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Legacy Protection Lawyers St. Petersburg Estate Planning, Probate & Trust Lawyer

What is the Preference of Appointment of the Personal Representative in Florida Probates?


One of the many benefits of creating a Will in Florida is the testator’s ability to appoint a personal representative. Selecting your personal representative is a fundamental part of estate planning.  But who is to serve if there is no Will when someone dies?  Who has the “preference of appointment” to serve as the personal representative?

What Happens if You Do Not Appoint a Personal Representative?

If you die without a Will or do not appoint an eligible personal representative in your Will, there is a risk of conflict and disagreement between your beneficiaries after your death. Failure to nominate a qualified personal representative can complicate the probate process because your beneficiaries will have to select an individual to serve in that role.

This can be problematic. For example, if half of the beneficiaries believe that Person A should serve as the personal representative, the other half may disagree and want Person B to serve. Fortunately, the testator appointing an eligible person in their Will as the personal representative prevents conflicts between the beneficiaries and prevents delays in beginning the administration.

Who has Preference in Appointment?

However, what happens if there is no consensus regarding who should serve as a personal representative? We must then determine the “preference of appointment.”  This is the order of priority when appointing someone to serve as the personal representative during the probate process when there is no Will (or an eligible person is not named under a valid Will).

The preference of appointment is defined under Section 733.301, Florida Statutes, which states if a person dies with a valid Will, preference is given to the nominated person in the Will unless that person does not qualify under Florida Statutes (i.e., someone who has been convicted of a felony, someone under the age of 18, or a nonrelative and nonresident of Florida).

If no appointment has been made under the Will, a personal representative must be selected by a majority in interest of the beneficiaries.  If a majority of the beneficiaries cannot agree, then the Court may select a devisee under the Will.  The court has jurisdiction to choose a personal representative from the beneficiaries who are willing to serve and the best qualified.

If the decedent died without a Will, the preference of appointment is given to the surviving spouse.  If there is no surviving spouse, the second preference is given to the person selected by a majority of the heirs at law.  If none, or if they cannot agree, then the “heir nearest in degree” has preference to serve as personal representative.   The Court will always have the final determination.

Why You Need to Select the Personal Representative in Your Will

If you die without a Will, there is a risk that a conflict will arise between the beneficiaries in selecting the personal representative. Disagreements over appointing a personal representative are not only costly and time-consuming, but can also trigger unnecessary animosity among the heirs.

It is vital to appoint a personal representative that is qualified to serve in Florida. For this reason, you should consult with a St. Petersburg estate planning attorney. Discuss your particular situation with our lawyers at Legacy Protection Lawyers, LLP by calling 727-471-5868.

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