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January 28, 2024

In Florida, the determination of who is given preference and priority to serve as a personal representative in probate proceedings is primarily guided by Section 733.301 of the Florida Statutes. In the probate of an intestate estate, the statute lays out the following order of preference in appointment: firstly, the surviving spouse, then the person selected by a majority in interest of the heirs, and lastly, the heir nearest in degree. If none of the preferred persons applies, the court shall appoint a capable person to serve as the personal representative.

It is also important to note that Rule 5.201 stipulates that no notice needs to be given of the petition for administration or the issuance of letters when it appears that the petitioner is entitled to preference of appointment. However, before letters are issued to any person who does not hold entitlement to preference, formal notice must be served on all known persons qualified to act as personal representatives and entitled to preference equal to or greater than the applicant, unless those entitled to preference waive it in writing.

The petition for administration must also contain a statement of the priority, under the Florida Probate Code, of the person whose appointment as the personal representative is sought, and whether other persons have equal or higher preference.

In certain exceptional circumstances, such as when the heirs are members of two distinct families with adverse interests, the court has the discretion to refuse to make the appointment if the record supports the conclusion that the person with statutory preference lacks the necessary qualities and characteristics.

In terms of eligibility, most family members, regardless of their residence, along with other individuals who are residents of Florida, including friends and corporate fiduciaries, are eligible to serve as a personal representative, subject to certain statutory limitations. However, an attorney or a person related to the attorney cannot be compensated for serving as a personal representative if the attorney prepared or supervised the execution of the will that nominated the attorney or person related to the attorney as a personal representative unless the attorney or person nominated is related to the testator.

For nonresident decedents leaving assets in Florida, a personal representative specifically designated in the decedent's will to administer the Florida property shall be entitled to have ancillary letters issued, if qualified to act in Florida. If the decedent dies intestate and the foreign personal representative is not qualified to act in Florida, the order of preference for appointment of a personal representative as prescribed in Florida's probate code shall apply.

In the case of a probate court choosing to appoint someone other than the preferred person, the record must show that the preferred person is not fit to serve as a personal representative. This rule also applies when the statutorily preferred estate representative is being considered to serve as the estate administrator.

Under Florida law, the appointment of a personal representative in probate proceedings follows a specific order of preference. The person selected by a majority in the interest of the heirs is given priority after the surviving spouse. This indicates that if a majority of interested heirs or beneficiaries agree on a specific person as the personal representative, this choice would generally be upheld by the court despite any dissent from a minority of interested parties.

However, the court does retain discretion in making the appointment. Even a person occupying a position of statutory preference can be refused an appointment if the record supports the conclusion that the person lacks the necessary qualities and characteristics to serve as a personal representative. This suggests that if the dissenting individual can provide evidence that the majority's choice lacks the necessary qualities and characteristics to serve effectively as a personal representative, the court may consider this evidence in making its appointment decision.

Furthermore, under Rule 5.201, if the person nominated as a personal representative is not entitled to preference, formal notice must be served on all known persons qualified to act as personal representative and entitled to preference equal to or greater than the applicant, unless those entitled to preference waive it in writing.

In conclusion, while a majority's preference is generally given significant weight in appointing a personal representative under Florida law, the court retains ultimate discretion in making the appointment and may consider any relevant factors, including any objections raised by dissenting interested parties.

If you have questions about Probate issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.