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01/10/2014
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Who Will Serve as Personal Representative

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Personal Injury

Pursuant to Florida’s Wrongful Death Act, wrongful death actions “shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” See, § 768.20, Fla. Stat. (2013). Your next inquiry, then, might be, how to determine who will serve as the personal representative of the decedent’s estate? In some cases, the answer to this question is fairly straightforward, such as when a qualified personal representative has been set forth in the decedent’s will.

However, some cases are more complicated,  such as where the decedent had no will, or where the personal representative named in the decedent’s will has predeceased the decedent, or is not qualified to serve as a personal representative.

The personal representative is appointed by the probate judge. In cases where the decedent has a valid will, also referred to as ‘testate,’ individual, bank or trust company named by the decedent in his or her will shall serve as personal representative, provided such person or entity is legally qualified. If the decedent died without a will, or the decedent’s will is later invalidated, also referred to as “intestate,’ the decedent’s spouse, if electing to serve and legally qualified, shall serve as the personal representative.

If the decedent did not have a spouse, or the decedent’s spouse wishes not to serve as personal representative, the decedent’s beneficiaries may agree on a qualified person or entity to serve as personal representative. If, by majority vote, the beneficiaries cannot reach agreement, the probate judge, following a hearing, will appoint a qualified personal representative.

Regardless of whether the decedent dies testate or intestate, the personal representative must meet certain qualifications, such that they are legally qualified to serve. A qualified personal representative must be a Florida Resident, or, if non-resident, must be a close relative of the decedent. Qualified non-resident relatives include:

(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 person; or
(4) The spouse of a person otherwise qualified under this section.

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In addition to qualification limitations concerning residency, a person or entity qualified to serve as personal representative must also be ‘sui juris.’ Sui Juris is latin for ‘of one’s own right.” Black’s Law Dictionary defines ‘sui juris’ as:

“…possessing full social and civil rights; not under any legal disability, or the power of another, or guardianship. Having capacity to manage one’s own affairs; not under legal disability to act for one’s self.”

Essentially, the concept of sui juris refers to competency, in terms of both age and mental capacity. Accordingly, a qualified personal representative must be at least 18 years of age, as well as be mentally competent. In addition, persons who have been convicted of a felony are not qualified to serve as a personal representative, pursuant to Florida statute.

If you are a survivor to the decedent, or a potential beneficiary of a recovery for wrongful death, including the decedent’s estate, it is important to ensure that your legal rights are adequately protected. In fact, if the beneficiaries cannot agree on a matter, such as who will serve as the personal or legal representative, or there is otherwise no “commonality of interests,” you have the legal option to ensure the protection of your legal rights by obtaining your own individual legal counsel.