When a person dies and a formal probate estate must be opened in Florida, the probate court will appoint a person to be in charge of the estate administration. In Florida, this person is known as a “Personal Representative.” In other states, it is known as an “Executor” or “Administrator.” In Florida, no one is authorized to act as Personal Representative until a probate court issues an Order appointing the Personal Representative. Simply being designated in the Will is not enough–an Order appointing the Personal Representative is required.
How does a probate court decide who to appoint as Personal Representative? First, it depends on whether the probate estate is testate (there’s a Will) or intestate (there is no Will). If there is a Will, then the probate court looks first at whom the deceased person designated in their Will or whether the Will conferred a power on someone to appoint the Personal Representative. If the Will provided as follows, “I appoint my brother, Steve Jones, to serve as Personal Representative” then Steve has first priority so long as he qualifies. If the Will provides, “I give my brother, Steve Jones, the power and authority to designate the person who will serve as Personal Representative,” then the court will look to who Steve designates.
If there is a Will but no one designated in the Will is willing or able to serve as Personal Representative, then court will look to the person selected by a majority in interest of the persons entitled to the estate. In other words, the majority of beneficiaries would decide. So if the beneficiaries of the Will were Steve, Nancy, and Mary, any two of them could vote on who should be appointed Personal Representative. That person would then have priority to be appointed.
If none of the above situations apply, then the probate court may appoint a “devisee” under the Will. By this, devisee means a beneficiary under the Will. So if the beneficiaries of the Will were Steve, Nancy, and Mary, the court could appoint one of them. In doing so, the court would consider which one was considered to be best qualified.
In intestate estates, since there is no Will to look to, Florida has a statute which designates the order in which entitlement to be appointed Personal Representative applies. Section 733.301, Fla. Stat. provides the order as:
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.
Under any circumstance, whether testate or intestate, and regardless of who has priority to be appointed as Personal Representative, an interested person may challenge the person to be appointed. It then becomes an issue for the probate court to decide whether the person with priority should be appointed. Often when there is a challenge to the appointment of a Personal Representative, the basis is grounded on the person’s fitness or ability to serve. Consider an example: Thomas had a Will naming his son, Charles, as Personal Representative and his daughter, Jane, as first successor Personal Representative. If, at the time of Thomas’ death, Charles was an illegal drug-user living on the streets, Jane could challenge Charles being appointed by the court. In that instance, even though the Will designates Charles to serve, the court may choose not to appoint Charles because he is not fit to serve.
