Florida‘s Second District Court of Appeal just gave a reminder that, if you’re going to appoint someone other than the preferred person as personal representative of an intestate estate, you’d better have the record show that the preferred person is not fit to serve as personal representative.

In Bowdoin v. Rinnier, the appellate court reversed the circuit court’s appointment of Mary Rinnier, the decedent’s mother, as personal representative.  The problem?  The decedent’s surviving spouse had filed a petition for appointment.

Section 733.301, Florida Statutes, sets up the order of preference for appointing a personal representative of an intestate estate:

1.  Surviving spouse.

2. Person selected by a majority in interest of the heirs.

3. Heir nearest in degree.

The circuit court recognized that the surviving spouse had priority, but rather than appointing him, appointed the decedent’s mother based on a determination that it would be in the best interests of all parties if she was appointed.  Great, but that’s not how it works.

A Florida circuit court has discretion to appoint someone other than the preferred person as personal representative of an intestate estate.  However, to jump outside Florida’s statutory scheme, the record must show that the preferred person is not fit to serve.  Indeed, the record must support a conclusion that the preferred person “lacks the necessary qualities and characteristics” to act as personal representative.

The decedent’s mother produced no witnesses or evidence at the hearing to show that the surviving spouse was disqualified from serving.  While the decedent’s mother’s petition made very serious allegations, those allegations had to be supported with evidence.  Therefore, the appellate court remanded for an evidentiary hearing to determine whether the decedent’s surviving spouse lacked the necessary qualities to administer the decedent’s estate.