08/25/2011 05:31:00 PM EST
Can Minor Children Pick the Personal Representative of an Estate?
In Florida Florida Statute 733.301(1)(b)(2) defines how a
minor child can participate in a probate proceeding. Minor children are
not able to participate directly, but can do so through a court
appointed guardian over their property. In a recent Florida case
out of the 2nd District of Florida the Appellate court found that it is
an error not to give the minor children a opportunity to have a guardian
appointed before appointing a personal representative.
The court found that although the mother, as natural parent, had no
right to select the personal representative, she did have the right to
file objections on behalf of her children. Significantly, the statute
does not entitle a natural guardian to such a right. Rather, section
733.301(2) provides that "[a] guardian of the property of a ward who if
competent would be entitled to appointment as, or to select, the
personal representative may exercise the right to select the personal
Although Florida Probate Rule 5.040(a)(2) provides that where an
interested person on whom formal notice is served does not serve written
defenses within twenty days, the probate court may consider the
pleading ex parte, Florida courts treat this rule as merely procedural;
it is "'in no sense' a statute of limitations or a mandatory non-claim
provision." Tanner v. Estate of Tanner, 476 So. 2d 793, 794 (Fla. 1st
DCA 1985) [enhanced version available to lexis.com subscribers].
View more from the Florida Estate Planning Lawyer Blog.
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