Understanding the Appointment of the Personal Representative

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July 3, 2023

Florida's Probate Statute 733.301 addresses an integral part of the probate process: the appointment of the personal representative, a crucial figure who undertakes the responsibility of administering the decedent's estate. This blog post aims to shed light on the intricacies of this statute, highlighting the differences in appointment preference between Florida residents and non-residents, and discussing the eligibility criteria for this crucial role.

Personal Representative: An Overview

To begin, a personal representative, also known as an executor or administrator, is appointed by the probate court to administer the decedent's estate. This includes identifying and gathering the decedent's assets, paying valid claims and taxes, and distributing the remaining assets to the beneficiaries.

Fitness, Persons Entitled to Appointment

A trial court has the discretion to appoint someone other than the statutorily preferred person to act as personal representative of an estate, but where there is no evidence that the preferred person is not fit to be personal representative, the court is not at liberty to ignore the statutory directive in order to appoint a person whom the court deems more morally worthy.  DeVaughn v. DeVaughn, App. 5 Dist., 840 So.2d 1128 (2003).

Preference in Appointment: Understanding Statute 733.301

Statute 733.301 outlines the order of preference in the appointment of the personal representative in Florida. It provides that, in general, if the decedent has left a will (a situation known as testate), the court will honor the decedent's choice for a personal representative. The court takes this seriously, see the following cases:

A testator has the right to name the person who shall administer his estate provided such person is not disqualified by law.  Werner v. Estate of McCloskey, App. 1 Dist., 943 So.2d 1007 (2006).

The testator’s selection of a personal representative should be afforded great deference. Only in exceptional circumstances does a court have the discretion to refuse to appoint a person as a personal representative who was named in the decedent's will  Schleider v. Estate of Schleider, App. 4 Dist., 770 So.2d 1252 (2000).

The testator’s judgment in selecting a personal representative should not be disturbed, absent substantial, compelling justification.  Fain v. Hall, M.D.Fla.1979, 463 F. Supp. 661.

If the decedent died without a will (intestate), if the will does not name a personal representative, or if the named representative is unable or unwilling to serve, the statute provides a priority list. The surviving spouse has the highest priority, followed by the person chosen by a majority of the heirs, and finally, the heir nearest in degree. However, The appointment of a personal representative for an intestate estate is a discretionary act of the probate courts. DeVaughn v. DeVaughn, App. 5 Dist., 840 So.2d 1128 (2003).

Residency Requirement and Non-Florida Residents

Importantly, Statute 733.301 contains specific provisions regarding the residency of the personal representative. While it allows Florida residents to serve as personal representatives irrespective of their relation to the decedent, it places more restrictions on non-Florida residents.

However, according to statute, 733.304 non-Florida residents can only serve as personal representatives if they are a legally adopted child or adoptive parent of the decedent, a related by lineal consanguinity to the decedent, or a spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person. This means, for example, that a close friend of the decedent who lives out of state would not be able to serve as a personal representative unless they meet one of these specific relationships.

Disqualification Criteria: Convicted Felons and Others

Statute 733.301 further dictates that certain individuals are not qualified to act as personal representatives. One of the main disqualifications is that a person who has been convicted of a felony cannot serve as a personal representative. This reflects the importance of the role and the necessity for the representative to be someone of trustworthiness and good character.

The Impact of These Provisions

Understanding these provisions is crucial for anyone involved in a Florida probate case. For those drafting a will, it's important to choose a personal representative who will be eligible under Florida law. For those involved in an intestate case, knowing the order of preference can give you a sense of who is most likely to be appointed as a personal representative.

While the process of appointing a personal representative can be complicated, Florida's Probate Statute 733.301 provides a clear guideline. It prioritizes the decedent's choice and the closest relatives, ensuring that the estate is likely to be managed by someone with a vested interest in carrying out the decedent's wishes and treating all beneficiaries fairly.

The Florida residency requirement for non-relatives ensures that the personal representative is likely to have a connection to the state, which can be beneficial in managing the estate's affairs. Meanwhile, the disqualification of convicted felons ensures a certain level of integrity in the role as there is a fiduciary relationship the Personal Representative has with the beneficiaries of the estate.

Navigating Florida's probate process can be complex, and understanding the laws governing the appointment of a personal representative is just one step. However, it's a crucial step, as the personal representative plays a vital role in the administration of the decedent's estate. The personal representative of an estate acts in a fiduciary capacity and has obligations to the creditors, the interested taxing authorities, and the heirs of the estate.  DeVaughn v. DeVaughn, App. 5 Dist., 840 So.2d 1128 (2003).

In conclusion, while Florida's probate process may seem daunting, a closer look at the individual statutes, including 733.301, can offer a clearer understanding of the process. As always, the guidance of an experienced probate attorney can be invaluable in navigating these complexities.

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.