Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By James W. Mallonee
Florida is liberal when it comes to who can serve as the personal representative of an individual’s estate following their death. The law concerning the appointment is initially based on whether a Will exists or does not (intestate). A decedent’s Will takes precedence, but if there is no Will (intestate) then Florida’s statutes are the driving force that assist in selecting a personal representative to manage a decedent’s estate.
NO WILL: If the decedent dies without a Last Will and Testament, the court will look to see who has preference in appointment when selecting a personal representative. Preference in appointment simply means that class of persons who has the legal right to serve as personal representative. The first person to receive preference in appointment is the surviving spouse (if any). If there is no surviving spouse, then the next person with preference is a person who is selected by a majority of the persons who have an interest in the estate. Those persons making the selection are usually beneficiaries of the estate who have consanguinity with the decedent. In addition, a guardian may also serve provided the Ward selected is an heir of the estate. In the unique situation where there is no heir requesting appointment, the court may appoint a person who is capable of handling the estate and is a citizen of Florida.
A WILL EXISTS: Naturally, the person nominated in a decedent’s Will has preference in appointment and if such person is not alive or refuses to serve, then in such event, the secondary person nominated in the Will can serve. If all of the nominated personal representatives refuse to serve, then in such event, the person selected by a majority of the beneficiaries of the estate may serve in such role. Should the decedent not have named a personal representative, the court may select one of the devisee’s who in its opinion is best qualified to serve in such role.
NOT QUALIFIED: In some cases, a personal representative may not be qualified to serve who has been nominated as personal representative. Examples might be a person with no relationship to the decedent at the time of death and/or is not a Florida resident. In addition, those persons who were convicted of a felony, are mentally or physically unable to perform or is under the age of 18 years of age may not serve. The law does differentiate between a person who has been charged with a felony and those convicted. It specifically uses the word convicted, thus you may be charged with a crime, but until it results in conviction, the individual can continue to serve.
In the case of ARAGUEL v. BRYAN, the decedent’s Will appointed Jerry D. Sanders as personal representative. The decedent’s son, Lesley Ladon Bryan, objected which resulted in a hearing on who would be appointed personal representative. The Court after listening to the parties arguments determined that Mr. Saunders was eligible to serve using the factors listed above. Mr. Saunders was appointed personal Representive; the court noted the distinctions between a testate and intestate estate with regard to the rules when appointing a personal representative.
In the present case, the court fell back on the words of the statute and not on the emotions of the beneficiaries. Mr. Saunders was a Florida resident; it did not matter what his relationship was to the decedent as-long-as he was not a felon and was alive, he could serve as personal representative.
The message to learn is to read the decedent’s Last Will and Testament and see if it fits in the above paragraphs, and if not, then seek out the attorney of your choice to discuss alternatives.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee, P.A.
946 Tamiami Trail, #206, Port Charlotte, FL 33953
(941) 206-2223
871 Venetia Bay Blvd., #225, Venice, FL 34285
(941) 207-2223
