3d DCA/2d DCA: Are evidentiary hearings required when removing a PR or refusing to appoint a PR with statutory priority?
Who serves as personal representative (PR) of an estate can have huge real-world consequences. For example, under F.S. 768.20 only the PR has standing to bring a wrongful death suit on behalf of the estate and the survivors [click here]. Also, in contested probate proceedings, the PR is presumed to have direct and confidential access to all of the decedent's privileged papers/ medical records, as well as access to estate funds to pay legal fees. These facts probably explain why PR rulings are often appealed, shining a light on a recurring problem.
For reasons unclear to me, probate judges seem especially challenged by the law governing when/how a judge can remove a serving PR, or when/how a judge can refuse to appoint a PR with statutory preference under F.S. 733.301. These cases get appealed all the time, almost always resulting in reversals [e.g., see here, here, here, here, here].
If there's one word that sums up where these cases go wrong it's: EVIDENCE. Or more precisely, the lack thereof. Probate judges are given a great deal of latitude when asked to decide estate administration issues. But those decisions must be based on evidence, adduced at properly noticed evidentiary hearings; not on the fly based on counsel arguments at a 15-minute hearing. That's the lesson to be drawn . . . again . . . from the latest batch of appellate decisions reversing three probate judges on opposite sides of the state (1 in Tampa, 2 in Miami) who failed to adhere to this simple rule.
Zulon v. Peckins, --- So.3d ----, 2012 WL 933013 (Fla. 3d DCA February 08, 2012):
In this case a Miami PR was removed without notice or evidentiary basis. In another case dealing with another Miami PR just last year, the 3d DCA held in Estate of LoCascio this kind of ruling is reversible error. One year later, nothing's changed: it's still reversible error:
The appellant, Elizabeth Zulon, appeals from an order of the probate court removing her as co-personal representative of her father's estate. Because removal was ordered without notice or an evidentiary hearing, “the ruling did not meet even the most rudimentary requirements of due process.” LoCascio v. Estate of LoCascio, 78 So.3d 573, 574 (Fla. 3d DCA 2011). We reverse and remand with instructions to reinstate the co-personal representatives; FN1 discharge Mr. Peckins as successor personal representative; and conduct a duly noticed evidentiary hearing regarding the removal of Elizabeth Zulon and Ana Zulon as co-personal representatives.
Lezcano v. Estate of Hidalgo, --- So.3d ----, 2012 WL 1414826 (Fla. 3d DCA April 25, 2012):
In yet another Miami case, yet another probate judge got reversed for removing yet another Miami PR without notice or an evidentiary hearing. Go Miami!!
Mercedes Lezcano appeals an order of the probate court, removing her as personal representative of the estate and co-trustee of the trust of her deceased brother pursuant to a generalized order instructing her to show cause why she should not be held in contempt for a purported failure, in her capacity as personal representative, to comply with “[certain] orders [of the court]” and “failing to place all income and assets into [a] restricted depository” and related alleged misdeeds. “Because [the] removal[s were] ordered without notice or an evidentiary hearing, ‘the ruling did not meet even the most rudimentary requirements of due process.’ “Zulon v. Peckins, No. 3D11–1511, 2012 WL 933013, at *1 (Fla. 3d DCA Mar. 21, 2012) (quoting LoCascio v. Estate of LoCasio, 78 So.3d 573, 574 (Fla. 3d DCA 2011)). We reverse and remand with instructions to reinstate Lezcano as personal representative of the estate and co-trustee of the trust, and discharge Mr. Mendez as curator of the estate.
Bowdoin v. Rinnier, --- So.3d ----, 2012 WL 639005 (Fla. 2d DCA February 29, 2012):
In this case the decedent died intestate. Under F.S. 733.301 the decedent's husband has statutory priority for appointment as PR. However, a court isn't bound by F.S. 733.301 if there's evidence proving the statutorily preferred person “lacks the necessary qualities and characteristics” to serve as PR. But again, the key word is evidence. Unproven allegations won't cut it, even if the person making those allegations is the decedent's mother.
A circuit court has discretion to appoint someone other than the preferred person as personal representative of an intestate estate. In re Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DCA 1976); Garcia v. Morrow, 954 So.2d 656, 658 (Fla. 3d DCA 2007). However, where a statutorily preferred individual is not appointed, the record must show that the preferred person is not fit to serve as personal representative. DeVaughn v. DeVaughn, 840 So.2d 1128, 1133 (Fla. 5th DCA 2003). If the record supports the conclusion that the preferred person “lacks the necessary qualities and characteristics” to act as personal representative, the court has discretion to refuse to make the appointment. Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996).
Ms. Rinnier produced no witnesses or evidence at the hearing to show that Mr. Bowdoin was disqualified from serving. Although we understand the dilemma faced by the circuit court given the serious nature of the allegations contained in Ms. Rinnier's petition, she was nevertheless required to support those allegations with evidence. In the absence of such an evidentiary basis, the circuit court was not free to appoint someone other than Mr. Bowdoin. We therefore reverse the circuit court's appointment of Ms. Rinnier and remand for an evidentiary hearing to determine whether Mr. Bowdoin, as the person having statutory preference, lacks the necessary qualities to administer his wife's estate. See id.