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Florida Probate Statute 733.301: Preference in Appointment of Personal Representative

In Florida, the personal representative is the person who is appointed by a probate court judge to manage the activities related to winding up the estate of a decedent and distributing his (or her) assets to his beneficiaries or heirs. Because of the sensitive tasks that a personal representative is required to perform and the impact his actions have on the decedent’s estate, Florida law has strict requirements as to who can serve as a personal representative. If you would like to learn more about the process of being appointed a personal representative including the requirements of Florida Statutes, section 733.301- Preference in appointment of personal representative, contact an experienced Fort Lauderdale estate administration lawyer at the Law Offices of Stephen Bilkis & Associates.

Who May Act as a Personal Representative

According to the Florida Probate Code, in order to qualify to serve as a personal representative, you must be at least 18 years old and a resident of Florida at the time of the death of the person whose estate you would like to manage. In addition, you must not suffer from a mental or physical incapacity that would prevent you from performing the duties of the personal representative. If you have been convicted of a felony you may not act as a personal representative.

If you would like to serve as personal representative of a loved one’s estate, you must file a petition with the circuit court. Only after your petition is approved and letters of administration are issued by the court will you have the legal authority to act on behalf of the decedent’s estate. This is the case even if the decedent named you as his (or her) personal representative in his will. To learn more about the process for petitioning the court to be appointed a personal representative, contact an estate administration lawyer in Fort Lauderdale.

Preference in Appointment of Personal Representative

Even if you submit a petition as required and meeting the qualification requirements to serve as a personal representative, you will not be appointed if someone else is qualified and petitions who has a higher on the preference list then you are. According to Florida Statutes, section 733.301- Preference in appointment of personal representative, where the decedent died testate, the person nominated in the will to serve as personal representative has the first priority. The person with the next priority is the person selected by a majority in interest of the persons entitled to the estate. After that, it would be a beneficiary under the will. If more than one beneficiary applies, the court may select the one best qualified.

If the decedent did not leave a will, the person with top preference to serve as executor would be the decedent’s surviving spouse, followed by the person selected by a majority in interest of the heirs, and then the heir nearest in degree. If more than one heir nearest in degree applies, the court may select the one best qualified.

If no one applies, then the court will appoint a capable person. However, the court may not appoint any who works for, or holds public office under the court. In addition, the court may not appoint anyone who is employed by, or holds office under, any judge exercising probate jurisdiction.

As an experienced estate administration attorney serving Fort Lauderdale will explain, any interested party such as a beneficiary or other fiduciary has the right to petition the court to remove an administrator.

Example

John died. No one was able to locate a will, so it was determined that he died intestate. John’s surviving spouse, Jane, filed a petition to be appointed the personal representative of John’s estate. Upon review of Jane’s petition, the court determined that she was qualified and issued her letters of administration. A few weeks into the administration process, John’s daughter, Brenda, found a will and filed it with the court. The will nominated John’s father, Peter, to serve as personal representative. Peter was willing, able, and qualified to serve. Pursuant to Florida Statutes, section 733.301- Preference in appointment of personal representative, the probate court revoked the letters of administration issued to Brenda, admitted the will to probate, and issued letters of administration to Peter.

Related Statutory Provisions
  1. Who may be appointed personal representative : § 733.302, Fla. Stat.
  2. Persons not qualified: § 733.303, Fla. Stat.
  3. Nonresidents : § 733.304, Fla. Stat.
FL. Stat, Section 733.301- Preference in Appointment of Personal Representative
  1. In granting letters of administration, the following order of preference shall be observed:
    1. 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.
    2. 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:
    1. Who works for, or holds public office under, the court.
    2. 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.
Contact the Law Offices of Stephen Bilkis & Associates

If you have questions related to the procedure for the appointment of a personal representative, including the requirements of Florida Statutes, section 733.301- Preference in appointment of personal representative, it is important that you discuss your concerns with an experienced estate administration attorney. The attorneys at the Law Offices of Stephen Bilkis & Associates have over two decades of experience representing clients in matters related to the administration of estate, and understand the requirements of the Florida Probate Code. We can help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.

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