Under most circumstances, a spouse has a higher preference in the selection process for the appointment of a personal representative as long as there are no grounds of contention against the surviving spouse. In George M. Bowdoin, natural guardian and next friend to Britney Bowdoin v. Mary L. Rinnier, No. 2010-3413 (Fla. 2nd DCA 2012), the mother of the decedent was initially chosen over the surviving spouse to be the personal representative. Upon appeal, the court reversed the trial court’s order based upon lack of evidentiary basis established against the spouse. Therefore, the spouse, George M. Bowdoin, was appointed the personal representative of Cynthia Bowdoin’s estate.
At the time of the appeal, the order of preference set forth in section 733.301, Florida Statutes (2010) was as follows for an intestate estate:
1) Surviving spouse
2) Person selected by the majority in interest of the heirs
3) Heir nearest in degree
See §733.301(b). Similar to my blog on Guardianship Appointment at Judge’s Discretion, order of preference rule applies to personal representative appointments as well. The decision is at the judge’s discretion as long as there is no abuse of discretion. Case law supports a circuit court has discretion to appoint a personal representative of an intestate estate other than the preferred person.
However, this does not mean a court can disregard the order of preference without grounds for its decision. In fact, the record must reflect that the statutorily preferred person is not fit to serve as the personal representative of the estate.
Also, the court needs to ensure the record supports the conclusion. If the court determines that the preferred person: “lacks the necessary qualities and characteristics” to serve as the personal representative, then the court may use its discretion to refuse to make the appointment.
BRIEF CASE HISTORY
In re Bowdoin, Cynthia Bowdoin died without leaving a will. As a result, intestate succession resulted in leaving her husband, George Bowdoin, and her minor daughter Britney Bowdoin as the sole heirs of her estate. A petition for administration was filed by Mary Rinnier, decedent’s mother, requesting for her to be appointed as personal representative of her daughter’s estate. In Ms. Rinnier’s petition she made serious allegations regarding Mr. Rinnier. Thereafter, the decedent’s husband, George Bowdoin, filed a counter-petition for him to be appointed personal representative.
Based upon the allegations made by Ms. Rinnier, the court was faced with the dilemma of addressing the serious nature of her allegations stated in her petition. The trial court rendered their decision in favor of Ms. Rinnier. Unfortunately, the trial court abused its discretion for the following reasons:
1) At the trial court hearing Ms. Rinnier did not produce any witnesses to show that the decedent’s spouse was disqualified from serving.
2) Ms. Rinnier produced no evidence to substantiate that the decedent’s spouse should be disqualified from serving.
As a result, due to the lack of an evidentiary basis, the trial court was not free to choose someone other than Mr. Bowdoin unless evidence and testimony substantiates its decision. Therefore, the personal representative appointment was reversed and remanded for an evidentiary hearing to make a determination whether Mr. Bowdoin, who is the person having statutory preference, lacks the necessary qualities to administer his wife’s estate.
Lesson learned is that allegations need to be supported by evidence. A party needs to request an evidentiary hearing to present evidence and provide witnesses to substantiate their allegations.
If you have any concerns regarding the appointment of a Personal Representative of an estate or feel you may be more qualified as a Personal Representative over another individual, contact Florida Probate Litigation Attorney Thomas Upchurch to discuss your probate litigation matter at (386) 272-7445 or email him at firstname.lastname@example.org for your initial consultation.
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