Probate court gets reversed for failing to appoint the statutorily preferred personal representative
Garcia v. Morrow, --- So.2d ----, 2007 WL 983053 (Fla. 3d DCA Apr 04, 2007)
I've written recently about probate courts being reversed for failing to appoint the personal representative named in a decedent's will (see here and here). This opinion picks up on the themes outlined in those cases . . . but in the intestate context.
In this case Judge Maria Korvick was reversed for refusing to appoint the statutorily preferred person as personal representative in the absence of evidence that he lacked "the necessary qualities and characteristics” to assume the position as personal representative.
Lesson learned:
The key word here is "evidence." In other words, it is reversible error for a trial court to refuse to appoint as personal representative the person with preference under F.S. 733.301 in the absence of specific findings of fact - developed in the context of a formal evidentiary hearing - that the statutorily preferred person lacks the necessary qualities and characteristics to assume the position as personal representative. Quoting the 5th DCA in DeVaughn v. DeVaughn, 840 So.2d 1128, 1132 (Fla. 5th DCA 2003), here's how the 3d DCA articulated the rule:
[W]e know that the probate court has the inherent authority to consider a person's character, ability, and experience to serve as personal representative. See Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996). However, if the statutorily preferred person is not appointed, the record must show that the person is not fit to be appointed. If the record supports the conclusion that the statutorily preferred person “lacks the necessary qualities and characteristics,” the court has discretion to refuse to make the appointment. Id.
I've recommended the Probate Litigation Blog to many estate planners, both informally and during lectures at seminars. This case is another example of the office practitioner mentality compared to the litigator mentality. Many attorneys work hard to develope a probate practice because it is less formal and offers a more relaxed practice. Juan's blog reminds us planners that there are times to recognize when we should co-counsel with a litigator, or at least be prepared when we have a matter that is adverserial under the rules. I think the relaxed atmosphere of probate can also affect the judges. It all works fine until someone appeals.
Hi Jeff -
I think you are absolutely right regarding the "cultural" differences between most probate practice and a general civil litigation practice. These differences have their strengths and weaknesses. I think the probate administration process would grind to a halt if every proceeding was administered like a trial. On the other hand, sometimes the formalities of a trial are both appropriate and fair to all concerned. I guess the important point is to simply be aware of these differences and be ready to compensate for them when needed.
Thanks for recommending this blog!
Regards. Juan.