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Who Is In Charge Of An Estate When There Is No Will?

On February 29, 2012 the Second District Court of Appeals issued an opinion involving the appointment of a Personal Representative (sometimes referred to as an executor or administrator) for the estate of a decedent who died without a Will. When a decedent has made a valid Will, this document will normally nominate a person or bank to be Personal Representative. What happens when there is no Will?

The Florida Probate Code specifies that there is a priority of preference that is to be followed in determining who will be Personal Representative. A surviving spouse comes first, followed by a person who is selected by a majority in interest of the heirs. A “majority in interest” means a person or combination of people who get at least 51% of the value of the assets of the estate. The third preference is an heir nearest in degree (meaning essentially the closest relative or someone from a group of people who all have the same relationship to the decedent).

In the February ruling the court was confronted with a situation where a surviving spouse requested that he be appointed Personal Representative of his late wife’s estate. The request of the surviving spouse was challenged by the decedent’s mother (the spouse’s mother-in-law). The mother asked to be appointed Personal Representative and made allegations against the spouse of a “serious nature” in her petition to the court. The published opinion does not specify what those allegations were, but the appellate court confirmed that person’s preference in appointment is subject to their being fit to serve. A person is not fit to serve if the individual “lacks the necessary qualities and characteristics”.

The important point in the appellate ruling is that because the trial court appointed the mother of the decedent simply on her allegations and without her presenting any actual evidence of the spouse‘s lack of fitness, the case was sent back for a hearing where such evidence must be presented.

There are some valuable lessons to learn from this case. First, in contested estates, suspicions and allegations are not enough to win. You have to prove wrongdoing or lack of fitness with facts. Second, a person is not a Personal Representative simply because they were nominated in a Will. The Will has to be admitted to probate (ruled valid) and the nomination approved by the Court. Third, the approval of a nomination is subject to that person being fit, an adult, mentally competent, not being a convicted felon, and either being a resident of Florida or being related to the decedent within a definition in the Florida Probate Code.

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