What if you don’t like the nominated personal representative and believe there’s a conflict that would prevent their appointment?
June 21, 2021
The trial court cannot refuse to appoint the nominated personal representative of an estate based on an alleged conflict where the record contains no competent substantial evidence from which the court can conclude that there is a conflict of interest. See Werner v. Estate of McCloskey, 943 So. 2d 1007 (Fla. 1st DCA 2006) (emphasis added). See also Pontrello v. Estate of Kepler, 528 So. 2d 441, 444 (Fla. 2d DCA 1988) (internal citation omitted) (holding in relevant part that “ill feelings, disputes, and strained relationships between heirs frequently exist. It does not necessarily follow, however, that such friction would prohibit one of them from being best qualified to act as personal representative. We cannot approve the refusal to appoint the person named as personal representative in the decedent’s will if he is otherwise qualified to serve just because the beneficiaries of the estate do not like him. If the person takes the required oath and agrees to faithfully administer the estate, he should be appointed.”).
Importantly, Fla. Stat. §733.303(1) provides the only reasons for which a person is not qualified to act as personal representative: has been convicted of a felony; is mentally or physically unable to perform the duties; or is under the age of 18 years.
Rather, a probate court is to allow preference to the personal representative nominated in the will, and absent any exceptional circumstances, a trial court does not have discretion to alter that and nominate anyone but the nominated person unless that person is expressly disqualified or such discretion is granted by statute. McCormick v. McCormick, 991 So. 2d 437, 439 (Fla. 1st DCA 2008)(citing Fla. Stat. §733.301, providing that in testate estates, the personal representative nominated in the will takes preference in appointment); Pontrello, 528 So. 2d at 442 (holding that “ a testator has a right to name the person who shall administer his estate provided such person is not disqualified by law.” ); see also Fla. Stat. §733.302, 733.303.
If you are faced with a nominated personal representative in an estate that you believe has a conflict and cannot serve in that fiduciary role, you should speak with your trusted probate lawyer about this in order to frame the evidence supporting the conflict and the appropriate method of presenting same to the probate court.