Who Has Preference as a Personal Representative in Florida
In this article we’ll break down:
- Definition of a Personal Representative
- Importance of Selecting the Right Personal Representative
- Statutory Preferences for Personal Representatives in Florida
- Discretion in Appointment of a Personal Representative
- Removal or Non-Appointment of Named Personal Representative
- Renunciation of Appointment
- Case Example of Personal Representative Preference in Florida
When someone dies owning assets in Florida, family members and beneficiaries often have questions about the Florida probate process. Many of those questions relate to the person appointed to make decisions on behalf of the estate.
In Florida, that person is the personal representative, which is also known as an “executor ”or“ administrator” of the estate. Often short end to “PR,” a personal representative administers the decedent’s estate according to the decedent’s stated wishes and the law, which includes paying creditors, collecting assets, paying any taxes and distributing the remaining assets as required by the decedent’s will or by Florida’s intestacy law (which happens where the decedent did not have a will).
Who has a preference to be appointed as a Florida personal representative? Here’s what you need to know to answer that question.
Definition of a Florida Personal Representative
In a formal probate administration, a personal representative acts in a fiduciary capacity for the deceased person’s estate. That means they have obligations to protect the creditors of the deceased, as well as taxing authorities and the estate’s beneficiaries and heirs.
According to Florida probate law, a personal representative can be any person over the age of 18 who was either appointed by the deceased in his or her will, selected by the majority of beneficiaries, or appointed by the probate court. They must be physically and mentally able to perform the duties and not have been convicted of a felony or abuse, neglect, or exploitation of an elderly person or disabled adult.
They must also be a Florida resident unless they are an adoptive child or parent of the decedent, related by lineal consanguinity, or the spouse, sibling, aunt, uncle, nephew, or niece of the decedent.
Importance of Selecting the Right Personal Representative
Whether or not the decedent has a will, selecting the right personal representative is an important factor in having a smooth estate administration as it reduces the likelihood of a conflict among beneficiaries and other interested parties. Disagreements over the appointment of a personal representative can be expensive and extend the probate process.
Note: The failure to name a personal representative in a will does not invalidate the will. However, it does prolong the probate process and it perhaps makes the administration more complicated, especially when it comes to the issue of compensation for the PR.
Statutory Preferences for Personal Representatives in Florida
Statutory preference is the order of priority enumerated in the law when appointing someone to serve as a personal representative. Statutory preference applies to both testate estates (meaning, the decedent had a will) and intestate estates (the decedent had no will).
In either case, Florida Statute 733.301 states the order of preference for who should be appointed PR (as long as they qualify under Florida law i.e over 18, not a felon, etc.) as follows:
(1) In granting letters of administration, the following order of preference shall be observed:
(a) In testate estates:
- The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.
- The person selected by a majority in interest of the persons entitled to the estate.
- A devisee under the will. If more than one devisee applies, the court may select the one best qualified.
(b) In intestate estates:
- The surviving spouse
- The person selected by a majority in interest of the heirs
- The heir nearest in degree. If more than one applies, the court may select the one best qualified
In an estate in which no one applies for appointment as the personal representative, a creditor may do so. Additionally, state and national banks, trust companies, and savings and loan associations authorized and qualified to exercise fiduciary powers in Florida may act as personal representatives.
However, in some cases, the above-listed people, regardless of their order of preference, are not qualified to be a personal representative.
Persons Not Qualified for Appointment
Under Florida statutes 733.303 and 733.304 people who are not qualified for appointment as a personal representative include:
- Someone who has been convicted of a felony.
- Someone who has been convicted in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult, as those terms are defined in s. 825.101.
- Someone who is mentally or physically unable to perform the duties.
- Anyone under the age of 18 years.
- Non-Florida residents unless the person is:
(1) A legally adopted child or adoptive parent of the decedent;
(2) Related by lineal consanguinity to the decedent;
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
(4) The spouse of a person otherwise qualified under this section.
Discretion in Appointment of a Named Personal Representative
Sometimes, issues arise regarding the person or persons seeking to be appointed personal representative. Under Florida law, the court has the authority to refuse to appoint someone as a personal representative. This can be true even in those cases where the decedent, in his or her will, named the party to act as PR.
What Happens When Statutory Preferences Are Not a Viable Option
When the statutory preferences are not a viable option, the court has the discretion to appoint a personal representative.
However, that discretion also gives the court the power to refuse to appoint a nominated person. That’s true even if the nominate person is not within the enumerated list of statutory disqualifications. This can happen where, for example, the party seeking appointment as PR is in conflict with the estate or is hostile to the beneficiaries or other interested parties.
Factors Considered in Appointing a Personal Representative
Factors the court considers in appointing a personal representative include the person’s:
- Suitability of persons seeking appointment
Grounds for Removal or Non-Appointment of a Named Personal Representative
Grounds for non-appointment or removal of a personal representative include:
- An adverse interest of some kind
- Hostility to those interested in the estate
- Dispute with beneficiaries of the estate when that dispute is combined with other factors that could lead to unnecessary litigation and impede the estate’s administration
- Poor moral character
- Lack of ability or experience
According to Florida case law, the court has the inherent authority to consider a variety of factors when evaluating a personal representative. However, “only in exceptional circumstances does a court have the discretion to refuse to appoint a person as personal representative who was named in the decedent’s will.” See Schleider v. Estate of Schleider, App. 4 Dist., 770 So.2d 1252 (2000).
Renunciation of Appointment
The renunciation of appointment allows a named personal representative to renounce being appointed as PR. In Florida, it also refers to the process in which a personal representative voluntarily resigns from the role or withdraws his or her consideration for the appointment.
If someone who was originally qualified when appointed as a personal representative then later becomes unqualified, he or she must file and serve a notice to all interested persons stating that any person may petition to have him or her removed.
Case Example of Personal Representative Preference in Florida
In Long v. Willis, there was a dispute over the estate of Thomas Scott Long. Long’s sister, Robin Willis, filed a petition to serve as personal representative of Long’s estate. She stated that she had the approval of all of Long’s children. Long’s second wife, Renee, objected to the petition and filed a counter petition requesting that she be appointed personal representative.
According to the court, although the probate court almost always appoints, as personal representative, the person entitled to a statutory preference in appointment, in exceptional circumstances where the heirs are essentially members of two distinct families with adverse interests, and if the record supports the conclusion that the person with statutory preference lacks the necessary qualities and characteristics, the court has discretion to refuse to make the appointment.
Additionally, the court held that the statute governing preference in the appointment of a personal representative only determines the person who has a preference in the appointment; it does not expressly or by implication confer an absolute right of appointment to persons within the enumerated classes. See Long v. Willis – 100 So.3d 4.
The Importance of an Experienced Probate Lawyer in the Selection and Appointment of a Florida Personal Representative
- The lawyer will have experience handling and avoiding a variety of issues that can put the personal representative at risk of personal liability for any wrongdoing or mistakes in the estate administration.
- The lawyer will have experience protecting assets, paying valid and timely filed claims, and minimizing the risk of financial loss through mismanagement of the estate.
- The lawyer will have experience with dispute resolution should any conflicts arise between beneficiaries, personal representatives, creditors and other interested parties.
- The lawyer will know how to timely dispose of wasting assets and/or liabilities of the estate, including the sale or disposal of any automobiles. (And insuring those assets while they remain part of the estate.)
- The lawyer will know how to quickly and efficiently protect, sell and distribute real estate, including the decedent’s homestead.
- The lawyer will have experience in hiring other professional to administrate the estate, including accountants, appraisers, realtors and other licensed professionals.
To learn more about the Florida probate process see our extensive collection of free probate resources.
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Larry Tolchinsky is an experienced Florida probate attorney with years of experience dealing with the Florida Probate Code, its ancillary administration statute, and its related case law. Please feel free to contact Larry Tolchinsky today for a free consultation.
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