Refusing to Appoint a Named Personal Representative

The administration of an estate is never as simple as it seems, even when there is a will. Often, issues arise with the Personal Representative of the estate, such as a dispute over who the Personal Representative should be or a question of the Personal Representative’s actions or ability to administer the estate. In situations where a named Personal Representative is either unqualified to represent the estate under Florida Statute Section 733.301 or is unfit to represent the estate because they have an adverse interest or are mishandling estate assets, there are ways to remove the Personal Representative and appoint a successor. However, what happens in a situation where courts find that neither party is fit to be the Personal Representative of an estate?

Curators are appointed by probate courts when there is a problem with the Personal Representative of an estate. The curator is an independent third party who administers the estate. The use of a curator arises most often when a decedent dies intestate and there is a conflict over who should serve as the Personal Representative of the estate or when the Personal Representative of the estate is unfit to perform their duties. Most often, issues surrounding the appointment of a curator arise in the context of a decedent that passes away without a will. However, problems can also arise when there is a will that specifically names a Personal Representative of an estate, but an interested party seeks to have a curator appointed instead.

It is the general rule that trial courts do not have the discretion to refuse to appoint the Personal Representative specified by the testator in the will unless the person is expressly disqualified under the statute or discretion is granted within the statute. See In re Estate of Miller, 568 So. 2d 487, 489 (Fla. 1st DCA 1990); Fla. Stat. § 733.301; Pontrello v. Estate of Kepler, 528 So.2d 441, 443 (Fla. 2d DCA 1988) (recognizing “that in some circumstances a trial court may exercise a very limited discretion to refuse to appoint such a Personal Representative”); Werner v. Estate of McCloskey, 943 So. 2d 1007, 1008 (Fla. 1st DCA 2006). “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 v. Estate of Schleider, 770 So. 2d 1252, 1253 (Fla. 4th DCA 2000); see, e.g., Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996); In re Estate of Miller at 489; Pontrello, at 443; In re Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DCA 1976). The court in In re Estate of Miller did not appoint a curator because there was insufficient evidence to find that the appellant met any of the standards for doing so.

However, in Estate of Snyder, the second district held that an individual may be considered unsuitable to administer the estate if there is (1) an adverse interest of some kind, (2) hostility to those immediately interested in the estate, or (3) an interest adverse to the estate itself. See Estate of Snyder at 520. “Where the record supports the conclusion that a person occupying the position of statutory preference does not have the qualities and characteristics necessary to properly perform the duties of an administrator, it would be an anomaly to hold that a probate court, which has historically applied equitable principles in making its judgments, does not have the discretion to refuse to appoint him simply because he did not fall within the enumerated list of statutory disqualifications.” Schleider v. Estate of Schleider at 1254 (quoting Estate of Snyder, 333 So.2d at 521); see also Padgett v. Estate of Gilbert. Additionally, If the record supports the conclusion that the person lacks the necessary qualities and characteristics, the court has discretion to refuse to appoint even a person occupying a position of statutory preference who is not specifically disqualified by the statute.” See Padgett at 676.

Thus, when a Personal Representative is disqualified by statute or if there is an adverse interest of some kind, a court does have discretion to refuse to appoint a Personal Representative named in a will. While this discretion is limited, it is logical – the court should not be burdened with removal proceedings that can be avoided by simply refusing to appoint the Personal Representative in the first place.

If you or someone you know wish to have a Personal Representative removed or wish to defend against attempts to have a Personal Representative removed, the knowledgeable and experienced team at Chepenik Trushin LLP is ready, willing, and able to assist you. Please do not hesitate to contact us.