Probate, trust, guardianship and inheritance litigation
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Is a Florida Probate Court Required To Appoint the Nominated Personal Representative In Decedent’s Will?

By:  Jeffrey Skatoff, Esq.

In Araguel v. Bryan, a July 13, 2022 opinion from the Florida First District Court of Appeal, the appellate court determined that the probate court lacked discretion to refuse to appoint the personal representative nominated in the decedent’s will.  This case serves as a reminder that a Florida probate court generally lacks discretion to refuse to appoint the nominated personal representative in a testate estate.

The Facts of Araguel v. Bryan

Decedent’s son, Patrick, petitioned for the testate administration of his mother’s estate.  Patrick requested that the nominated personal representative, Jerry D. Sanders, be appointed as the personal representative of the estate.  Decedent’s other son, Lesley, objected to Sanders’ appointment.

After hearing, the Florida probate court denied the appointment of the nominated personal representative.  Although the Florida probate court found that the nominated personal representative was qualified to serve under the Florida Probate Code, the court determined there were “tangible and substantial reasons to believe that damage [would] accrue to the estate if Jerry D. Sanders were appointed Personal Representative in this case, because the facts presented display[ed] an adverse interest to the Estate.”  Specifically, the Florida probate court found that (1) Sanders would be a material witness regarding whether certain property was an estate asset based on a conversation Sanders had with the decedent; and (2) Sanders knew that Appellant had used an invalid durable power of attorney, which did not have the required number of witness signatures, to handle the decedent’s affairs.

Who Has Preference To Be Appointed As Personal Representative In a Florida Testate Estate?

The nominated personal representative in the will has preference to be appointed as personal representative in a Florida testate estate. Section 733.301(1)(a).

Can the Florida Probate Court Refuse To Appoint the Nominated Personal Representative?

Yes, the Florida probate court can refuse to appoint the nominated personal representative under the will, but only in limited circumstances. The Florida appellate court explained the general rule:

The general rule is that trial courts are without discretion to refuse to appoint the personal representative specified by the testator in the will unless the person is expressly disqualified under the statute or discretion is granted within the statute.” In re Estate of Miller, 568 So. 2d 487, 489 (Fla. 1st DCA 1990). In Werner v. Estate of McCloskey, 943 So. 2d 1007 (Fla. 1st DCA 2006), this court explained:

Nothing in section 733.301(1)(a) purports to vest discretion in the trial courts to disregard the preference there specified, as long as the personal representative nominated by the decedent is statutorily qualified to serve. Sections 733.302 and 733.303(1), together, set out the qualifications required of one who wishes to serve as a personal representative. Section 733.302 requires that the person be “sui juris” and “a resident of Florida at the time of the death of the person whose estate is to be 3 administered.” It is undisputed that appellant satisfied these two requirements. Section 733.303(1) states that one who “[h]as been convicted of a felony,” “[i]s mentally or physically unable to perform the duties,” or “[i]s under the age of 18 years” is not qualified to serve. There is no suggestion that appellant suffers from any of these deficiencies. In short, there is nothing in the relevant provisions of the Florida Probate Code that suggests that a person named in a decedent’s will as personal representative need not be appointed if he or she has a conflict of interest with the estate. We must, of course, give effect to the intent of the legislature as expressed by the words used. Id. at 1008; accord McCormick v. McCormick, 991 So. 2d 437, 439 (Fla. 1st DCA 2008).

In light of the above, the Florida appellate court concluded that the probate court erred when it failed to appoint the nominated personal representative based on a perceived conflict of interest when the nominated personal representative was qualified to serve, and noted that there was no evidence of “an occurrence which clearly would have changed the testator’s mind had [she] been aware” of the alleged event.  Under these circumstances, the Florida probate court lacked discretion to deny the appointment of the nominated personal representative.

The appellate court also distinguished and criticized Schleider v. Estate of Schleider, a case from the Fourth DCA, as being inconsistent with the court’s binding precedent:

To the extent the trial court relied upon Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000), in concluding that it had discretion to deny the appointment of the person named in the decedent’s will, that reliance is misplaced because Schleider recognized a degree of discretion that is inconsistent with this court’s binding precedent. For instance, in Schleider, the Fourth District relied upon the dissenting opinion in Pontrello v. Estate of Kepler, 528 So. 2d 441, 445 (Fla. 2d DCA 1988) (Campbell, J., dissenting), for the proposition that the trial court may refuse to appoint a personal representative named in a will upon the basis of facts presented to the court at the time of appointment that—if presented after the appointment—would support removal of the personal representative. 770 So. 2d at 1254. However, this court in Werner recognized that there are different statutory criteria for the appointment and removal of personal representatives. 943 So. 2d at 1008; accord Pontrello, 528 So. 2d at 444 (“[S]ince the legislature has provided separate and distinct statutes to deal with the appointment of the personal representative, the terms of the removal statute should not be read into the explicit appointive statutes.”).

Appointment Of a Personal Representative In a Florida Intestate Estate

The appointment of a personal representative in an intestate estate is governed by a different subsection of section 733.301 – section (b).  In a Florida intestate estate, the priority of appointment is:

  1. The surviving spouse.
  2. The person selected by a majority in interest of the heirs.
  3. The heir nearest in degree. If more than one applies, the court may select the one best qualified.

 

Here, the court cautioned that cases regarding the appointment of a personal representative in a Florida intestate estate are not applicable to the appointment of a personal representative in a testate estate, quoting from the Second DCA opinion of In re Estate of Snyder:

 The distinction between an executor named in a will and an administrator appointed by the court is significant because the executor derives his powers from the appointment of the testator and not from appointment by the court. Cf. Comerford v. Cherry, 100 So. 2d 385 (Fla. 1958) (testamentary guardian derives his powers from appointment by testator, not from appointment by court). A judge treads on sacred ground, not only when he overrides the testator’s directions regarding the custody of his children, but also when he overrides the testator’s directions regarding the appointment of the person in whom the decedent placed his trust to administer his estate according to the powers given in the will. See Comerford.

The court concluded that the Florida probate court was without discretion to deny the appointment of the nominated personal representative and reversed the decision.

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