Is it true that I can’t be the excutor of my stepfather’s Trust?

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Is it true that I can’t be the excutor of my stepfather’s Trust?

My stepfather selected me, the eldest of three stepchildren, to be the executor of his estate. His wife/my biologic mother had preceded him in death, and he has no other living blood relatives. The attorney we are working with to move the estate through probate has informed us that state law doesn’t allow a stepchild to be an executor, and that while many judges will make an exception to this rule, that the judge will not. He has told us that we need to find another blood relative of my deceased stepfather of which there are none or any state resident. He has also offered to serve as our representative if we would prefer that option. Am I correct in thinking that by agreeing to this I would have given control of the trust to the attorney? And if so, should I have concerns for his ability to not follow the directives of my stepfather’s Will?

Asked on October 21, 2016 under Estate Planning, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If your stepfather named you to be his executor in a valid will, you are his executor: a person can name *anyone* they like as executor (in honor of this election season, someone with a twisted sense of humor could name Donald Trump and Hillary Clinton as co-executors, for example), regardless of relation.
If you were not named in a will as executor--and other expressions of his wishes, whether oral, email, text, letter, etc. don't count; only a will can name an executor--the the court will appoint a personal represenentative. (By the way: FL uses the term "personal representative.") That will typically be the closest living blood relation, but does *not* have to be state resident: my own father just died in Florida without a will and the court appointed me his personal represenative even though I live in NJ.


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