GEORGE M. BOWDOIN, INDIVIDUALLY, AND AS NATURAL GUARDIAN AND NEXT FRIEND OF BRITNEY BOWDOIN, APPELLANT,
v.
MARY L. RINNIER, APPELLEE
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George Bowdoin, the surviving spouse of an intestate decedent, appealed the circuit court's appointment of the decedent's mother, Mary Rinnier, as personal representative of the estate. The Second District reversed, holding that absent evidence showing the statutory preferred person (surviving spouse) is unfit, the court abuses its discretion by appointing a non-preferred individual.
A circuit court may exercise discretion to appoint someone other than the statutorily preferred person only if the record affirmatively shows that the preferred person lacks the necessary qualities and characteristics to serve as personal representative. Without evidentiary support for unfitness, the court abuses its discretion by bypassing the preferred person.
[1] A surviving spouse has statutory preference for appointment as personal representative of an intestate estate.
[2] A circuit court has discretion to appoint someone other than the statutorily preferred person as personal representative of an intestate estate.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where a statutorily preferred individual is not appointed, the record must show that the preferred person is not fit to serve as personal representative”
Establishes the requirement for evidentiary support when deviating from statutory preference in personal representative appointments
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Join FLexlaw to unlock all legal intelligenceCynthia Bowdoin died intestate, leaving her surviving husband George Bowdoin and minor child as sole heirs. The decedent's mother, Mary Rinnier, filed…
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Cynthia Bowdoin died intestate leaving her husband, George Bowdoin, and minor child as the sole heirs of her estate. The decedent’s mother, Mary Rinnier, filed a petition for administration requesting appointment as personal representative of her daughter’s estate. Mr. Bowdoin filed a counterpetition for administration seeking the appointment as the decedent’s surviving spouse. After a hearing, the circuit court granted Ms. Rinnier’s petition. Because we conclude the court abused its discretion in making the appointment, we reverse.
Section 733.301, Florida Statutes (2010), sets forth the order of preference for appointing a personal representative of an intestate estate as follows:
1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree.
§ 733.301(l)(b). Here, the circuit court recognized that Mr. Bowdoin has priority as the surviving spouse. However, rather than appointing Mr. Bowdoin as personal representative, the court determined that it was in the best interest of all parties that Ms. Rinnier be appointed.
A circuit court has discretion to appoint someone other than the preferred person as personal representative of an intestate estate. In re Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DCA 1976); Garcia v. Morrow, 954 So.2d 656, 658 (Fla. 3d DCA 2007). However, where a statutorily preferred individual is not appointed, the record must show that the preferred person is not fit to serve as personal representative. DeVaughn v. DeVaughn, 840 So.2d 1128, 1133 (Fla. 5th DCA 2003). If the record supports the conclusion that the preferred person “lacks the necessary qualities and characteristics” to act as personal representative, the court has discretion to refuse to make the appointment. Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996).
Ms. Rinnier produced no witnesses or evidence at the hearing to show that Mr. Bowdoin was disqualified from serving. Although we understand the dilemma faced by the circuit court given the serious *584nature of the allegations contained in Ms. Rinnier’s petition, she was nevertheless required to support those allegations with evidence. In the absence of such an eviden-tiary basis, the circuit court was not free to appoint someone other than Mr. Bow-doin. We therefore reverse the circuit court’s appointment of Ms. Rinnier and remand for an evidentiary hearing to determine whether Mr. Bowdoin, as the person having statutory preference, lacks the necessary qualities to administer his wife’s estate. See id.
Reversed and remanded with directions.
DAVIS and BLACK, JJ., Concur.
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Long v. Willis, 113 So. 3d 80 (Fla. 2d DCA 2013)…3.301(l)(b)(2), (2), Fla. Stat. (2009). However, the probate court has the discretion to appoint someone other than the preferred person if he or she is an unsuitable candidate to serve as personal representative. Bowdoin ex rel. Bowdoin v. Rinnier, 81 So. 3d 582, 583 (Fla. 2d DCA 2012) (citing In re Estate of Snyder, 333 So. 2d 519, 520 (Fla. 2d DCA 1976)). “Unsuitableness to administer may well consist in an adverse interest of some kind, or hostility to those [*84] immediately interested in the estate, wh…
Authorities Cited
- In re the Est. of Josephine Johnson Snyder, 333 So. 2d 519 (Fla. 2d DCA 1976)
- DeVAUGHN v. DeVAUGHN, 840 So. 2d 1128 (Fla. 5th DCA 2003)
- Env't Farms, Inc. v. The Honorable Susan W. Roberts, 676 So. 2d 440 (Fla. 2d DCA 1996)
- Padgett v. The Est. OF Natasha Maria Gilbert, 676 So. 2d 440 (Fla. 1st DCA 1996)
- Garcia v. Morrow, 954 So. 2d 656 (Fla. 3d DCA 2007)