Are there any limitations that govern when I can attempt to remove a personal representative who was not qualified to serve under Florida law?
Florida Statute §733.212(3) reads as follows:
(3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.
I cannot stress how important it is to file objections within the three month period is the objection related to any issues listed above. Concerning personal representatives, the Florida Supreme Court recently held:
For the reasons explained below, we hold that section 733.212(3) bars an objection to the qualifications of a personal representative, including an objection that the personal representative was never qualified to serve, if the objection is not timely filed under this statute, except where fraud, misrepresentation, or misconduct with regard to the qualifications is not apparent on the face of the petition or discovered within the statutory time frame.
See Hill v. Davis 2011 Fla. Lexis 2048, 36 Fla. L. Weekly S 487 (Fla. 2011).
This is signification decision because Fla. Stat. 733.3101 reads:
Any time a personal representative knows or should have known that he or she would not be qualified for appointment if application for appointment were then made, the personal representative shall promptly file and serve a notice setting forth the reasons. A personal representative who fails to comply with this section shall be personally liable for costs, including attorney's fees, incurred in any removal proceeding, if the personal representative is removed. This liability shall be cumulative to any other provided by law.
So what happens if a personal representative knows or should know that he or she is not qualified but the reason for the lack of qualification was clear on the face of the Notice of Administration? The Florida Supreme Court decision above appears to foreclose a challenge to the personal representative. The lesson here is that when you receive mail from a law firm in a probate matter if you don't understand what it means YOU MUST CONTACT AN ATTORNEY OR RISK LOSING IMPORTANT RIGHTS. For more information contact Florida Bar Board Certified wills, trusts and estates expert Cody & Linde, PLLC today at 239.939.7100.