At St. Petersburg Personal Injury Attorneys McQuaid and Douglas, we oftentimes get cases involving a wrongful death, a wrongful death is when someone is killed by the negligence of another. These claims are governed by Florida statutes and they go through and define who can benefit from a wrongful death claim, who a survivor is. Uh, obviously we have the decedent, what the estate is, but one of the issues that comes up often is what is a personal representative? Well, today I have my partner here, Rachel Drude-Tomori. She specializes in this area of law that being probate, estate trust litigation, and at our firm, we rely on her to help us set up the estate and move forward with the personal representative side of the wrongful death case. Now I’d like to kick it over to her to have her tell you a little bit about what a personal representative is, how one is appointed, and the importance of a personal representative. Rachel?
Thanks Jonathan. The personal representative is an individual or an entity like a bank or a trust company in an estate proceeding who is going to be in charge of everything that happens in the estate proceeding. It’s the person or entity that’s basically stepping into the shoes of the person who died, who’s known as the decedent. So there’s a few different ways that someone can be appointed as personal representative, but first in order to be appointed, someone has to petition the court. So if there is a will for the deceased person, we’re first going to look and see who does the will nominate and as long as the person or the entity that the will nominates otherwise qualifies because there’s certain criteria that have to be met, then that’s the person or entity that we’re going to ask the court to appoint through a petition. If the person who died doesn’t have a will, then Florida law has a default order of priority as far as who is entitled to serve as personal representative. And it’s not always the people who may be the survivors in the wrongful death.
And that’s one of the questions we get. Often survivors, they want to know if they all can be the personal representative and that’s oftentimes not the case.
So typically we want one personal representative. Now that doesn’t mean you can’t put more than one together. [inaudible] personal representatives in a will. Sometimes that can work, but what I always say is it’s easier to steer a vehicle with one set of hands on the steering wheel rather than two. So I prefer having one personal representative. So typically if if there is no will or the person who’s nominated in the will is not available, then we’re going to look to Florida statute. And what Florida statute says is first we’re going to say, well, did the person who die have a surviving spouse? That’s the person who’s going to be first in priority. If there is no surviving spouse or that person is not available, then we’re going to look and see, did that person have any children? And if there’s more than one child, we’re going to try to get a family consensus on who the best person of the children would be to serve as the personal representative. Then we can go out to more remote family members. Something that’s always important to remember when you’re doing your estate planning is when you’re nominating a personal representative to serve in your documents. Generally, your personal representative has to be a resident of Florida unless they’re a family member. If they’re a family member, then they can live outside of Florida.
Now, Rachel, if this individual who has passed doesn’t have a will or some sort of a something set up pre death, what happens in that scenario to get a personal representative appointed?
So we would meet with the family members. If we’re in a wrongful death scenario, then there should be some family members surviving and try to get a consensus from the family as to who should be nominated in the petition that we’re going to be filing with the probate court to get that person appointed. So generally there are basic requirements to become personal representative. You have to be over the age of 18. You cannot have been convicted of a felony. You’d have to be a Florida resident or a family member within certain classes, spouse, children, descendants, et cetera. So if all those qualifications are met, then the probate attorney will make the petition, the probate attorney signs it, the person who’s being nominated as personal representative also will sign it. And there’s quite a few other documents that go along with that filing. We make the filing along with the death certificate, the will if there is one. And then typically we’re looking at between two and four weeks at least in Pinellas County, Florida for the probate court to enter an order appointing the personal representative. Also, something I didn’t mention is generally the personal representative has to be bonded so they have to pace something equivalent to an insurance premium to protect them in case they make any mistakes.
And so as that applies to the Florida wrongful death statute is the personal representative is the individual in charge of, uh, moving forward with the wrongful death lawsuit on behalf of both the decedent’s estate and any and all beneficiaries and survivors. So I hope this has been helpful to kind of navigate the Florida wrongful death statute and Florida wrongful death claims. If you or anyone you know, uh, has any questions about the Florida wrongful death act, please feel free to contact us immediately for a free consultation. Thank you, Rachel. Thank you Jonathon.
*The above has been transcribed by a third party service and has not been checked for accuracy.
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