Florida Estate Planning Lawyer Blog
A family member or someone you care for has just passed away and you have been served with a copy of the notice of administration of his or her estate. The copy should include the name and address of the preferred or nominated personal representative (PR) of the decedent’s estate.1 If you disagree with the qualifications of the PR , then you can object to the appointment.2 However, you must do so within the three months after the date of service.3 Below, you will find the available grounds for objecting to the appointment of the PR.
NON-STATUTORY GROUNDS
Intestate Estate
A decedent has an intestate estate in Florida if he or she does not have a valid will when he or she dies. The appointment of the PR for an intestate estate is a discretionary act of the probate court and is regulated by section 733.301 of the Probate Code. This section states that the probate court must follow the following order of preference when appointing a PR in an intestate estate:
A. Surviving spouse;
B. Person selected by the majority of the beneficiaries;
C. The heir nearest in degree. If more than one applies, the court may select the one best qualified.
Someone with preference to be appointed as the PR of the intestate estate does not have an absolute right to be appointed. The court will not appoint the preferred PR if he or she is not qualified by character, ability, or experience to serve as the estate fiduciary.4 Therefore, you must show that the preferred PR is not qualified to perform his or her duties under the decedent’s estate to prevent his or her appointment.
Testate Estate
A decedent has a testate estate in Florida if he or she has a valid will when he or she dies. In a testate estate, the decedent nominates the PR of his or her estate in the will and the court will afford great deference to the selection. The court has the discretion to refuse to appoint the PR nominated in the will. However, the court will only exercise this discretion in “exceptional circumstances.” Courts have broad discretion in refusing to appoint the selected PR on non-statutory grounds. If you successfully allege hat one of the below circumstances has taken place, then the court will not appoint the nominated PR.
- Unforeseen circumstances arise, which clearly would affect the decedent’s decision and decedent had no reasonable opportunity prior to his or her death to change the will.
- There are facts at the time of the appointment that would support removal of the PR after he or she has been appointed.
- The court concludes that the selected representative does not have the qualities and characteristics necessary to properly perform the duties of an administrator.
- There is a dispute between the PR of the estate and one of the beneficiaries that will cause unnecessary litigation and impede the administration of the estate. The court would consider the totality of the circumstances to make a determination.
STATUTORY GROUNDS
- If you successfully allege one of the below mentioned statutory grounds, which prevent the appointment of the PR, then the court will not appoint him or her.
- Fla. Stat. § 733.303: PR has been convicted of a felony, is mentally or physically unable to perform the duties, or is under the age of eighteen years.
- Fla. Stat. § 733.304: PR is a nonresident of Florida and he or she is not a legally adopted child or adoptive parent of the decedent; related by lineal consanguinity to the decedent; 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 the spouse of a person otherwise qualified under this section.
- Fla. Stat. § 733.307: The PR of the estate of a deceased PR is not authorized to administer the estate of the first decedent. On the death of a sole or surviving PR, the court shall appoint a successor PR to complete the administration of the estate.
CONTACT THE Law Office of David M. Goldman PLLC
If you have been served with a copy of a notice of administration of someone’s estate and desire to object to the appointment of the PR, then you should strongly consider hiring an estate attorney to assist you with this issue. For an estate attorney in Florida, contact the Law Office of David M. Goldman PLLC at (904) 685 – 1200.