Miami, Florida Personal Representative

When a person dies in Florida, their estate does not administer itself. Someone must be appointed to take charge of the decedent's assets, pay debts and taxes, and distribute what remains to the rightful beneficiaries. Under Florida law, that person is called the personal representative. While other states use terms such as executor or administrator, Florida's Probate Code uses the single unified term “personal representative” to describe any individual or institution serving in this capacity, whether nominated in a will or appointed by the court.

At the Law Offices of Albert Goodwin, PA, we represent personal representatives, beneficiaries, and heirs in all matters arising from the administration of Florida estates. Whether you have been named as personal representative in a loved one’s will, need to petition the court for appointment, or believe that a personal representative is failing in their duties, our firm can assist you through every stage of the probate process.

What Is a Personal Representative in Florida?

A personal representative is the individual or institution appointed by the Florida probate court to administer a decedent's estate. The personal representative stands in a fiduciary relationship to the estate's beneficiaries and creditors, meaning they must act with the highest degree of loyalty, good faith, and care. Under F.S. § 733.602, the personal representative is a fiduciary who must observe the standards of care applicable to trustees as set forth in the Florida Trust Code.

Florida distinguishes between two types of personal representatives depending on whether the decedent left a valid will:

Executor – When the decedent's will nominates a specific person to serve as personal representative, that person is sometimes informally referred to as the executor. In Florida practice, however, the statutory term remains “personal representative.”
Administrator – When the decedent dies without a will (intestate), or when the will does not nominate a personal representative, or when the nominated person is unable or unwilling to serve, the court appoints a personal representative who is sometimes called the administrator.

Regardless of how they are designated, the personal representative's legal obligations and authority are the same once appointed by the court.

Who Can Serve as Personal Representative in Florida?

Florida law imposes specific eligibility requirements on who may serve as personal representative. These requirements are stricter than those in many other states, and understanding them is essential before filing a petition for administration in Miami-Dade County or elsewhere in Florida.

Basic Eligibility Requirements

Under F.S. § 733.302 and F.S. § 733.303, to be eligible to serve as a personal representative in Florida, a person must be:

At least 18 years of age – Minors cannot serve as personal representatives under any circumstances.
Mentally and physically capable – A person who has been adjudicated mentally incapacitated is disqualified from serving. Even without a formal adjudication, the court may find a person unfit to serve if they lack the mental or physical capacity to carry out their duties.
Not a convicted felon – Under F.S. § 733.303, a person who has been convicted of a felony is not qualified to serve as personal representative in Florida. This disqualification applies regardless of when the felony conviction occurred or whether civil rights have been restored.

Florida Residency Requirement

One of the most significant restrictions under Florida law is the residency requirement set forth in F.S. § 733.304. A person who is not a resident of the State of Florida cannot serve as personal representative unless they are related to the decedent by blood, marriage, or adoption. Specifically, the following non-residents may serve:

The decedent's legally adopted child or adoptive parent
A person related by lineal consanguinity to the decedent (parent, grandparent, child, grandchild, etc.)
A spouse, sibling, uncle, aunt, nephew, or niece of the decedent, or someone related to the decedent by marriage within those same degrees

This residency restriction is one of the most commonly encountered obstacles in Miami-Dade County probate proceedings, particularly in cases where the decedent was a Florida resident but close friends or business associates who reside out of state were named as personal representative in the will. If the nominated personal representative does not meet the residency and relationship requirements, the court will not appoint them, and an alternative must be found.

Corporate Personal Representatives

Under F.S. § 733.305, a trust company, bank, or savings association authorized and qualified to exercise fiduciary powers in Florida may serve as personal representative. These corporate fiduciaries must hold a trust license or other appropriate authorization from the Florida Office of Financial Regulation. This option is sometimes appropriate for larger or more complex estates in the Miami area where professional administration is desirable.

How Personal Representatives Are Appointed

A personal representative does not have authority to act until formally appointed by the Florida probate court. The appointment process begins with the filing of a petition for administration in the county where the decedent was domiciled at the time of death. In Miami-Dade County, probate petitions are filed in the Probate Division of the Eleventh Judicial Circuit Court.

When There Is a Will

If the decedent left a valid last will and testament, the will is admitted to probate and the person nominated in the will as personal representative has preference for appointment. The nominated person must file a petition for administration along with the original will, a certified death certificate, and an oath of personal representative. If no objections are raised and the nominated person meets all statutory qualifications, the court will issue an order of appointment.

When There Is No Will

When a person dies intestate—without a valid will—the court must appoint a personal representative from among those persons entitled to preference under F.S. § 733.301. The surviving spouse has first preference, followed by the person selected by a majority in interest of the heirs, and then the heir nearest in degree to the decedent. If no family member is willing or able to serve, the court may appoint any qualified person.

Letters of Administration

Once the court appoints a personal representative, it issues Letters of Administration (or Letters of Administration with Will Annexed, if a will exists). These letters are the personal representative's proof of authority to act on behalf of the estate. Financial institutions, title companies, government agencies, and other third parties will require certified copies of the letters of administration before allowing the personal representative to access or transfer estate assets.

Letters of administration are essential for conducting virtually every aspect of estate administration, including opening estate bank accounts, transferring securities, selling real property, collecting debts owed to the estate, and dealing with insurance companies. In Miami-Dade County, obtaining letters of administration typically requires the court's review and approval of the petition for administration, the oath of personal representative, and the designation of a resident agent if the personal representative is a non-resident.

Duties and Responsibilities of a Personal Representative

The personal representative's duties are extensive and are governed primarily by F.S. § 733.601 through F.S. § 733.6175. Serving as personal representative is not merely honorary; it is a position that carries substantial legal obligations and potential personal liability for failure to perform.

Marshaling and Protecting Estate Assets

The personal representative must take control of all assets belonging to the decedent's estate. This includes identifying, locating, and securing real property, bank accounts, investment accounts, vehicles, personal property, business interests, and all other assets. The personal representative must protect these assets from waste, loss, or deterioration throughout the administration process.

Providing Notice to Creditors and Beneficiaries

Under F.S. § 733.2121, the personal representative must publish a notice to creditors in a local newspaper within the applicable time period. The personal representative must also serve a copy of the notice of administration on all known or reasonably ascertainable creditors and on all beneficiaries named in the will or, in intestate estates, on the decedent's heirs.

Paying Debts, Claims, and Taxes

The personal representative must evaluate all claims filed against the estate, pay valid debts in the order of priority established by F.S. § 733.707, and file all required tax returns. This includes the decedent's final individual income tax return, any estate income tax returns, and, if applicable, a federal estate tax return. In Miami-Dade County and throughout Florida, failure to properly handle creditor claims and tax obligations can result in personal liability to the personal representative.

Filing Accountings

The personal representative has a legal obligation to file accountings with the probate court. Under F.S. § 733.5036, any interested person may require the personal representative to file an accounting of the estate's administration. The accounting must detail all receipts, disbursements, distributions, and the assets remaining in the estate. For more information about the accounting obligation, see our page on estate accounting. When beneficiaries dispute the accuracy or completeness of a personal representative's accounting, the matter may proceed to a hearing on contested accountings.

Distributing Estate Assets

After paying all debts, claims, taxes, and expenses of administration, the personal representative must distribute the remaining estate assets to the beneficiaries in accordance with the decedent's will or, if the decedent died intestate, in accordance with Florida's intestacy statutes under F.S. § 732.101 through F.S. § 732.111. The personal representative should not make distributions until satisfied that all debts and taxes have been paid or adequately provided for, as premature distributions can result in personal liability.

Compensation of Personal Representatives

Florida law recognizes that serving as a personal representative is demanding work and entitles the personal representative to reasonable compensation. Under F.S. § 733.617, a personal representative is entitled to a commission that is “reasonable” for the services rendered. The statute does not set a fixed fee schedule but instead provides that reasonable compensation may be based on the compensable value of the estate.

In practice, Florida courts often look to the following factors in determining reasonable compensation:

The size and complexity of the estate
The nature and value of the estate assets
The time and effort required for administration
Whether the personal representative had to deal with unusual or difficult issues, such as contested claims, litigation, or complex tax matters
Whether the personal representative is a professional fiduciary or a family member
The results achieved for the beneficiaries

If the will specifies the personal representative's compensation, that amount is presumed reasonable unless an interested person objects. Any interested person may petition the court to review and approve or reduce the personal representative's compensation if they believe the amount claimed is excessive. If the personal representative retains an attorney, the attorney's fees are also subject to court review and approval under F.S. § 733.6171.

Removal of a Personal Representative

Not every person appointed as personal representative fulfills their obligations. When a personal representative fails to perform their duties or engages in misconduct, Florida law provides a mechanism for their removal. Under F.S. § 733.504, the court may remove a personal representative for any of the following grounds:

The personal representative was not qualified to serve at the time of appointment
The personal representative has become incapacitated since appointment
The personal representative has failed to comply with a court order
The personal representative has failed to discharge their fiduciary duties, including the failure to file required accountings or inventories
The personal representative has mismanaged the estate or has been guilty of neglect or waste
The personal representative has engaged in self-dealing or conflicts of interest
The personal representative has failed to properly account for estate assets
Continued service by the personal representative is contrary to the best interests of the estate

Removal proceedings are initiated by filing a petition with the probate court. Any interested person—including a beneficiary, heir, or creditor—may file a petition for removal. The court will hold a hearing at which the petitioner must demonstrate grounds for removal. If the court finds that removal is warranted, it will appoint a successor personal representative to complete the administration of the estate.

Breach of Fiduciary Duty by a Personal Representative

Because the personal representative occupies a fiduciary position, any failure to act in the best interests of the beneficiaries may constitute a breach of fiduciary duty. Common examples of fiduciary breaches by personal representatives include self-dealing, commingling estate funds with personal funds, failing to invest estate assets prudently, failing to provide accountings, making unauthorized distributions, and failing to pursue claims or assets owed to the estate.

A personal representative who breaches their fiduciary duty may be held personally liable for any losses suffered by the estate. The court may surcharge the personal representative—meaning the personal representative must repay the estate from their own funds for any losses caused by the breach. In addition to surcharge, a personal representative who breaches their fiduciary duty may be removed from their position, denied compensation, and ordered to pay the attorney's fees and costs incurred by the beneficiaries in bringing the breach of fiduciary duty action.

Beneficiaries who suspect that a personal representative is mismanaging an estate or acting in bad faith should act promptly. Florida law imposes statutes of limitations on breach of fiduciary duty claims, and delay can result in further dissipation of estate assets. For more information on recovery of estate assets, contact our office.

Contact a Florida Personal Representative Attorney

Whether you need assistance with the appointment of a personal representative, are currently serving as personal representative and require legal guidance, or need to take action against a personal representative who is failing in their duties, the Law Offices of Albert Goodwin, PA is here to help. We handle all aspects of probate administration and estate litigation throughout South Florida.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz # 1000, Coral Gables, FL 33134. We serve clients in Miami-Dade County, Broward County, and Palm Beach County.