Challenging The Appointment Of A Personal Representative
In the wake of someone’s death, it is not uncommon for there to be a decent amount of confusion over how to handle funeral arrangements, obtain a death certificate, and locate wills and other estate documents to start the probate process. Once these necessary duties are fulfilled, the next step is typically for someone to file a petition with the probate court to open the administration of the estate and ask to be appointed personal representative. The role of the personal representative is an important one, as this person is tasked with transferring the assets of the deceased to heirs and beneficiaries, as well as identifying and contacting potential creditors of the estate. While the deceased is permitted to name a preferred person for this role in a will or other estate document, a court is not bound by this designation, and interested parties may challenge the person’s qualifications. As reported in the Miami Herald, the mysterious death of a well-known Miami real estate professional spawned a bitter battle between the woman’s boyfriend and sister over who should manage the estate. While most appointments go smoothly, it is important to understand when legal entanglements may occur. A discussion of challenges to the appointment of a personal representative will follow below.
How Courts Evaluate Potential Appointees
Florida law has very basic requirements to serve as a personal representative for a probate estate: anyone over the age of 18 and a resident of Florida, with a few exceptions, meets the minimum qualifications to serve in this role. Courts tend to give great preference to the person designated by the deceased to serve in this role, but no right to be appointed exists, and courts do engage in some scrutiny to evaluate whether he/she is appropriate to take on these responsibilities. In addition, choosing a personal representative is also guided by preferences set in Florida statute that appoint certain individuals before others. Specifically, for estates governed by wills and other estate documents, the following individuals are preferred for appointment in listed order:
- the person named in a will;
- the person selected by a majority of the persons entitled to the estate; and
- an heir under the terms of the will.
When courts review a person’s qualifications, the judge looks at person’s credentials and experiences to ensure he/she is capable of acting in the estate’s and heirs’ best interests. If there is a question about the individual’s ability to discharge these duties, a court may justifiably deny the request. In addition, though, other interested parties may challenge the appointment if there are concerns the appointee is unfit in some way. Once appointed, removal is quite difficult, and personal representatives are permitted to use estate resources to defend against removal, so concerns should be presented at the frontend to avoid depletion of the estate’s value for litigation.
Challenging an Appointment
While it is possible to assert a personal representative is unqualified to serve in this capacity, the underlying reason for the challenge must be based upon more than hostility or dislike of the designated person. Further, the amount of time an interested party has to challenge the qualifications of a personal representative is just three months from the date the notice of administration is received. Thus, an experienced probate attorney should be contacted as soon as an issue arises. Common grounds to challenge an appointment include:
- mental or physical incapacity that inhibits the fulfillment of necessary duties;
- holding interests that conflict with the estate; or
- acts of bad or immoral behavior that call into question the character, integrity, or honesty of the appointee.
Speak with a Florida Probate Attorney
The administration of a loved one’s estate is the last testament that person will officially make in this world, so it is important the process is handled properly. The attorneys at the Fort Lauderdale law firm of Joyce A. Julian, P.A. have decades of experience representing clients in these matters, and are specially trained in forensic accounting techniques that help with identifying inappropriate or fraudulent transactions. Contact us for a free consultation.