Estate and Elder Law

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 representative."

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].

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