Appointing An Out Of State Executor

One of the most important decisions an individual will make when creating their Last Will and Testament is who to name as the executor. The person making the Will, also known as the testator, is trusting the executor to carry out their final wishes. Therefore, it is important to name someone you believe will follow your instructions and honor your wishes. This person may happen to live in another state. Each state establishes its own criteria regarding who can be an executor. Some even prohibit naming an executor who lives in a different state. If you would like to learn more about naming an out-of-state executor in Florida or Minnesota, contact an estate planning attorney at Roulet Law Firm, P.A. by calling our Florida office at (941) 909-4644 or our Minnesota office at (763) 420-5087 to discuss your out of state executor concerns.

What Does an Executor Do?

An executor is the person who is responsible for carrying out the terms of the will. If there is no will, the executor will help to divide the decedent’s remaining property after their death according to state intestate law. An executor’s duties and responsibilities are laid out by state law, but they generally include:

• Submitting the original Last Will and Testament to the appropriate probate court
• Opening a probate case to begin the formal process
• Requesting letters testamentary to be given the official right to act on behalf of the estate
• Notifying beneficiaries and heirs of their appointment
• Notifying banks, employers, credit card companies, and government agencies of the decedent’s death and their appointment
• Preparing inventories and accountings of estate assets and debts
• Resolving claims from creditors
• Safeguarding and insuring the estate property
• Filing tax returns
• Distributing assets to beneficiaries or heirs
• Asking the court to close the probate case

Not all probate cases require a long, formal probate process. In Florida, a person can request “Disposition of Personal Property Without Administration,” under § 735.301 Fla. Stat. (2023), if the estate’s assets only consist of personal property, there are no non-exempt creditor claims, and the value of the property does not exceed the funeral expenses and medical expenses for the 60 days preceding the decedent’s death.

In Minnesota, an executor can submit a request to administer the estate with an Affidavit for Collection of Personal Property, available from the Minnesota Judicial Branch, if the estate does not include real property and is worth $75,000 or less. However, the executor making the request must also be the only person inheriting the estate or the deceased must have died without a will and the individual is their only heir. If these alternatives apply, an out-of-state executor may not have to go through the lengthy and complex process of probate administration.

Reasons Why Someone Might Appoint an Out-of-State Executor

There are a few reasons why someone might appoint someone who lives out of state. Some of the most common include:

• The decedent used to live in the state where the executor currently lives, and did not update their last will and testament after they moved
• The decedent trusts the out-of-state executor more than anyone else who lives in-state
• The out-of-state executor has special skills or knowledge, such as being a lawyer, exceptionally good at organization, or financial knowledge or experience as an accountant
• The estate is small and the decedent does not seek an in-state executor because they believe the imposition on the individual named will be relatively small

Considerations for Naming an Out-of-State Executor

Before naming an out-of-state executor, there are several things individuals may want to consider, including:

• Travel requirements – An out-of-state executor can do much of the work away from the state where the decedent lived, such as filling out forms, preparing tax returns, or handling communications. However, there will be times when the executor must appear in person, such as when attending a court hearing. They may also have to travel to tend to burial and funeral arrangements, to inventory estate assets, and perform other duties.
• Time requirements – Out-of-state executors may need to be prepared to take more time to carry out their requirements, especially when adding travel to the equation. They may also need more time to learn about state laws applicable to the case. If the executor has previously served in their resident state, they may be surprised at the different filing deadlines that apply in Florida or Minnesota.
• Lack of personal contact – A non-resident executor may not have a personal relationship or be in personal contact with the beneficiaries or heirs. If disputes arise, they may not be in a position to help mediate them.
• Extra expense – Extra travel and paying for a local attorney, accountant, or other financial professional can mean extra expenses, all of which come from the estate. The beneficiaries or heirs may bristle at these expenses.
• Bond – Non-resident executors may have to post a bond, which provides insurance to the estate for losses incurred because of the executor’s errors.

These are important considerations to carefully contemplate when choosing an executor. An experienced probate attorney from Roulet Law Firm, P.A. may be able to help you evaluate whether appointing an out-of-state executor makes sense in your situation or advise an alternative such as naming a co-executor who lives in the state. Naming a professional fiduciary or corporate executor is another option you can consider.

Florida Restrictions Regarding Naming an Out-Of-State Executor

Florida’s general requirements for an executor are that they:

• Are 18 years of age or older
• Be mentally and physically able to serve
• Not have a disqualifying criminal record

However, those are the requirements for Florida residents. Under § 733.304 of the Florida Probate Code, residents may only name an out-of-state executor if the person is related to the resident by blood, adoption, or marriage. Examples would include the resident’s:

• Spouse
• Biological child or grandchild
• Legally adopted child or adoptive parent
• Sibling
• Aunt or uncle
• Nephew or niece
• Further descendants related to these people by lineal consanguinity
• The spouse of one of these qualified relatives                                              

Minnesota Restrictions for Naming an Out-Of-State Executor

Minnesota law does not specifically prohibit naming an out-of-state executor. Minnesota § 524.3-203 does indicate the state prioritizes who can be appointed to administer the estate. There is also a formal proceeding in which the personal representative is appointed, per Minnesota statute 524.3-414. An interested party such as a beneficiary or heir could object to naming an out-of-state personal representative.

Consider a Trust to Avoid Probate

Many of our clients choose to avoid the issue altogether by utilizing a trust, rather than a will, for their estate planning needs. By setting up and properly funding a trust, they can ensure that their family does not need to go through probate to manage their affairs. Not only can this make it less expensive for their family, it keeps their affairs private and can be easier for out-of-state family members to manage an estate without having to deal with the probate courts.

Contact an Experienced Probate Attorney for Help

Naming an out-of-state executor can come with certain complications, but it could also be what you want and what is ultimately best for your estate. Speak with one of the experienced Florida and Minnesota estate planning attorneys with Roulet Law Firm, P.A. to review your situation, discuss your options, weigh the advantages and disadvantages of naming your proposed executor, and evaluate alternatives. Contact our office by calling our Florida office at (941) 909-4644 or our Minnesota office at (763) 420-5087 today. Or, you can fill out the contact form on this page and a member of our team will reach out to you to schedule a consultation.

If you are not yet ready to schedule a consultation and would like some additional information, here are two additional resources for you:

If you would like to learn how to make it as easy and inexpensive as possible for your family to manage your affairs during incapacity and after passing, while ensuring your assets only go to whom you want and how you want, click here to register for our FREE online masterclass.

If you would like to learn how to protect your home and life savings from long-term care and nursing home costs, click here to download our FREE guide Save our Home: How to Protect Your Home and Life Savings From Long-Term Care and Nursing Home Costs.