13 Mar Issues Pertaining to Personal Representative Under Florida’s Probate Statute
Issues Pertaining to Personal Representative Under Florida’s Probate Statute
PREFERENCE IN APPOINTMENT AND QUALIFICATIONS OF PERSONAL REPRESENTATIVE
733.301 Preference in appointment of personal representative.
733.302 Who may be appointed personal representative.
733.303 Persons not qualified.
733.305 Trust companies and other corporations and associations.
733.306 Effect of appointment of debtor.
733.307 Succession of administration.
733.308 Administrator ad litem.
733.309 Executor de son tort.
733.3101 Personal representative not qualified.
733.301 Preference in appointment of personal representative.—
(1) In granting letters of administration, the following order of preference shall be observed:
(a) In testate estates:
1. The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.
2. The person selected by a majority in interest of the persons entitled to the estate.
3. A devisee under the will. If more than one devisee applies, the court may select the one best qualified.
(b) In intestate estates:
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.
(2) A guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative.
(3) In either a testate or an intestate estate, if no application is made by any of the persons described in subsection (1), the court shall appoint a capable person; but no person may be appointed under this subsection:
(a) Who works for, or holds public office under, the court.
(b) Who is employed by, or holds office under, any judge exercising probate jurisdiction.
(4) After letters have been granted in either a testate or an intestate estate, if a person who was entitled to, and has not waived, preference over the person appointed at the time of the appointment and on whom formal notice was not served seeks the appointment, the letters granted may be revoked and the person entitled to preference may have letters granted after formal notice and hearing.
(5) After letters have been granted in either a testate or an intestate estate, if any will is subsequently admitted to probate, the letters shall be revoked and new letters granted.
733.302 Who may be appointed personal representative.—Subject to the limitations in this part, any person who is sui juris and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to act as personal representative in Florida.
733.303 Persons not qualified.—
(1) A person is not qualified to act as a personal representative if the person:
(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
(c) Is under the age of 18 years.
(2) If the person named as personal representative in the will is not qualified, letters shall be granted as provided in s. 733.301.
733.304 Nonresidents.—A person who is not domiciled in the state cannot qualify as personal representative unless the person is:
(1) A legally adopted child or adoptive parent of the decedent;
(2) Related by lineal consanguinity to the decedent;
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
(4) The spouse of a person otherwise qualified under this section.
733.305 Trust companies and other corporations and associations.—
(1) All trust companies incorporated under the laws of Florida, all state banking corporations and state savings associations authorized and qualified to exercise fiduciary powers in Florida, and all national banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida shall be entitled to act as personal representatives and curators of estates.
(2) When a qualified corporation has been named as a personal representative in a will and subsequently transfers its business and assets to, consolidates or merges with, or is in any manner provided by law succeeded by, another qualified corporation, on the death of the testator, the successor corporation may qualify as personal representative unless the will provides otherwise.
(3) A corporation authorized and qualified to act as a personal representative as a result of merger or consolidation shall succeed to the rights and duties of all predecessor corporations as the personal representative of estates upon filing proof in the court, and without a new appointment. A purchase of substantially all the assets and the assumption of substantially all the liabilities shall be deemed a merger for the purpose of this section.
733.306 Effect of appointment of debtor.—The appointment of a debtor as personal representative shall not extinguish the debt due the decedent.
733.307 Succession of administration.—The personal representative of the estate of a deceased personal representative is not authorized to administer the estate of the first decedent. On the death of a sole or surviving personal representative, the court shall appoint a successor personal representative to complete the administration of the estate.
733.308 Administrator ad litem.—When an estate must be represented and the personal representative is unable to do so, the court shall appoint an administrator ad litem without bond to represent the estate in that proceeding. The fact that the personal representative is seeking reimbursement for claims against the decedent does not require appointment of an administrator ad litem.
733.309 Executor de son tort.—No person shall be liable to a creditor of a decedent as executor de son tort, but any person taking, converting, or intermeddling with the property of a decedent shall be liable to the personal representative or curator, when appointed, for the value of all the property so taken or converted and for all damages to the estate caused by the wrongful action. This section shall not be construed to prevent a creditor of a decedent from suing anyone in possession of property fraudulently conveyed by the decedent to set aside the fraudulent conveyance.
733.3101 Personal representative not qualified.—Any time a personal representative knows or should have known that he or she would not be qualified for appointment if application for appointment were then made, the personal representative shall promptly file and serve a notice setting forth the reasons. A personal representative who fails to comply with this section shall be personally liable for costs, including attorney’s fees, incurred in any removal proceeding, if the personal representative is removed. This liability shall be cumulative to any other provided by law.
Barry E. Haimo, Esq.
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