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What is the Preference of Appointment of the Personal Representative in Formal Probate?

What is the Preference of Appointment of the Personal Representative in Formal Probate?

I am often asked during an initial consultation why it is important to create a will in Florida. After all, for some people, the Florida default succession laws, will ultimately allow intended spouses and children to inherit without having a will which enumerates such. One of the most important reasons to do so, is to select a personal representative to serve if formal probate is necessary. Without the selection of a personal representative in a will, you will drastically increase your chances that your beneficiaries will disagree with each other on a selection and complicate the probate process. I see this scenario quite often in my practice; children and spouses of the deceased fighting between each other as to who should serve as personal representative. A designation in a will document can prevent this type of fight from occurring.

If a conflict does arise, the question remains as to who can serve as personal representative and what is the order of priority? The Florida statute that speaks to this issue is Fla. Stat. Fla. Stat. §733.301. If a person passes with a validly executed will, strict preference is given to the appointment under the will. This is, of course, unless there is some glaring character or other defect in the selection or the appointed person cannot qualify to serve. If there is no valid appointment under the will, a majority of the beneficiaries may select the person to serve. If a majority of the beneficiaries cannot agree on a selection, the court will decide on the best selection from those beneficiaries willing to serve.

The real fun (very sarcastic) starts when a person passes with no will. Fla. Stat. §733.301 tries to provide some guidance under these circumstances as well. Under this statute, the surviving spouse has the first preference to serve as personal representative. If there is no surviving spouse, the person selected by a majority of the heirs will have preference. If no majority can be found, then the heir in nearest degree will be entitled to serve. If more than one heir applies, the court has jurisdiction to select the best qualified to serve.

The point is emphasized that if you pass without a will, you are opening yourself up to the real possibility that a disagreement will ensue over who should serve as personal representative. Contested proceedings to select a personal representative can be expensive, time-consuming, and place a real drag on the quick and efficient administration of an estate. Make sure your preferences are known in a will to avoid these types of quagmires. If you find yourself in a situation where probate is necessary, and you are uncomfortable with a person applying to be personal representative, consult with an attorney immediately to know your options and secure your legal rights.

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