FLORIDA LAW ON WHO IS IN CHARGE OF AN ESTATE

Who gets to be personal representative of an estate in Florida?

The Personal Representative administers the estate and is ‘in charge’ while the probate of an estate is done. But how is the personal rep chosen and who gets a say? Florida Statutes Section 733.301 lays out all the ground rules for this process of selection. Just as the State of Florida prefers the intentions of the testator be adhered to via a last will and testament or a trust, the same preference exists when choosing a personal rep. So lets break this up into two parts, one for testate estates (a will exists and is admitted to probate) and one for intestate estates (no will exists).

Testate Estates:

1. If the will names or nominates a person to be the Personal Representative, then the Court will do its utmost to abide by the will and make that person the Personal Representative.

What if that person is dead, or doesn’t want to do it? Many wills nominate a successor choice of personal rep, but let’s set that aside and assume no one name by the will is able or want to do it, or the will just doesn’t name anyone at all. What now?

2. In that case 733.301(1)(a)(1) says that the beneficiaries of the estate may nominate a personal rep by majority vote.

3. If no one wants vote, or no one can win a majority, then 733.301 allows the Court to choose who it thinks is the most qualified to administer the estate from the pool of beneficiaries.

That’s it for testate estates, now let’s examine how it works for intestate estates.

Intestate Estates: 1. If there is no will, than the Surviving Spouse will be the Personal Representative, as long as they are willing. 2. If there is no spouse, or the spouse isn’t willing, then the heirs may nominate a person by majority vote. 3. If nobody is nominated by vote, than the heir nearest in degree to the decedent has preference. If more than one person is in that category, than the Court will select from that pool of people the one it believes is most qualified to administer the estate.

IN EITHER TESTATE OR INTESTATE ESTATES

If there is no one in the above categories except for a minor, than the Guardian of the property of that ward would have preference, or they may select a personal rep. If there is no one in any of the above categories, and no minors who would otherwise be qualified, than the Court will appoint a capable person.

-BUT-

The Court cannot appoint anyone who:

• Works for the Court or hold a public office under the court.
• Is employed by a judge exercising probate jurisdiction, or holds public office under such a judge.

CHANGES IN PREFERENCE AFTER A PERSONAL REPRESENTATIVE HAS BEEN APPOINTED

• If someone was entitled to preference, never waived their preference, and was not given Formal Notice, than that person is entitled to preference and may replace the existing personal rep after a hearing on the matter.
• If a will is later admitted to probate in an intestate administration, or a new will is admitted that replaces an older one that had been admitted to probate, then the existing personal representative is discharged, and the selection process must begin again.

There are some clarifications provided by existing caselaw.

• In Long v. Willis it was held that an employee of the Clerk of Court is not an employee of the court for purposes of disqualification and was allowed to be the Personal Representative. Long v. Willis, 100 So.3d 4 (Fla. 2d DCA 2011).
• Long also held that the parent (who herself was not a beneficiary) of minor heirs is not entitled to select a personal representative on their own, but that the Court must appoint a Guardian of property for minor children who can vote for a personal representative on their behalf.
• Long also held that all of the above order of preference rules listed in Fla. Stat. 733.301 determine who has preference of appointment to be Personal Representative. It is not an express right to appointment, but a Court in exceptional circumstances where heirs are essential two distinct families with adverse interests, can ignore the order of preference. However, it is an abuse of discretion for a Court to ignore order of preference if that person is otherwise qualified and the adverse interests are not exceptional.

It is always preferable to draft a will, and you should remember to name a few people as personal representatives in that will to avoid any conflicts that might arise. For reference here is Florida’s preference of appointment statute in full: 733.301 Preference in appointment of personal representative.— (1) In granting letters of administration, the following order of preference shall be observed: (a) In testate estates: 1. The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will. 2. The person selected by a majority in interest of the persons entitled to the estate. 3. A devisee under the will. If more than one devisee applies, the court may select the one best qualified. (b) In intestate estates: 1. The surviving spouse. 2. The person selected by a majority in interest of the heirs. 3. The heir nearest in degree. If more than one applies, the court may select the one best qualified. (2) A guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative. (3) In either a testate or an intestate estate, if no application is made by any of the persons described in subsection (1), the court shall appoint a capable person; but no person may be appointed under this subsection: (a) Who works for, or holds public office under, the court. (b) Who is employed by, or holds office under, any judge exercising probate jurisdiction. (4) After letters have been granted in either a testate or an intestate estate, if a person who was entitled to, and has not waived, preference over the person appointed at the time of the appointment and on whom formal notice was not served seeks the appointment, the letters granted may be revoked and the person entitled to preference may have letters granted after formal notice and hearing. (5) After letters have been granted in either a testate or an intestate estate, if any will is subsequently admitted to probate, the letters shall be revoked and new letters granted.

Our office litigates Probate Administrations throughout the State of Florida, importantly, you may waive your rights to contest the appointment of a Personal Representative if you fail to timely assert your objection. If you are dealing with the appointment of a Personal Representative or the challenge to appointment we would to help you. We offer no obligation free consultations.

-Charles Adams, Esq.