What is a Petition for Administration
In a Florida probate proceeding if you have not initiated the case, you may be surprised to receive, typically via US certified mail return receipt requested, a document called a Petition for Administration. Florida law requires that this document be served in a manner with delivery tracking or in any other method of service acceptable under the Florida Rules of Civil Procedure (ie a process server).
The Petition for Administration is meant to set forth the basic information regarding the decedent, including his or her residence, date of death and basic family structure (if no will) or intestacy structure if there is a will. This document starts a probate proceeding. The document will also identify the venue (ie the county) where the proceeding shall take place. Importantly it will also contain the Petitioner’s (the person executing the document) best guess as to the assets in the estate. If the assets end up being less or more than initially anticipated in the Petition, the probate administration simply adjusts to encompass these changes through a later filing called an inventory. The Petition will also identify either the beneficiaries in the estate (if there is a will) or the heirs entitled to a share in the probate assets by virtue of the family structure and rules of intestate succession. Finally and importantly, this document is typically filed by a Petitioner seeking to become the Personal Representative of the Estate.
Notice of the Petition & Preference of Appointment
Florida law requires that this document be served with another document called “Formal Notice.” The Formal Notice document is much like a cover sheet to the actual petition and simply sets forth the fact that you have twenty (20) days to object to the Petition from the date upon which you received it. The exception to the notice requirement is if the Petitioner has preference of appointment as identified in Fla. Stat. 733.301 which provides:
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.
So if the decedent has a Last Will and Testament, the preference of appointment of the Personal Representative is the person named to serve in that role. If there is no will (intestate proceeding) then preference of appointment goes first to the surviving spouse, if any, then to the person selected by a majority in interest of surviving family members. So unless the Petitioner has preference to be appointed, he or she must serve a copy of the Petition for Administration on the other heirs or beneficiaries in the estate. Once received the beneficiary/heir, a twenty (20) day objection period begins.
Should you Object to the Petition for Administration?
If you fail to timely object to the Petition for Administration, in Florida the Petitioner may be appointed the Personal Representative of the Estate and thus become empowered under the Florida Probate Code to take certain actions. There are a number of reasons you may want to object to the proposed individual becoming the Personal Representative. Here are some major categories:
1. You are entitled to preference of appointment
If you are named in the Last Will and Testament to serve as a Personal Representative with a higher priority than the Petitioner you are entitled to exercise your right to this role. Similarly in Florida probate proceedings without a will (intestate) if you are the surviving spouse or the person selected by a majority of interested family members you may wish to exercise your right to become the Personal Representative. If so you will need to file an objection and retain an attorney to establish your entitlement to become the Personal Representative under Florida law.
2. The Petitioner is not Qualified to Serve
Often the nominated personal representative or the person with priority in an intestate proceeding is simply not the best person to be in charge of an Estate. Florida law has some statutory restrictions set forth in Fla. Stat. 733.303 as follows:
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.
So if the proposed Personal Representative has a felony record or has physical and mental restrictions that would prevent serving as a Personal Representative, Florida law would prevent their appointment. Importantly the Court will not do an examination of this criteria. If you are aware of criteria that should prevent the appointment of a Personal Representative you should timely object and notify the Court.
The other basic restrictions apply to non-residents. Fla. Stat. 733.304 provides:
733.304 Nonresidents.—A person who is not domiciled in the state cannot qualify as personal representative unless the person is:
(1) A legally adopted child or adoptive parent of the decedent;
(2) Related by lineal consanguinity to the decedent;
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person
3. The Petition for Administration Contains Fraud or Error
Finally if the Petition for Administration omits a family member that the Petitioner knows exists or otherwise contains any fraudulent or incorrect information this will serve as a basis for an objection.
Any objection timely filed will in most circumstances result in the need for a hearing in order to determine the appropriate Personal Representative. If you have received a Petition for Administration and have any concerns about the probate or qualifications of the Petitioner whatsoever, give our office a call to discuss your case.