Full question:
My brother was going through a divorce at the time of his sudden death. No will. He was separated over 2 years, divorce paperwork was in the courts. One son, 20 years old. His separated wife and has moved on and is living with someone as was my brother. I understand that she is entitled to 100% of the estate, which is just about upside down. She seems to think that he was hiding assets and refused to sign a waiver of his rights. She has threatened to get a lawyer. As a sibling, I am going to file to be personal representative. What are my odds of being granted personal representative? How can she interfere? Can I show poor character against her (I just found a courthouse website that shows that she has had approximately 10 cases against her in court (mostly business related, bankruptcy related), to include domestic violence protection order (not against my brother).
- Category: Wills and Estates
- Subcategory: Executors and Administrators
- Date:
- State: Florida
Answer:
As the surviving spouse of an intestate estate, the spouse would have preference to be appointed. Please see the following FL statutes to determnie applicability:
733.301 Preference in appointment of personal representative.—(1) In granting letters of administration, the following order of preference shall be observed:
(a) In testate estates:
1. The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.
2. The person selected by a majority in interest of the persons entitled to the estate.
3. A devisee under the will. If more than one devisee applies, the court may select the one best qualified.
(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.
733.302 Who may be appointed personal representative.—Subject to the limitations in this part, any person who is sui juris and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to act as personal representative in Florida.
733.303 Persons not qualified.—(1) A person is not qualified to act as a personal representative if the person:
(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
(c) Is under the age of 18 years.
(2) If the person named as personal representative in the will is not qualified, letters shall be granted as provided in s. 733.301.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
