2). The statutory preference is as follows:

• The surviving spouse
• The person selected by a majority in interest of the heirs
• The heir nearest in degree to the decedent (if the heirs cannot agree on a selection)

If no qualified person in the above categories is available or willing to serve, the court may appoint any other person the court deems suitable, including a professional fiduciary or a bank trust department. The court has broad discretion in making this determination and will consider factors such as the complexity of the estate, potential conflicts among heirs, and the need for impartial administration.

Key Differences in Powers and Authority

While the fundamental duties of a personal representative are the same regardless of how they are appointed, several important differences exist between a personal representative serving under a will and one serving in an intestate estate:

Powers Granted by the Will

A will can expand or restrict the personal representative's powers beyond what the Florida Probate Code provides by default. For example, a will may grant the personal representative the power to sell real property without court approval, to operate the decedent's business, to make specific distributions in kind rather than in cash, or to exercise other specific powers. In contrast, an administrator of an intestate estate has only the powers granted by the Florida Probate Code and by court order.

Independent vs. Dependent Administration

Under F.S. § 733.401, a will may authorize independent administration, which allows the personal representative to administer the estate with minimal court supervision. Independent administration gives the personal representative broad authority to sell property, pay debts, and make distributions without obtaining court approval for each action. In an intestate estate, independent administration is only available if all heirs agree to it, which can be difficult to obtain when heirs disagree about how the estate should be handled.

Distribution of Assets

Perhaps the most significant practical difference between testate and intestate administration is how assets are distributed. A personal representative serving under a will must distribute assets according to the terms of the will, including specific devises, general devises, and residuary devises. An administrator of an intestate estate must distribute assets according to the intestate succession scheme established in F.S. § 732.101–732.111, which provides for distribution to the surviving spouse, descendants, parents, and other relatives in a specific order.

Shared Duties of All Personal Representatives

Regardless of whether they are appointed under a will or in an intestate proceeding, all personal representatives in Florida share the same core fiduciary duties. These duties are established throughout Chapter 733 of the Florida Statutes and include:

• Duty to identify, collect, and protect estate assets. The personal representative must locate all assets belonging to the estate, take possession of or control over those assets, and protect them from loss, damage, or waste.
• Duty to provide notice. Under F.S. § 733.212, the personal representative must serve a notice of administration on all known beneficiaries or heirs and must publish a notice to creditors.
• Duty to pay debts and expenses. The personal representative must pay valid creditor claims, taxes, and the expenses of administration from estate assets.
• Duty to account. Under F.S. § 733.602, the personal representative must keep accurate records of all receipts, disbursements, and distributions and must provide an accounting to interested persons.
• Duty of loyalty. The personal representative must act in the best interests of the estate and its beneficiaries and must avoid self-dealing and conflicts of interest.
• Duty to distribute assets. After paying all debts and expenses, the personal representative must distribute the remaining assets to the persons entitled to receive them.

Compensation

Under F.S. § 733.617, both types of personal representatives are entitled to reasonable compensation for their services. Florida law provides a statutory fee schedule based on the value of the estate, which serves as a presumptively reasonable amount. However, the will may provide for different compensation, and the court may adjust the fee based on the complexity of the administration and the personal representative's performance.

Removal of the Personal Representative

Whether appointed under a will or by the court in an intestate proceeding, a personal representative can be removed for cause under F.S. § 733.504. Grounds for removal include failure to perform fiduciary duties, breach of fiduciary duty, incapacity, conflict of interest, mismanagement of estate assets, failure to account, and other conduct that demonstrates the personal representative is unfit to continue serving. Any interested person, including a beneficiary, heir, or creditor, may petition the court for removal.

Which Type of Appointment Is Better?

From a practical standpoint, having a personal representative named in a will generally results in a smoother and more efficient probate process. The decedent has the opportunity to choose someone they trust, potentially grant expanded powers, and authorize independent administration. When there is no will, the appointment process can be contested, the personal representative operates with more limited authority, and disagreements among heirs can significantly delay the administration.

This is one of the many reasons why comprehensive estate planning is so important. By executing a valid will and naming a qualified personal representative, you can help ensure that your estate is administered according to your wishes with minimal delay and expense.

Contact a Florida Probate Attorney

Whether you are seeking appointment as the personal representative of an estate, challenging someone else's appointment, or need guidance on your rights as a beneficiary or heir, the Law Offices of Albert Goodwin, PA can help. We handle both testate and intestate probate matters throughout Florida and can advise you on the best approach for your situation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134. Call us at 786-522-1411 or email [email protected] to schedule a consultation.