J. Kelly Kennedy, Attorney/CPA, PLLC

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What is preference in appointment in estate administration?

The laws in the State of Florida are important when dealing with probate issues. With estate administer, the law has a preference when it comes to the appointment of a personal representative. There are different orders of preference based on whether it is a testate estate or an intestate estate. Knowing how the law deals with these circumstances is a key with these matters to ensure there are no complications or mistakes that can cause issues as time passes.

When letters of administration are granted for testate estates, the following order must be adhered to: the personal representative or the successor who is nominated by the will or based on a power that was provided in the will; the person who was selected by a majority in interest of those who are entitled to the estate; a devisee based on the will - if there is more than one, the court will select the individual they think has the highest qualifications. With intestate estates, the following will be the order of preference: the surviving spouse; a person who was selected by the majority in interest of the heirs; the heir who is nearest in degree with the best one selected if there is more than one.

If there is a guardian of the property of a ward who would be entitled to be appointed if he or she was competent or to pick the personal representative, the guardian can pick the personal representative. If there is no application made in a testate or intestate estate and there is no application made, the court can select a capable individual. It cannot be someone who works for the court or holds public office under the court; and it cannot be someone who is employed by or holds office under the judge who exercises the jurisdiction of the probate.

The following are not viewed as qualified to be a personal representative: someone who was convicted of a felony; a person who mentally or physically cannot perform the duties; or someone under 18-years-old. These are just some of the rules and concerns that can arise with estate administration that can be difficult to understand. For assistance, speaking to a legal professional experienced in a wide range of probate issues is a wise decision.

Source: leg.state.fl.us, "733.301 -- Preference in appointment of personal representative.," accessed on Dec. 27, 2016

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