A probate court has the authority to appoint someone to serve as personal representative other than the statutorily entitled person to serve, if, on evaluating a person’s fitness to serve, it makes appropriate findings.

In this recent Third District Court of Appeal opinion, the trial court’s decision was reversed because it failed to make such requisite findings. Here, the decedent and his wife were married for just four days before the Decedent died. The Decedent’s father filed a petition for Administration, seeking appointment as the estate’s Personal Representative. The Decedent’s wife objected and sought her right as the surviving spouse to be appointed. The trial court held a hearing and ultimately entered an order appointing the Decedent’s father, stating that he was the “nearest heir of the Decedent willing to serve as personal representative”.

In reversing the order, the Third District determined that the trial court erred in basing its order on the father’s entitlement to serve, because the surviving spouse was statutorily entitled to preference pursuant to Fla. Stat. 733.301(1)(b). Moreover, the Decedent’s father was not the “heir nearest in degree”, as there was a surviving spouse. The trial court did not make any finding whether the surviving spouse was not fit to serve as personal representative.

What does this mean? The probate court has inherent authority to appoint someone other than the statutorily-entitled person, if it makes findings that such person lacks the characteristics necessary to serve as personal representative. Not only do the Florida Probate Rules require a person who is appointed as personal representative to be represented by an attorney, an experienced estate and trust attorney can guide you through issues from initial appointment as personal representative and throughout the estate administration process.