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September 13

Who Becomes Executor If There Is No Will?

Written by Thomas Upchurch

Your will is an expression of how you want your assets to be distributed in the future, which makes it an important legal document. If you have no will, the matter of who will become the executor of your estate – or personal representative – is an issue. 

If you have questions or concerns about your own will or about the estate of a loved one who has passed, don’t hesitate to reach out for the skilled legal guidance of an experienced Florida estate planning lawyer

Intestate Succession

In Florida, if you pass without a legally valid will in place, your estate will flow to your family members in accordance with the laws of intestate succession. This means that state laws will dictate who gets what – instead of your assets being distributed according to your wishes. 

Generally, a will assigns a personal representative or executor of the estate, but if there is no will, this responsibility will be assigned to one’s spouse – if married – or to a surviving child – if applicable. If there isn’t a close relative to take over the responsibility, the court may assign it to a close friend, but it can also turn to a professional executor, such as a CPA or an attorney.

The Executor’s Responsibilities  

The executor of your estate is responsible for all the following primary roles in relation to your estate:

  • Notifying your creditors of your death 
  • Filing all required tax returns
  • Inventorying your assets and debts and paying off all pending debts
  • Distributing all remaining assets in accordance with Florida’s laws of intestacy

It’s important to note that Florida’s laws regarding how your assets will be distributed may be very different than your wishes on the matter. Putting effort into establishing how your legacy will flow to your loved ones can afford you considerable peace of mind, which makes working closely with a seasoned attorney for wills well-advised. 

Who Can Serve as a Will’s Executor

Even if your will does nominate an executor, the court will have the final say on the matter of who is actually assigned. If, however, you nominate someone who meets the legal requirements, your appointment is almost certain to prevail. If you have no will, on the other hand, the court will have no choice but to assign an executor of its choosing.

The restrictions regarding who can serve as an executor in Florida include the following:

  • An executor must be at least 18 years old.
  • An executor cannot have a conviction for any serious crimes on their record.
  • The executor must live in the State of Florida unless they are a close relative.

Ultimately, the court will have considerable discretion regarding who will serve as the executor of your estate if you pass without a valid will in place. 

Moving Forward

As the executor of an estate, you will be tasked with a profound responsibility regarding the estate of the decedent – or the person who lost their life. In the State of Florida, every executor must have legal representation, such as a Florida estate planning lawyer, in order to open the formal probate process. 

From here, the steps involved with closing the estate include:

  • Taking possession of all the decedent’s financial effects, which can include computer passwords, bank accounts, credit cards, keys to properties and vehicles, and keys to any storage lockers
  • Inventorying the contents of any safe deposit boxes in the presence of at least one witness
  • Taking possession of any social media accounts
  • Securing the contents of all real estate premises by keeping them locked
  • Depositing the decedent’s will with the county clerk in the county of their residence within ten days of their death – when there is a will
  • Officially changing the decedent’s address to help ensure that all assets are accounted for and all debts are covered
  • Researching the decedent’s bank accounts and financial records for information regarding creditors who potentially have a claim for payment
  • Paying the decedent’s debts under the skilled guidance of the estate planning attorney 
  • Preparing the decedent’s final tax return for filing with the IRS – as applicable
  • Inventorying the decedent’s estate for submission to their heirs and the probate court within 60 days of appointment as executor
  • Providing an accounting from the date of death to the present to the decedent’s heirs
  • Distributing the decedent’s assets according to their wishes if there is a legally valid will in place and according to Florida’s laws if there is not 

Contested Wills

While a will can be contested, the will you create is unlikely to be successfully contested if you had professional legal guidance on your side. The probate process – outside of a will being in place – distributes assets according to state law, which can’t be contested. Qualifying relationships, however, can be. For example, a common law spouse who can prove their relationship to the decedent could significantly alter the distribution of assets in a probated estate with no will. While Florida does not recognize common law marriages within the state, it does recognize common law marriages that are established in states that do recognize their legal validity. 

When a will is successfully contested, it’s generally based on one of the following:

  • Irregularities in how the will was executed – or created
  • Absence of testamentary capacity, which means the creator of the will was younger than 18 or was not of sound mind
  • Undue influence in relation to the will’s creation

A will can only be contested by someone with legal standing, which means that the person must have a legal interest in the matter. Generally, those with legal standing include all the following:

  • The decedent’s creditors
  • The decedent’s beneficiaries 
  • The decedent’s heirs

If you believe you’ve been cut out of your legal inheritance, it’s time to consult with a formidable Florida will contest lawyer. 

Discuss Your Concerns with an Experienced Florida Estate Planning Lawyer 

Thomas Upchurch at Upchurch Law is a dedicated Florida estate planning lawyer with a wealth of imposing experience helping clients like you implement valid estate planning tools that accurately reflect their wishes. We also have the experience and legal insight to fiercely advocate for your legal rights of inheritance in response to your loved one’s passing. 
We’re on your side and here to help, so please don’t hesitate to contact or call us at 386-320-6169 for more information today.