Can a Florida Probate Court Appoint Someone Other Than a Spouse as Personal Representative?

In making a will, you have the opportunity to nominate someone to serve as the personal representative of your probate estate. For the most part, you can appoint anyone you wish to serve in that role. Florida law bars certain classes of people from acting as a personal representative, including minors and anyone convicted of a felony. But in general, you are not required to name any specific relative or individual.

Of course, if you fail to leave a will, then Florida’s intestacy laws decide who has “preference” when it comes to serving as a personal representative. A preference does not mean an absolute right. The probate court must still decide whether a person is fit to serve. But assuming fitness, the statutory preference order must be followed.

This subject came up in a recent Florida appeals court decision, Kavanaugh v. Thomas, where the probate court stepped outside the statutory preference scheme. In this case, the decedent passed away without leaving a will. The decedent was married at the time of his death. Under Florida law, a surviving spouse has first preference to be named personal representative of the deceased spouse’s intestate estate.

In this case, however, the probate court appointed the decedent’s mother as personal representative. It was not clear to the appellate court why the probate judge passed over the spouse. As a result, there was “insufficient basis to conclude the wife does not possess the qualities and characteristics to serve as the personal representative.” The probate court therefore committed legal error in appointing the decedent’s mother to the position.

Understanding the Order of Preference for Intestate Estates in Florida

As far as the order of preference goes, if the decedent was unmarried, then the person selected by a majority in interest of the heirs has the next-highest preference to serve as personal representative. For example, say that a decedent had three adult children. A majority of the children–2 out of the 3–could submit a candidate for personal representative to the probate court for approval. If the heirs cannot agree on a candidate, then the probate court will appoint the heir nearest in degree to the decedent; and if multiple heirs apply, the judge will choose the one they consider “best qualified.”

To clarify, an “heir” in this context means a person who is entitled to inherit from an estate where there is no will. Normally, a person’s heirs are the surviving spouse and any lineal descendants–children, grandchildren, et al. If the decedent was unmarried and has no descendants, their heirs would be any surviving parents, followed by their surviving siblings and their descendants.

Contact a Florida Estate and Trust Litigation Attorney Today

Intestate estates often raise significant legal issues that sometimes need to be resolved in a contested proceeding. An experienced Pompano Beach no will lawyer can advise and represent you if you are a party to such a dispute. If you would like to speak with an attorney as soon as possible, contact the offices of Mark R. Manceri, P.A., to schedule a consultation.

Source:

5dca.flcourts.gov/content/download/2437133/opinion/Opinion_2023-2032.pdf