Who Will Be Named Executor Of An Estate If There Is No Will?
The appointment of a personal representative is one of the most important steps in the process of administering a probate estate. If the deceased individual–known in legal terms as the decedent–left a will, then that document will typically nominate a personal representative. But what happens when there is no will? How does the probate court decide who should administer the decedent’s estate?
How Florida Law Deals with Intestate Estates
Under Florida law, when there is an estate with no will–otherwise known as an intestate estate–the probate court is required to follow an “order of preference” when appointing a personal representative, which goes as such:
- If the decedent was married, their surviving spouse has first preference.
- If there is no surviving spouse, the preference is given to the “person selected by a majority in interest of the heirs.”
- If no such person is selected, then preference is given to the “heir nearest in degree”; if two or more people have an equal relationship to the decedent, then the court “may select the one best qualified.”
So in simple terms, if you are married, then your spouse is given top preference to serve as the personal representative of your intestate estate. If you are unmarried at the time of your death, then a majority of the persons who stand to inherit your estate under Florida law may nominate someone to serve as personal representative. If that fails, the court will give preference to your closest-living blood relative.
Now, when the law speaks of “preference,” it means that while under ordinary circumstances that person will be named as personal representative, that is not an absolute. There are situations where a preferred person may be legally ineligible to serve as personal representative. For example, a person who is currently in prison or has a felony conviction is legally ineligible to serve as the personal representative of a Florida estate, even if they would otherwise have preference.
And even when a person is legally competent to serve, the probate court may conclude they are unsuited to do so due to the circumstances surrounding the estate. For instance, if the preferred personal representative has legal interests that are adversarial to the estate–say they are suing the estate for damages–the court can elect to ignore the preference. Or perhaps the preferred individual is estranged from the rest of the family to the point where the court concludes that they cannot fairly and impartially carry out the duties of the personal representative.
In the end, the court’s role is to select the person who may be legally entitled to serve as personal representative; it is to appoint the individual who will carry out the role competently and in good faith.
If you are involved in a dispute surrounding the appointment of a personal representative and need advice from a qualified Pompano Beach estate and trust litigation attorney, contact Mark R. Manceri, P.A., Attorney at Law today to schedule a consultation.