I think one of the biggest reasons people do not do their estate planning is because they do not want to think about how life will go on after they are gone. Okay. I understand the hesitation. After all, who really wants to think about their mortality? But, if you do not plan for how things will be administered after you are gone, are you alright with the state of Florida doing it for you?
According to Florida law, if you do not have a Will naming an executor (in Florida, this is also referred to as the “personal representative”) of your estate, then certain people have the right to act as the executor. First, the court looks to whether or not you have a spouse – if you do, that person has the priority to serve as executor. If you do not have a spouse, than a majority of the heirs must agree on who is selected to serve as executor.
So, if you are moving forward and doing your estate plan, who should you name as your personal representative? One attorney I know jokingly tells his clients to name their least favorite child. Why would he say that? Because acting as the personal representative of an estate is a thankless job – it takes a lot of time, the beneficiaries are usually wanting their money yesterday, and the personal representative is the one that has to make that happen (with the help of their attorney, of course).
One thing I definitely recommend against – appointing all children as co-executors of your estate because you are scared to upset one by appointing another. That will definitely cost the estate time and money, and probably a lot of fighting. Appoint someone who has an accounting background (because they will have to report to the beneficiaries an inventory of the assets and probably have to file an accounting with the court). The person does not have to have a legal or accounting background (but it does help if the person is good with numbers). Obviously, you want to appoint someone who will act responsibly and understand the fiduciary duty they have to the beneficiaries of the estate.
Laurie Ohall is a board certified elder law attorney practicing in Brandon, Florida. Contact Ms. Ohall today if you are in need of elder law, probate, or guardianship assistance.
