If there is NO Last Will and Testament, the Florida Statutes indicate who has priority to act as personal representative (PR) and the law aligns with common sense.
Florida Statute 733.301
733.301 Preference in appointment of personal representative.—
(b) In intestate estates:
1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified.
(2) A guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative.
(3) In either a testate or an intestate estate, if no application is made by any of the persons described in subsection (1), the court shall appoint a capable person; but no person may be appointed under this subsection:
(a) Who works for, or holds public office under, the court.
(b) Who is employed by, or holds office under, any judge exercising probate jurisdiction.
(4) After letters have been granted in either a testate or an intestate estate, if a person who was entitled to, and has not waived, preference over the person appointed at the time of the appointment and on whom formal notice was not served seeks the appointment, the letters granted may be revoked and the person entitled to preference may have letters granted after formal notice and hearing.
(5) After letters have been granted in either a testate or an intestate estate, if any will is subsequently admitted to probate, the letters shall be revoked and new letters granted.
It is rare that an estate has to look further than “the heir nearest in degree” but it happens occasionally.
Remember that this only applies when there is no Will, however, it may also be considered if the person nominated in the Will is ineligible to serve.
If the person nominated to act as PR:
- Has been convicted of a felony,
- Is mentally or physically unable to perform the duties and
- Is under the age of 18 years
then the court will not allow the nominated person to act or serve as PR.
