Who Has Priority to Serve as Personal Representative in Florida?

Florida resolves the question of who serves as personal representative through two separate priority orders depending on whether the decedent died with a valid will. Section 733.301, Florida Statutes sets the priority list. Section 733.302 controls who is qualified to serve at all. Section 733.303 lists the categories of people who cannot serve. And Section 733.304 imposes a nonresident restriction that catches more out-of-state friends and beneficiaries than any other rule in Florida probate.

Priority When the Decedent Had a Will (Testate Estate)

Section 733.301(1)(a) lays out the order:

1. The personal representative nominated by the will — or, if multiple are named, by a majority of those named who are willing and qualified.
2. The person selected by a majority in interest of the persons entitled to the estate — meaning the beneficiaries holding the largest combined share of the estate, by value.
3. A devisee under the will. If only one devisee is willing to serve, that devisee serves. If multiple devisees apply, the court picks the one best qualified.

The will controls. A clearly named, qualified personal representative who is willing to serve will be appointed unless something in §§ 733.302-304 disqualifies them.

Priority When the Decedent Did Not Have a Will (Intestate Estate)

Section 733.301(1)(b) sets a different order when there’s no will:

1. The surviving spouse — first in line in nearly every intestate Florida estate.
2. The person selected by a majority in interest of the heirs — usually the children of the decedent, voting by share.
3. The heir nearest in degree. If multiple heirs share the same degree of relationship and disagree, the court selects the most fit. Court tie-breaking typically considers experience, age, residence, and any conflict of interest.

A surviving spouse can decline. A waiver or renunciation in writing is recognized and moves priority down to the next class.

Florida’s Qualifications: Who Is Allowed to Serve

Section 733.302 establishes the basic test. To qualify as a Florida personal representative, a person must be:

• At least 18 years old
• Mentally able to perform the duties (no adjudication of incapacity, no chronic substance use that would prevent service)
• Not disqualified under § 733.303
• A resident of Florida or a qualifying nonresident under § 733.304

A corporation can serve only if it is a Florida-authorized trust company or bank with trust powers. Most individuals are eligible — but the disqualifications below catch a meaningful share of nominated personal representatives.

Who Cannot Serve: § 733.303 Disqualifications

Section 733.303 lists four categories of people who are flatly disqualified:

• Anyone convicted of a felony. No exceptions for the type of felony, or time elapsed since conviction— though Florida case law has carved out narrow exceptions when civil rights are fully restored.
• Anyone mentally or physically unable to perform the duties as determined by the court.
• Anyone under 18.
• Anyone otherwise unqualified under § 733.304 (the nonresident rule, discussed next).

The felony disqualification is absolute and surprises many families who learn about it only after filing the petition. A nominated personal representative who has a felony record cannot serve, and the role passes to the next person with priority.

The Nonresident Rule: § 733.304

This is the rule that catches more out-of-state nominees than any other in Florida probate. A nonresident of Florida cannot serve as personal representative unless the nonresident is:

• A legally adopted child or adoptive parent of the decedent
• Related by lineal consanguinity to the decedent (parent, child, grandchild, great-grandchild, grandparent)
• A spouse, brother, sister, uncle, aunt, nephew, or niece of the decedent — or someone related by lineal consanguinity to any such person
• The spouse of any person otherwise qualified under § 733.304

What this means in practice:

• An out-of-state best friend named in the will: cannot serve.
• A cousin (collateral relative beyond niece/nephew) living in another state: cannot serve.
• A stepson who was never legally adopted: cannot serve under the lineal consanguinity test.
• A step-sibling (no blood relation, no adoption): cannot serve.
• A godparent without a legal relationship: cannot serve.
• An out-of-state attorney named in the will: cannot serve as personal representative (though the attorney can still serve as the estate’s lawyer).

The will can name them all day long. If they’re nonresidents and don’t fit one of the family categories above, they’re disqualified, and priority passes to the next eligible person.

What Happens When People with Equal Priority Disagree

Two scenarios trigger judicial intervention:

Multiple beneficiaries claim “majority in interest” priority. When beneficiaries holding equal shares can’t agree on who should serve, the court resolves the dispute under § 733.301(2). The judge typically interviews the candidates, examines their qualifications, and selects the one most likely to administer the estate impartially.

The will names co-personal representatives who can’t agree. Co-personal representatives are jointly liable and must generally agree on major decisions. When they deadlock on operational issues, either can petition the court for instructions or for the removal of the other. Persistent deadlock often results in one being removed under § 733.504.

Resident Agent Requirement for Out-of-State Personal Representatives

Even a qualifying nonresident — a sister living in Georgia, for example — must designate a Florida resident agent under § 733.4101. The resident agent accepts service of process on behalf of the personal representative for any matter relating to the estate. Without a designated resident agent, the petition for administration will be rejected. Most attorneys for the personal representative serve as the resident agent.

Co-Personal Representatives: Multiple People Serving Together

Florida permits co-personal representatives. The will can name two or more, and the court can appoint multiple if more than one person has equal priority and they want to serve together. Things to know:

• Co-PRs are jointly liable for joint decisions
• Both signatures are usually required on major estate transactions (sales, settlements)
• Disputes between co-PRs are common — and expensive when they reach the court
• Compensation is divided per § 733.617(5), which varies based on the number of co-PRs

Frequently Asked Questions

Can a beneficiary of the will also serve as the personal representative? Yes. A beneficiary is not disqualified from serving. In fact, a will-named beneficiary who is also the personal representative is the most common Florida appointment.

Does the will’s nominee always get priority? Almost always — assuming the nominee is qualified under §§ 733.302-304 and willing to serve. The court does not second-guess the testator’s choice unless a disqualification applies.

Can a non-family member from out of state serve? Only if they’re the spouse of someone who would otherwise qualify under § 733.304. Out-of-state friends, business partners, and acquaintances cannot serve.

What happens if the named personal representative refuses? Priority passes to the next class under § 733.301. A written renunciation is recommended for a clean record.

Can the court override the will’s choice of personal representative? Only by finding the nominee unqualified under §§ 733.302-304 or removing them after appointment for cause under § 733.504. Mere disagreement with the testator’s choice is not grounds.

When to Talk to a Florida Probate Attorney About Priority

Disputes over who should serve as personal representative are among the most common — and most expensive — early-stage probate fights.

Vollrath Law’s probate attorneys help Central Florida families work through priority questions before the petition is filed, identify disqualifications early, and represent both nominated personal representatives and beneficiaries challenging unqualified ones.

Schedule a consultation to discuss your specific estate.