Florida Probate Litigation Lawyer Blog
When a Florida resident passes away, regardless of whether he or she had a valid will, a person will be appointed to act as personal representative to administer the estate of the deceased. If the deceased executed a valid will, he or she may have named the personal representative in the will, or if the personal representative was not specifically named, the power of appointing the personal representative may have been granted to a named individual. See Fla. Stat. § 733.301(1)(a)(1). If the deceased either died without a will, or had a will but neither named a personal representative, nor granted the power to appoint a personal representative, then the personal representative is appointed in accordance with the order of preference set forth in Florida Statute § 733.301. See Fla. Stat. § 733.301(1). For a person who dies without a will, the personal representative will be “[t]he surviving spouse,” “[t]he person selected by a majority in interest of the heirs,” or “[t]he heir nearest in degree. If more than one applies, the court may select the one best qualified.” See Fla. Stat. § 733.301(1)(b). For a person who died with a will which did not specify a personal representative or grant someone else the power to name the personal representative, the personal representative will be “[t]he person selected by a majority in interest of the persons entitled to the estate,” or “[a] devisee under the will. If more than one devisee applies, the court may select the one best qualified.” See Fla. Stat. § 733.301(1)(a).
For various reasons, a person or persons interested in the decedent’s estate (i.e., the beneficiaries of the estate) may not wish for the person initially named as personal representative to administer the estate. In Florida, a personal representative may be removed for any of the following causes:
1. Adjudication that the personal representative is incapacitated.
2. Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
3. Failure to comply with any order of the court, unless the order has been superseded on appeal.
4. Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
5. Wasting or maladministration of the estate.
6. Failure to give bond or security for any purpose.
7. Conviction of a felony.
8. Insolvency of, or the appointment of a receiver or liquidator for, any corporate representative.
9. Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in th[e] code.
10. Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
11. Removal of domicile from Florida, if domicile was a requirement of initial appointment.
12. The personal representative would not now be entitled to appointment.”
See Fla. Stat. § 733.504. If any of the foregoing causes are present, a person may seek removal of the personal representative “in addition to any penalties prescribed by law. See id.
To initiate removal of a personal representative, the person seeking removal must file a petition for removal in the court that has jurisdiction of the administration. See Fla. Stat. § 733.505. Either the court or an interested person may initiate removal proceedings. Fla. Stat. § 733.506 (2002). An “interested person” is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Fla. Stat. § 731.201(23)(2013). If the court decides to remove the personal representative, “the court shall appoint a personal representative or shall appoint a curator to serve until a successor personal representative is appointed.” See Fla. Stat. § 733.5061.
If you or someone you know is interested in appointing, removing, or acting as a personal representative, please do not hesitate to contact the experienced estate planning and probate litigation attorneys at Chepenik Trushin LLP who are ready, willing, and able to take care of all your estate planning and estate litigation needs.
