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Who Has Priority to Serve as Executor of a Florida Estate When There Is No Will?


While it is always a good idea to have a last will and testament, there are many reasons why a person might die with no will. For instance, if a young person dies suddenly in an auto accident, there is a decent chance they did not have the forethought to make a will. In some cases, a person might (incorrectly) assume they do not have a will if they do not currently own any valuable property. Or they must just be fine with the law automatically deciding who gets their property after they die.

Legal Kinship Matters More Than Personal Relationships

It is true that Florida has intestacy laws to deal with this situation. But that does not mean legal disputes cannot arise over how to administer an intestate estate. Consider the appointment of a personal representative for the estate. If a person has a will, they can nominate a person of their choice to serve in that role. Absent a will, it is up to the probate court to make an appointment. In doing so, Florida law does require the court to observe the “following order of preference”:

  • the decedent’s surviving spouse;
  • the person selected by a majority in interest of the heirs; or
  • the heir nearest in degree; if there is more than one who applies, the court must determine who is the “best qualified.”

With respect to the latter category, Florida courts will strongly prefer the closest blood relation to the decedent, even if another heir or relative may have had a closer personal relationship. For example, in a 2003 Florida probate case, DeVaughn v. DeVaughn, the Florida Fifth District Court of Appeal reversed a probate judge’s decision to appoint the decedent’s uncle as personal representative of his estate as opposed to his mother.

The decedent in this case was just 19 at the time of his death. The decedent had lived with his uncle for most of his life. Indeed, the mother testified during the probate proceedings that she had not seen her son since he was four.

The decedent died under unusual circumstances. He was sitting on a lawn chair. At the same time, local police were chasing a suspect. One of the vehicles involved in the chase struck and killed the decedent. The uncle sought to open a probate estate in order to bring a wrongful death lawsuit. When the mother learned of this, she filed her own probate petition seeking appointment as personal representative.

The probate court decided to appoint the uncle as personal representative, even while acknowledging any proceeds from the wrongful death action would go to the mother under Florida law. The mother appealed. The Fifth District agreed that she was the “statutorily preferred” personal representative. As long as the mother met the legal qualifications for being appointed–i.e., she was an adult who had never been convicted of a crime–she was entitled to oversee her son’s intestate estate.

Contact a Pompano Beach No Will Lawyer Today

If you are involved in a legal dispute over the administration of an estate with no will, it is best to seek out advice and representation from an experienced Pompano Beach estate and trust litigation lawyer. Contact Mark R. Manceri, P.A. today to schedule a consultation.



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