Personal representative designation in Last Will and Testament – Convicted Felons

Florida Limitation on Convicted Felons Serving as Personal Representatives in Probate Administration

When contemplating preparing a last will and testament, there are many options that have to be considered before drafting can begin. One important consideration is deciding who to nominate as the personal representative of your estate.

A personal representative is a fiduciary who is appointed by the court to administer the decedent’s estate.. Depending on the jurisdiction, a personal representative may also be known or referred to as an executor, administrator, or other name. Florida Statute § 733.301 outlines who has preference in appointment as the personal representative in various scenarios. When the decedent dies testate, meaning with a last will and testament, preference is given to the personal representative nominated in the will.  If the nominated personal representative is unwilling, unable or unfit to serve, any successor nominated in the will has preference.    In the event all nominated personal representatives are unwilling, unable or unfit to serve, preference goes to the  person selected by a majority in interest of the persons entitled to the estate.  If there is no person selected by a majority, preference goes to a beneficiary under the will, and if more than one beneficiary applies, the court may select the person best qualified.

When a decedent dies intestate, meaning without a will, under Fla. Statute § 733.301(1)(b), preference is given first to the surviving spouse, next to a person selected by a majority in interest of the heirs, and finally to the heir nearest in degree to the decedent.  Similarly to preference in testate estates, if more than one heir nearest in degree applies, the court may select the one best qualified.

A person or entity must also be qualified to become a personal representative. For example, convicted felons are disqualified from acting as a personal representative unless their rights have been fully restored. This limitation was upheld recently by the Fourth District Court of Appeal in In re: Estate of Sharonda Renae Butler, 189 So.3d 1050 (Fla. 4th DCA 2016). The Fourth DCA upheld the trial court’s denial of a petition filed by the decedent’s father. The father claimed that regardless of having the prior felony conviction, he should not be disqualified as the personal representative as he was the sole heir to his daughter’s estate. The trial court held that the father was disqualified based on his status as a convicted felon and the appellate court affirmed.

Florida Statutes were recently revised to not only prevent convicted felons from becoming appointed as personal representative, but also to require mandatory disclosure in the event that a serving personal representative is convicted of a felony during the pendency of the probate administration.  Florida Statute § 733.3101(2) requires a personal representative, who was qualified at the time of appointment, to file and serve notice if at any time during the administration, the personal representative would not be qualified if application for appointment were then made.  Following notice, any interested personal has thirty (30) days to file a petition seeking removal of the personal representative.  If the personal representative does not provide notice, the personal representative shall be personally liable for fees and costs incurred in a subsequent removal proceeding if the personal representative is removed.

Therefore, when considering who to nominate as personal representative in your last will and testament, consider whether the person(s) you wish to nominate are qualified to act. Nominating a person, or persons, who are qualified and willing to be the personal representative may help prevent litigation and its associated fees and costs.

This article is intended to be a brief overview of statutes relating to personal representatives limitations and convicted felons. Individuals interested in how this information will personally affect them should consult with an attorney. Do not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to help with your estate planning needs and probate litigation legal matters.