Florida Probate Litigation Lawyer Blog
When thinking about creating a will, there are many considerations that have to be factored in before putting anything in writing. An important consideration is deciding who to appoint as the personal representative for the estate.
A personal representative is an individual who is appointed to administer the decedent’s estate through probate. Under Florida Statute § 731.201, a personal representative is an umbrella term that could refer to an executor of a valid will or an administrator appointed by the probate court for an intestacy estate in cases where there is no will or there is an invalid will. Under Florida Statute § 733.302, in order to be a personal representative, an individual must be a resident of Florida and sui juris, considered to be competent under the statute. The Probate Code gives preference in the appointment of a personal representative in the event of either testate or intestate estates. For an estate with a valid will, preference is given to the personal representative named in the will, or a person selected by a majority of interested persons, or a devisee of the decedent. Under Florida Statute § 733.301, for estates without a will or with an invalid will, preference is given to the surviving spouse, then to a person selected by a majority of the interested parties, and then to the heir nearest in degree to the decedent.
There are further limitations placed on who is eligible to be a personal representative. In Florida Statute § 733.303, the Florida Probate Code provides that if an individual has been convicted of a felony, then they are not qualified to act as a personal representative. This limitation was upheld recently by the Fourth District Court of Appeals in In re Estate of Butler, 2016 WL 1579270, at *1 (Fla. 4th DCA 2016). The District Court upheld the trial court’s denial of a petition filed by the decedent’s father. The father claimed that regardless of having the prior felony conviction, he should not be disqualified as the personal representative as he was the sole heir to his daughter’s estate. The trial court disagreed with the father and ruled that he should be disqualified as the personal representative of the estate.
Florida is not the only state that imposes restrictions on personal representatives to include convicted felons. For example, in Washington, an individual cannot be appointed if they have been convicted of felony under Wash. Rev. Code Ann. § 11.36.010. However, Washington also includes those who have convicted of any crime involving moral turpitude. Additionally, Oregon provides a less bright line rule regarding felony convictions. Oregon requires a personal representative to disclose to the probate court any felony convictions under Or. Rev. Stat. §113.092. But, the court will not automatically disqualify them unless the facts and circumstances underlying the conviction illustrate that the individual would be considered untrustworthy if put in charge of the decedent’s estate. If the person selected by the decedent is a convicted felon, but has been granted clemency for their conviction, then they are allowed to serve as a personal representative because they have had their civil rights restored.
Therefore, when considering who to appoint as a personal representative, do not forget to keep the individual’s history in mind. If an individual is chosen who is a convicted felon, the result of appointing another person will go against your wishes and create more red tape. In order for smooth administration of your estate, think hard about your personal representative
This article is intended to be a brief overview of statutes relating to personal representatives limitations and convicted felons. Individuals interested in how this information will personally affect them should consult with an attorney. Do not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to help with your estate planning needs.
