5 Things To Know About Who Can Serve as Executor of a Florida Probate
If you are involved in an inheritance, or a Florida estate or probate, you may be wondering who gets to run the estate? After all, there is a lot of responsibility for someone to find assets, safeguard them, secure money of the decedent, protect real estate, and Florida homestead. Then, you have to pay the deceased person’s last bills, taxes, and invoices. So, who gets to run the estate, and can anyone apply to be the Personal Representative or executor of the probate or estate?
If you want to learn more about how someone is nominated to be the one who runs the Florida estate, the good news is that there are only 5 recent cases that you need to read. And you can read them all for free by going to the “Opinions” section of the Florida District Court of Appeal website for each case. Below is a list of the five probate appellate decisions issues which tell you more about applying to be the executor, and how to stop someone from being the executor or personal representative of a Florida estate. Yes, there is usually an evidentiary hearing where the court hears evidence on who has preference to be the executor, and who SHOULD be the personal representative. You can object to someone running the estate and you can nominate yourself to serve as executor of the probate.
1. Long v. Willis. This is an April 26, 2013, 2nd District Court of Appeal case, 113 So. 3d 80. When a probate court choose someone over another to run the estate, and you want to appeal that decision, the appellate standard of review is “abuse of discretion.” Now, you can ask your Board Certified Appellate Attorney what that means. But what you need to know is that this Florida probate appeals opinion actually goes into a discussion about a conflict of interest and whether someone is “unsuitable” to be the personal representative. Was someone listed in the will to run the estate but you think that person is unsuitable? You can have a say. You can file a petition with the estate, in the probate court, and ask the court to appoint someone else. Ask your Florida estate lawyer how to win.
2. Bowdoin v. Rinnier. 81 So. 3d 582 (Fla., 2nd DCA, 2012). A February 29, 2012 case from Florida’s 2nd District Court of Appeal. In this Florida estate case, two people each wanted to run the probate. Mom died without a will, what probate lawyers call dying “intestate.” So, the heirs at law can fight and inherit. If they are smart, the heirs will work together, resolve their differences and save thousands of dollars in probate fees. Mom had a husband George who filed a petition to run the estate. But Mom had a minor daughter, too. Mom’s mother actually filed a petition to be appointed personal representative. So, you have a trial on who will run the estate and who will be appointed executor, or personal representative: the mother or the husband of the deceased Florida resident. The appeals court said that the probate court abused its discretion and reversed the probate court. Why? Well Florida Probate Code Section 733.301 sets forth a preference for appointing a personal representative. The surviving spouse or the widow is the first on the list ! Instead, the probate court picked the mother to be the estate executor. Why? The court said that it was in the best interest of all parties to have the mother appointed. BUT, where a preferred individual is NOT appointed, the probate court MUST show, in the record, that the preferred person is not fit to serve. Fitness, then, is a standard by which you can prevent someone who is mentioned in the will from serving as executor. Likewise, if there is no will, you can prevent the widow or the person selected by the majority of the beneficiaries, from running the estate if you can demonstrate that that person in unfit. How do you do that? Evidence! Get your record ready. The court record, your witnesses, and your documents, must demonstrate that the person who you don’t want to run the estate lacks the necessary qualities and characteristics to act as personal representative. Why was this probate ruling over-turned or reversed. Because you need evidence ! And the mother did not call any witness or introduce evidence.
3. Naftel, II v. Pappas. 68 So. 3d 368 (Fla. 1st DCA, 2011). This 1st District Court of Appeal opinion in a probate appeal reminds us that if someone was appointed personal representative of an estate, you can file an answer to that Petition, and also file a counter Petition, to name someone else, or to nominate someone else, to be put in charge of the estate. In your Counter Petition, you can ask the Court to appoint someone else to be the Florida Personal Representative if you don’t like who the Court appointed, or who was appointed in the will. But remember the Florida Probate Rules, including the rules of formal notice Fla. Probate R. 5.201 and 5.240. Your objections to a court’s appointment of an executor, or to someone nominated to serve in the will, or to a preference under Florida Probate Code 733.301 needs to be ruled on. Your counter petition needs to be ruled on. If that does not happen, a probate appeal may be premature. Why? Generally only final probate court orders are appealable.
4. Long v. Willis. 100 So. 3d 4 (Fla. 2nd DCA, 2011). This is referred to by Florida estate attorneys as “Long v. Willis I” . You can see that this is a 2011 probate appeal, where as the first bullet point to this estate commentary is from 2013. What do we learn from this estate appeal in the 2nd District of Florida? Serving as personal representative is a privilege, not a right. If you are named in the will to run the estate, the probate court can still not appoint you to run the estate. Other “interested” persons in the estate can file a petition and try to block you from being the executor and running the Florida estate. And if there are minors, less than 18 years of age, who are estate beneficiaries, their interests can be represented by a parent or guardian. Did you know that you can have a nomination process in an estate? Did you know that the majority of the beneficiaries can try to choose, or select, the person to run the estate. Ask your Florida probate lawyer who to cast your vote and how to win the probate nomination process.
5. Garcia v. Morrow. 954 So. 2d 656 (Fla. 3rd DCA, 2007). The probate court in Florida has the inherent authority to consider a person’s character, ability, and experience to serve as personal representative. A probate litigator’s dream! A party named in the will to run the estate does not have an absolute right to serve as personal representative. But, you need evidence and a record from which the probate court make findings of fact to determine that someone is not fit to serve.