Werner v. Estate of McCloskey, 2006 WL 3613178 (Fla. 1st DCA Dec 13, 2006)
This case underscores the importance Florida law gives to a person’s choice of personal representative in his or her will. It also proves that just because you may think there are grounds to remove a serving personal representative, it doesn’t mean you have grounds for blocking the initial appointment. Why does this matter? Because who gets appointed personal representative (“PR”) of an estate has huge implications in the litigation context. The named PR can pay his legal fees with probate assets, while the person challenging the PR has to pay his own way. In the real world, this fact alone can determine the outcome of a contested proceeding, regardless of the underlying legal positions of the parties.
The following excerpt from the linked-to opinion speaks to the strength of the legal presumption in favor of the named personal representative:
Section 733.301(1)(a), Florida Statutes (2005), provides that, in testate estates, preference in granting letters of administration must be accorded to “[t]he personal representative ··· nominated by the will····” Moreover, “[i]t is a well recognized principle of law that a testator has the right to name the person who shall administer his estate provided such person is not disqualified by law.” Pontrello v. Estate of Kepler, 528 So.2d 441, 442 (Fla. 2d DCA 1988) (citations omitted). “The general rule is that trial courts are without discretion to refuse to appoint the personal representative specified by the testator in the will unless the person is expressly disqualified under the statute or discretion is granted within the statute.” In re Estate of Miller, 568 So.2d 487, 489 (Fla. 1st DCA 1990) (citations omitted).
Here, the trial court appointed Ms. Niznik rather than appellant because it concluded that appellant “ha[d] a conflict of interest with the estate” (the precise nature of which was not identified). Nothing in section 733.301(1)(a) purports to vest discretion in the trial courts to disregard the preference there specified, as long as the personal representative nominated by the decedent is statutorily qualified to serve. Sections 733.302 and 733.303(1), together, set out the qualifications required of one who wishes to serve as a personal representative. Section 733.302 requires that the person be “sui juris” and “a resident of Florida at the time of the death of the person whose estate is to be administered.”
The following excerpt reminds the parties of the fact that just because a conflict of interest may not disqualify a named PR, it’s certainly a good reason to get rid of him or her once appointed:
We note that, to the extent that, on remand, there exists a legitimate concern about whether appellant has a conflict of interest, section 733.504(9), which lists causes for removal of a personal representative once appointed, includes as a ground “[h]olding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole.”