IN RE ESTATE OF OSCAR A. JOSE, DECEASED. JEAN W. JOSE, APPELLANT,
v.
OSCAR A. JOSE, JR., APPELLEE
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The Florida District Court of Appeal affirmed a county judge's decision to appoint alternate executors named in a will to administer ancillary probate proceedings in Florida, rejecting the widow's argument that she should be appointed instead under Florida's preference rules for administrators.
The court held that the County Judge correctly appointed the named alternate executors. The testator's express designation of competent alternate executors takes precedence over the statutory preference for the surviving spouse, and section 732.44 does not require appointment of a substitute personal representative contrary to the testator's intent.
“The law favors the appointment of successor or alternate personal representatives named in wills and unless plainly prohibited by law the courts will honor the wishes of the testator.”
Establishes the fundamental principle that testator-designated alternates are preferred in probate proceedings
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Join FLexlaw to unlock all legal intelligenceOscar A. Jose died testate in Indiana, requiring ancillary proceedings in Florida. The will named an Indiana corporation and an Indiana resident as pr…
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Oscar A. Jose died testate in Indiana and ancillary proceedings were necessary in Florida. The primary executors named in the will were not legally qualified to serve in Florida but the alternate executors possessed the general qualifications for appointment under the statutes of this state.1
The County Judge’s Court for Palm Beach County admitted the will to probate in Florida and issued ancillary letters testamentary jointly to Oscar A. Jose, Jr., and Catherine Frances Childs, the children of the decedent who were named in the will 2 as alternate personal representatives. From this order the widow, Jean W. Jose, appeals. Appellant takes the position that since the primary domiciliary executors are not qualified to serve in Florida, the Florida court erred in appointing the named alternate executors to administer the ancillary *890proceedings because, arguendo, section 734.-31(1) Fla.Stat., F.S.A.3 read in conjunction with section 732.44, Fla.Stat., F.S.A.4 gives the surviving spouse first entitlement to letters. The argument is plausible but not tenable.
The testator, himself, provided for alternate personal representatives should his primary executors not qualify. Such primary domiciliary executors could not qualify for the ancillary proceedings in Florida, and we hold that the County Judge acted correctly in issuing letters testamentary to the qualified alternate executors expressly designated by the testator.
The law favors the appointment of successor or alternate personal representatives named in wills and unless plainly prohibited by law the courts will honor the wishes of the testator. See 33 C.J.S. Executors and Administrators § 25; 21 Am.Jur., Executors and Administrators, § 54.
The fact that the named alternate executors are not also the domiciliary executors does not foreclose their presumptive right to appointment in the ancillary proceedings where the domiciliary executors are ineligible to serve in the ancillary jurisdiction; and this is so even though the testator’s surviving spouse may be ready, able and willing to serve. In other words, section 732.44(1), Fla.Stat., F.S.A. was not intended to require appointment of a substitute personal representative contrary to the expressed intent of the testator who affirmatively nominated competent eligible alternate executors.
Affirmed.
SHANNON, Acting C. J., and EL-MORE, FRANK H., Associate Judge, concur.
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Pontrello v. Est. OF Kenneth C. Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988)…is expressly disqualified or such discretion is granted by statute. North; Estate of Kenton. See also, Dutcher v. Estate of Dutcher, 437 So. 2d 788 (Fla. 2d DCA 1983); In re Estate of Murphy, 336 So. 2d 697 (Fla. 4th DCA 1976); In re Estate of Jose, 164 So. 2d 888 (Fla. 2d DCA 1964); § 733.301, Fla.Stat. (1985); 31 Am.Jur.2d Executors and Administrators § 46 (1967); Annotation, Power of Court to Refuse Letters Testamentary to One Named in Will as Executor, Absent Specific Statutory Disqualification, 95 A.L.R.…
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