Hernandez v. Hernandez, 2007 WL 120051 (Fla. 5th DCA Jan 19, 2007)
It was only about a month ago that I wrote here about the reversal of a probate court’s refusal to appoint the person designated in a will to serve as personal representative. In the linked-to case we again have a probate court being reversed for failing to appoint the personal representative named by the testator in his will. Why probate courts feel they have the discretion to brush aside perhaps one of the most important aspects of any person’s will — designating your PR — is a mystery to me. The following excerpt from Wikipedia’s definition of executorgives a good sense of how big a job being PR can be, and thus how important this choice is:
Typically the executor is the person responsible for offering the will for probate, although it is not absolutely required that he or she do so. The executor’s duties also include the disbursement of property to the beneficiaries as designated in the will, obtaining information about any other potential heirs, collecting and arranging for payment of debts of the estate and approving or disapproving creditor’s claims. An executor also makes sure estate taxes are calculated, necessary forms are filed and tax payments made, and in all ways assists the attorney for the estate. Also the executor makes all donations as left in bequests to charitable and other organizations as directed in the will. In most circumstances the executor is the representative of the estate for all purposes, and has the ability to sue or be sued on behalf of the estate. The executor also holds legal title to the estate property, but may not use that property for the executor’s own benefit unless expressly permitted by the terms of the will.
Given that the selection of a PR is so important, it’s little wonder that Florida law provides such deference to the choice expressed in a person’s will. Here’s how the linked-to opinion articulated Florida law on this point:
In Schleider, the Fourth District wrote:
The general rule of law is that trial courts do not have discretion to refuse to appoint the personal representative named by the testator in the will unless that person is disqualified by law. Clearly, the testator’s selection of a personal representative should be afforded great deference. Only in exceptional circumstances does a court have the discretion to refuse to appoint a person as personal representative who was named in the decedent’s will.
Schleider, 770 So.2d at 1253 (citations omitted); see also § 733.301(1)(a) 1., Fla. Stat. (2005).
In the linked-to case the probate court refused to appoint the designated PR because of animosity between the designated PR and his brother. The 5th DCA explained as follows why family-acrimony alone isn’t reason enough to ignore a person’s will:
[T]he trial court did not detail the facts that would support the denial of Ruben’s petition for administration, but referred only to the brothers’ conflict as its basis for declining to appoint either as personal representative. This was insufficient because a dispute between the estate’s beneficiaries, without more, does not constitute sufficient grounds to refuse to appoint an otherwise qualified person named as personal representative in the decedent’s will. See Schleider, 770 So.2d at 1254. Where a dispute will cause unnecessary litigation and impede the estate’s administration, and either the person lacks the character, ability, and experience to serve or exceptional circumstances exist, the totality of circumstances may permit the court to refuse to appoint the personal representative named in the will. Id. Here, the record does not support such a conclusion.