The same evidence that authorizes a probate judge to remove a personal representative nominated in your will could get her reversed on appeal for refusing to appoint this same person as personal representative at the outset. Same facts, same players, opposite legal results.
How is this possible?
Answer: there are dramatically different statutory criteria for the appointment and removal of personal representatives. Removal proceedings are governed by the broad scope of F.S. 733.504, disqualification-from-appointment proceedings are governed by the much narrower F.S. 733.303.
For example, if the nominated personal representative under your will has “conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole,” a probate judge is statutorily authorized to remove that person from office under F.S. 733.504(9). Unfortunately, as the 1st DCA told us over a decade ago in Werner and reminds us again in its recent Araguel opinion discussed below, this same conflict of interest doesn’t disqualify a nominated personal representative from getting appointed in the first place under F.S. 733.303. Same facts, same players, opposite legal results. That’s a problem.
After holding a hearing on an objection to the appointment of the nominated personal representative under the decedent’s will, the trial court determined that there were “tangible and substantial reasons to believe that damage [would] accrue to the estate if [the nominated person] were appointed Personal Representative … because the facts presented display[ed] an adverse interest to the Estate.”
Based on this evidence the trial court entered an order denying the appointment of the nominated personal representative. It’s a sensible ruling. If these facts warrant removal, why expose the estate to harm by appointing the personal representative in the first place? Too bad this kind of common sense is contrary to state law. So saith the 1st DCA:
To the extent the trial court relied upon Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000), in concluding that it had discretion to deny the appointment of the person named in the decedent’s will, that reliance is misplaced because Schleider recognized a degree of discretion that is inconsistent with this court’s binding precedent. For instance, in Schleider, the Fourth District relied upon the dissenting opinion in Pontrello v. Estate of Kepler, 528 So. 2d 441, 445 (Fla. 2d DCA 1988) (Campbell, J., dissenting), for the proposition that the trial court may refuse to appoint a personal representative named in a will upon the basis of facts presented to the court at the time of appointment that—if presented after the appointment—would support removal of the personal representative. 770 So. 2d at 1254. However, this court in Werner recognized that there are different statutory criteria for the appointment and removal of personal representatives. 943 So. 2d at 1008; accord Pontrello, 528 So. 2d at 444 (“[S]ince the legislature has provided separate and distinct statutes to deal with the appointment of the personal representative, the terms of the removal statute should not be read into the explicit appointive statutes.”).
The appoint-then-remove solution
While the current state of the law may not be ideal, there’s nothing to be gained from simply ignoring it and wasting time and money on an appeal you’re likely to lose anyway. For example, as the 1st DCA itself noted in its Werner opinion, while a conflict of interest may not disqualify a named personal representative from getting appointed, there’s nothing stopping you from immediately seeking his removal post appointment:
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.”
There’s gotta be a better way
The appoint-then-remove solution works legally, but as a practical matter it’s a hurdle that for many may be insurmountable. Estate proceedings are usually low budget, intra-family affairs. Procedural barriers that unnecessarily add expense and delay to an already emotionally charged court process are often outcome determinative. As in, families are left with an unjust result (e.g., a personal representative whose personal financial interests are in conflict with his fiduciary duties to the decedent’s heirs) simply because they can’t afford to pay for all the lawyering that’s needed to get to the just outcome. That may be “legal” but it’s not “right.”