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Can Someone Force the Opening of a Florida Probate Estate?


The process of administering a Florida probate estate begins with the filing of a petition with the circuit court for the judicial circuit where the decedent–the person who died–resided at the time of their death. In most cases, the petitioner is the person who is either nominated to serve as personal representative of the decedent’s estate in their will, or if there is no will, the person entitled to serve as administrator of the estate under Florida’s intestacy laws.

But what if that person does not file a petition in a timely manner? Could another family member–or even a creditor of the decedent–initiate the probate process on their own? In many cases, the answer is “yes.”

Who Are “Interested Persons”?

Under Section 733.202 of the Florida Statutes, “Any interested person may petition for administration” of a probate estate. Another section then defines an interested person to mean “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” While this definition is somewhat fluid and will apply to different types of people depending on the specific circumstances of a given estate, here are some common examples of interested persons meeting this standard:

  • the personal representative of the estate;
  • the beneficiaries named in the decedent’s last will and testament;
  • the heirs who would stand to inherit from the estate if the decedent had no will, or if the will filed with the petition is ultimately not admitted by the circuit court; and
  • any creditors of the decedent.

Florida law excludes from the list of interested persons any beneficiaries who have already “received complete distribution” from the estate.

Can an Interested Person Serve as Personal Representative?

While any interested person can petition to open a probate estate, that does not mean they have the right to actually administer that estate. In other words, let’s say Jillian dies and one of her creditors files a petition to probate her estate. The circuit court will not then appoint the creditor to act as administrator.

The right to serve as personal representative of a probate estate is governed by law. In Florida, this means that if the decedent left a will, the court will typically appoint the person nominated to serve as personal representative, assuming they meet all of the legal qualifications and accept the role. In the case of an intestate estate, Florida law specifies the order of priority for appointing as personal representative. Typically, a surviving spouse has the highest priority. If there is no surviving spouse, however, the “person selected by a majority in interest of the heirs” takes priority.

Contact Mark R. Manceri, P.A., Today

If you are involved with a probate estate where there is the potential for litigation, such a case where there is no will, it is critical that you work with an experienced Pompano Beach estate & trust litigation lawyer. Contact the offices of Mark R. Manceri, P.A., today to schedule an initial consultation.



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