Personal Representatives: Qualifications and Preference in Appointment

By: George J. Taylor

As an estate litigator, I have represented beneficiaries challenging the appointment of the named personal representative, and I have represented named personal representatives defending their appointment to serve as the fiduciary of the estate.  This article will give you a brief overview of the role of the personal representative in a Florida estate, the types of estates, the qualifications to serve as a personal representative, and finally, the preference in the appointment of personal representatives.

In Florida, a personal representative is the fiduciary appointed by the court to administer the estate.  The fiduciary duty extends to beneficiaries, creditors, and the taxing authorities.  Some states use terms like administrator or executor for the estate’s fiduciary.  A personal representative is charged with settling and distributing the estate of the decedent according to the decedent’s last will or Florida law if the decedent died without a valid will.  Simply put, the personal representative gathers all of the estate’s assets, pays estate expenses, and then distributes the remaining estate assets to the beneficiaries.

There are two types of estates: testate, died having left a valid will; and intestate, died without leaving a valid will.  The most significant difference between testate and intestate estates is the determination of beneficiaries and their share of the estate.  In a testate scenario, the testator—the maker of the will—identifies the beneficiaries and their respective share of the estate.  In contrast, Florida law determines the beneficiaries and their respective share when someone passes intestate.  To be valid, a will must be executed with certain formalities.  If not, it is likely the estate’s assets will pass according to Florida law, not the intent of the testator.  That is why it is so important to work with a competent estate planning attorney.

Generally speaking, trial courts do not have the discretion to refuse to appoint the personal representative named in the will unless that individual has been convicted of a felony, is mentally or physically unable to perform the duties of a personal representative, or is under the age of 18.  The testator’s choice is given great deference.  However, the court can look beyond the foregoing when there is sufficient evidence, meaning competent and substantial evidence, to find the named personal representative lacks the necessary good moral character, ability, and experience to serve as the fiduciary of the estate.  For example, when the named personal representative has a conflict of interest of some kind, there is hostility to those immediately interested in the estate (beneficiaries and creditors), or there is a conflict of interest to the estate itself.  Hostility—standing alone—is usually not enough and will likely have to be coupled with the likelihood that the hostility between the named personal representative and the beneficiaries of the estate will cause unnecessary litigation and costs and will delay the administration of the estate.

When the individual nominated under the will is not qualified to serve as the personal representative, the court must look to others to serve in that capacity.  In both testate and intestate estates, certain individuals are given preference by the court.

The following order applies to testate estates:

1.) the personal representative (or the named successor nominated by the will or under a power conferred in the will);

2.) the person selected by a majority of the persons entitled to the estate; and

3.) a devisee (a person designated in a will to receive real or personal property) under the will.

With intestate estates, courts observe the following order of preference:

1.) the surviving spouse;

2.) the person selected by a majority in interest of the heirs; and

3.) followed by the heir nearest in degree.  There are other preference scenarios for both types of estates that are beyond the scope of this article.

Unfortunately, disputes, animosity, and adverse interests are all too common amongst heirs to an estate.  If you are involved with an estate and you believe the named personal representative lacks the necessary good moral character and abilities to serve as the estate’s fiduciary, you should act quickly before the individual is appointed by the court because there is a limited window of time to challenge the appointment of the named personal representative.

George Taylor is a Partner with the law firm of Brinkley Morgan.  He focuses on estate and trust litigation as well as business litigation.  George can be reached at (954) 522–2200.