Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA Feb. 11, 2004)
Fifteen months after the court signed letters of administration appointing Henry Pass, a non-resident attorney, as co-personal representative of the decedent’s estate, the decedent’s daughter, Adriaan Angelus, filed a petition seeking to remove him as personal representative. Pass had initially filed a petition for administration that admitted he was a non-resident of Florida, but also claimed that he was the decedent’s nephew. At the hearing on the petition to remove him, Pass admitted that he was the blood nephew of the decedent’s former husband, not of the decedent. Consequently, Pass did not fall within the exception for blood relatives carved out in Section 733.304 to the general residency requirement imposed on Florida personal representatives. Notwithstanding this admission, the probate court dismissed the removal petition ruling that it was time barred by the three-month statute of limitations period established by Section 733.212.
The 3d DCA reversed the probate court’s ruling on two grounds. First, the court noted that Florida Probate Rule 5.310 places the burden on the personal representative, as a fiduciary, to provide all interested parties with notice in the event the personal representative is not legally qualified to serve. In this case, the personal representative did not provide the requisite notice. Consequently, the 3d DCA held that applying the three-month statute of limitations period contained in Section 733.212 to bar the removal petition would render Rule 5.310 "meaningless" and "improperly shift the burden of discovery of an applicant’s misrepresentations to the court and interested parties." Additionally, the court noted that Section 733.212 fell under Part II of Chapter 733 ("Commencing Administration"), and that Section 733.304 fell under Part III of Chapter 733 ("Preference in Appointment and Qualifications of Personal Representatives"). Finding that there was no "time limit" specified with respect to the qualification provisions found in Sections 733.304 and 733.3101 of Part III of Chapter 733, the court held that there was "no basis to engraft the three-month limitation of the commencing administration statute onto the explicit provisions of the qualifications statute . . . particularly where the applicant was never otherwise legally qualified to serve."