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Our trust department has been asked to act as executor for an individual who died in Florida. We believe the individual had residences in Illinois and Florida, but we have not seen the individual’s will and have no other information at this point. Can we serve as executor? In other words, how far do our trust powers extend geographically?

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We believe your answer will depend on the specific facts in this case, and we encourage you to consult with Florida counsel for further guidance.

The Illinois Corporate Fiduciary Act authorizes your bank to engage in fiduciary activities — including serving as an executor — in another state, but those out-of-state fiduciary activities also are “subject to complying with applicable laws of that state.” Consequently, your bank’s authority to act as an executor in Florida in the capacity of a corporate fiduciary depends on whether Florida law requires out-of-state corporate fiduciaries to obtain approval before offering fiduciary activities in that state.

As noted in the FDIC’s Trust Examination Manual, trust departments of state-chartered banks typically need to obtain separate approvals from other states before engaging in trust activities outside of their home states. We are not experts in Florida law, but it appears to us that while your bank may not establish a trust office or market its corporate fiduciary business in that state, it may act as a personal representative of an estate in Florida under limited circumstances, which may or may not apply in this case.

It appears that, as a general rule, only Florida-chartered or nationally chartered institutions (or institutions that resulted from a merger with a Florida bank) may engage in fiduciary activities in Florida. Additionally, Florida has not signed an interstate agreement for the supervision of multi-state trust institutions created by the Conference of State Supervisors (CSBS), which further indicates that Florida is not open to out-of-state, state-chartered banks engaging in corporate fiduciary activities there. 

However, Florida’s general prohibition regarding out-of-state corporate fiduciaries has an exception for corporate fiduciaries not licensed in that state when acting as a personal representative for the estate of a nonresident decedent in the state of the domicile of the decedent.  If the decedent was domiciled in Illinois, this exception would appear to apply, enabling you to obtain a Florida court’s appointment as executor or the issuance of letters of office with respect to the decedent’s property located in Florida. Notably, in such case, you also would need to be appointed as executor of the Illinois resident’s estate by an Illinois court.

Again, we are not qualified in Florida law, we do not have sufficient facts here, and we cannot state with complete certainty whether a Florida court would be willing to appoint your bank — an out-of-state, state-chartered bank with fiduciary powers — as the executor of this estate with respect to the decedent’s Florida property. If the decedent was domiciled in Illinois and you wish to proceed as executor of the estate, you should engage local counsel in Florida.

For resources related to our guidance, please see:

  • Illinois Corporate Fiduciary Act, 205 ILCS 620/4A-1 (“A corporate fiduciary may act as a fiduciary or otherwise engage in fiduciary activities in this or any other state or foreign country, subject to complying with applicable laws of that state or foreign country, at an office established and maintained pursuant to this Act, at a branch, or at any location other than an office or branch. . . .”)
  • In re Estate of Elson, 120 Ill.App.3d 649, 654 (2nd Dist. 1983) (“An Illinois circuit court in probate may exercise jurisdiction over the estate of a decedent either when the deceased was domiciled in Illinois or at the time of her death owned property in this State.”)
  • FDIC Trust Examination Manual, Subsection 10 D.2 (last updated December 6, 2013) (“State nonmember banks, and other companies, must obtain authority to exercise trust powers from the applicable state in which they operate.  States may limit the authority of out-of-state entities to engage in fiduciary activities within their borders. Therefore, banks or other state-chartered entities which legally offer trust services in one state, typically need to obtain separate approval from another state before conducting trust business there.”)
  • Fla. Stat. § 733.305(1) (“All trust companies incorporated under the laws of Florida, all state banking corporations and state savings associations authorized and qualified to exercise fiduciary powers in Florida, and all national banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida shall be entitled to act as personal representatives and curators of estates.”)
  • Fla. Stat. § 660.41 (Similar to Illinois, Florida has a general prohibition on corporations serving as fiduciaries [see below] that “does not apply to banks or associations and trust companies incorporated under the laws of this state and having trust powers, banks or associations and trust companies resulting from an interstate merger transaction with a Florida bank . . . and having trust powers, or national banking associations or federal associations authorized and qualified to exercise trust powers in Florida.” )
  • Fla. Stat. § 660.41 However, Florida’s general prohibition has an exception for out-of-state corporate fiduciaries not licensed in Illinois when acting as a personal representative of the estate of a nonresident decedent in the state of the domicile of the decedent.  (“Corporations; certain fiduciary functions prohibited. — All corporations are prohibited from exercising any of the powers or duties and from acting in any of the capacities, within this state, as follows:  (1) As personal representative of the estate of any decedent, whether such decedent was a resident of this state or not, and whether the administration of the estate of such decedent is original or ancillary; however, if the personal representative of the estate of a nonresident decedent is a corporation duly authorized, qualified, and acting as such personal representative in the jurisdiction of the domicile of the decedent, it may as a foreign personal representative perform such duties and exercise such powers and privileges as are required, authorized, or permitted by § 734.101.”)
  • Fla. Stat. § 734.101 (“Foreign personal representative. — (1) Personal representatives who produce authenticated copies of probated wills or letters of administration duly obtained in any state or territory of the United States may maintain actions in the courts of this state. (2) Personal representatives appointed in any state or country may be sued in this state concerning property in this state and may defend actions or proceedings brought in this state.”)