Probate Court May Not Appoint an Attorney as Personal Representative With Conflict

In Long v. Willis (Fla. 2nd DCA 2013), the Florida appellate court affirmed the lower probate court’s refusal to appoint as the personal representative of the estate a local attorney who had previously represented some of the beneficiaries in related proceedings.  The probate court could not appoint an attorney with a conflict as personal representative.

In Long, the decedent died intestate with five children. Renee Long, on behalf of her three minor children, held a 60% interest in the estate. In the case of a Florida intestate estate without a surviving spouse, the rule for the appointment of the personal representative is as follows (Florida Statute 733.301(1)(b):

The person selected by a majority in interest of the heirs.

Renee Long selected a local attorney to serve as the personal representative of the estate, Hugh Umsted. Earlier in the probate proceedings, Umsted had represented the three minor children as their attorney. Even though the appellate court went out of its way to note that the trial court indicated that Mr. Umsted was an excellent attorney and that no one had questioned his integrity or ability, the appellate court affirmed the decision not to appoint Mr. Umsted.

Undeniably, Mr. Umsted has appeared as an attorney in the pending probate proceeding on behalf of the three minor beneficiaries.  This raised a conflict.  As explained by the appellate court:

Thus, before he was considered for appointment as personal representative, Mr. Umsted had already aligned himself with Renee’s children – a fact raising the possibility that he would favor them to the detriment of the two other beneficiaries in the proceedings to follow. Under these unusual circumstances, we cannot say that the probate court abused its discretion in concluding that Mr. Umsted was not a suitable candidate to administer the estate.

Therefore, even the appearance of a conflict is enough to prevent the probate court from appointing an attorney as personal representative.

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Broward County (Ft. Lauderdale)

Natasha M. Dalton

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Matthew Weidner

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Dawn Bates-Buchanan

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Jon L. Martin

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