Removing a Nominated Personal Representative (And why the courts need discretion to do it)

Written by: Kendra E. Parris
Posted on: August 11, 2017
Est. Reading Time: 9 minutes

In Pontrello v. Estate of Kepler, 528 So.2d 441 (Fla. 2d DCA 1988), the court made a rather overwrought proclamation: “A judge treads on sacred ground… when he overrides the testator’s directions regarding the appointment of the person in whom the decedent placed his trust to administer his estate according to the powers given in the will.” Put less dramatically, the court is claiming that there is virtually no circumstance in which a trial court has discretion to refuse the appointment of a personal representative who has been named in a decedent’s will, as long as that person is technically qualified under the relevant Florida Statutes.

This is an odd bright-line rule in an area of law that is generally governed by equitable considerations, a quirk which wasn’t lost on the well-spoken dissent: “[I]t would be an anomaly to hold that a probate court, which has historically applied equitable principles in making its judgments, does not have the discretion to refuse to appoint [a nominated executor] simply because he did not fall within the enumerated list of statutory disqualifications.”

The reasons behind the Pontrello rule of disallowing such discretion, and of treating the nomination of a PR as “sacred ground,” all boil down to the following: “Because it’s what the guy wanted.” The decedent’s intent and desire are sacred. We should not second-guess the dead.

That’s about it. And if we were talking about the substantive provisions of the will, like who gets what, the argument might hold some water.

Of course, as applied to the nomination of the PR, such an argument fails to survive even a modicum of scrutiny. The personal representative is not the goal of a will. The personal representative is a means to an end. The purpose of naming someone is to ensure that the will is administered properly and that items be distributed to whom they are intended to pass. To hold the PR nomination sacrosanct, even in the face of evidence that the named personal representative cannot or will not faithfully execute the substantive terms of the will, is simply silly.

And it’s not even supported by applicable statute. Section 733.504, F.S., lists nine reasons why an appointed personal representative, including one who was named by the decedent in the will, can be removed from the post. The court in Pontrello, after asking the pertinent rhetorical question — namely, “If we can remove a PR for various reasons, why can’t we deny her appointment in the first place if the record already contains evidence that would suffice to permit removal? “ — simply doubles down and insists that we may not read reasons for removal into the initial appointment decision. Why? You guessed it: “Because it’s what the guy wanted.”

Think about how absurd this is: all of the evidence we’d need to have the named PR removed are present prior to her petition for administration and appointment. But rather than simply denying the appointment and installing a suitable PR who is willing and able to carry out the actual terms of the will, the court has to: appoint the PR, issue her letters of administration, give her authority to start marshaling the assets, wait for an interested person to file a petition for removal in adversarial proceedings, and litigate the issue of the PR’s removal before finally appointing an appropriate person. And that’s not the end of it: since the PR has likely already taken substantial step in gathering the decedent’s property and compiling an inventory, all of these things must be transferred to the guy who should have been appointed in the first place. He’ll likely have to re-do some of the steps already completed. We’re now six months into estate administration, and the ball hasn’t met enough gravity to even start rolling down the hill toward final distribution.

Because it’s what the guy wanted.

Don’t get me wrong; where possible and appropriate, the testator’s wishes in this regard should be respected. The courts’ discretion to refuse an appointment should not be plenary. I will even buy the underlying holding in Pontrello that the trial court abused its discretion when it refused to appoint the nominated PR simply because the person’s appointment probably would have cost the estate a bit more. Nor are mere quarrels between the named PR and the immediate beneficiaries sufficient, standing alone, to refuse the initial appointment. But when we know from the outset that the appointment of the named PR is going to eventually result in a peremptory removal after letters are issued — when we know that estate and judicial resources are going to be essentially squandered — it makes no sense whatsoever to deny the trial court the discretion to refuse the appointment.

Put it this way: a testator has every right to bind his estate to spend a little more in order to permit his desired person first dibs at administration. And he has every right to bind the beneficiaries to working through uncomfortable personal grievances. But he does not have the right to waste the court’s time or resources by binding it to a PR whom we know from the outset will have to be removed. That, my friends, is where the testator has tread on someone else’s sacred ground.

Call it blasphemy, but it’s been my experience that estate planning clients are far more concerned that they property be distributed correctly than they are about who should do the distributing. Pontrello is a bizarre elevation of style over substance. Let’s explore some “real world” examples of how the rule leads to utter absurdities. (Names have been conjured to protect the imaginary.)

We are probating the Last Will and Testament of Elvis Gary. The goal of Elvis’s will is for his beloved velveteen print of Dogs Playing Poker to end up in the hands of his precious nephew Johnny Carton. Whether it’s his sister Wilma who delivers the print or his sister Molly is rather inconsequential, as explained to me before he passed; the point of appointing one or the other to administer the estate is simply that Elvis expected (although obviously could not know for sure) that one would do a more faithful and efficient job of making the transfer. He decided, after much hemming and hawing, to nominate Molly.

But say that Molly takes to the telephone shortly after Elvis’s death to inform Johnny that she hates him, she has always hated him, she has no intention of handing over the print (because he “will never appreciate it” and “it is a priceless item that deserves to be with someone who will take care of it”), that if he wants to fight her on it he’ll have to get a lawyer who will “eat up all your inheritance” and that “this is war.” It is safe to assume that Elvis had no idea that Molly harbored such ill will toward Johnny (or such fondness for velveteen prints). If he had, he wouldn’t have appointed her as PR.

And this is the situation that we run into constantly when taking clients through the probate process. Before the body is cold, family members show true colors that the decedent had no idea even existed (something like a dark puce in my experience). The prospect of a monetary windfall or of inheriting a precious family heirloom turns an otherwise perfectly sane individual into a petty, irrational tyrant. Negative feelings from the Thanksgiving of 1988 suddenly surface, because Johnny destroyed the best serrated bread knife by using it to carve the turkey and wouldn’t shut up about the election and how Ron Paul was robbed, and Molly is pretty sure that Johnny called her a “morbid old witch” behind her back during family reunions. The decedent couldn’t have anticipated this very toxic dynamic before he passed away.

How the decedent would have wanted his belongings to pass likely wouldn’t have changed had he known. He’d still very much like Johnny to get the print. But precisely whom he would have wanted to accomplish his ultimate distributions definitely would have been given a second thought.

When we talk about the personal representative, we’re not just talking about an agent of the will and conduit of the decedent’s stuff. We’re talking about a person who will have fairly involved interactions with the court and with the beneficiaries. While the decedent’s wishes as to whom he would like to see inherit – the substantial terms of the will – should of course be held sacrosanct, the decedent has no purview to bind the courts to interact with a needlessly litigious agitator who doesn’t wish to play by the rules. Where the decedent’s will purports to require the courts spend unnecessary time and resources to ultimately accomplish the goals of the will by naming a patently unsuitable PR, the decedent’s wishes on the subject can and must take a back seat to considerations of judicial resources, administration, and civility.

Because this is what the Pontrello rule means: even when we know the named PR has no intention of doing the right thing, even when we know that the named PR hasn’t done the right thing up to the point of petitioning for administration (e.g., maladministration of a domiciliary proceeding), we have to endure the canine obstacle course method of appointing a personal representative.

Fortunately, along came the Fourth DCA in Schleider v. Estate of Schleider, 770 So. 2d 1252 (2000) to put an end to this nonsense. Sort of.

See, the whole artifice described above doesn’t apply to intestate estates, where the courts have a statutory list of individuals with “preference” in appointment (surviving spouse, then person chosen by the heirs with a majority interest, etc.). In such cases, courts have long been deemed to have discretion to refuse the appointment of the person(s) with statutory preference. Pontrello explained this distinction by claiming that while statutory preference in intestate estates derives from judicial authority, the preference in appointment in testate estates “derives from the testator.” This, of course, is begging the question of why the testator’s choice should be placed above all other reasonable considerations, including statutory reasons for removal.

Schleider ruled that this distinction between testate and intestate estates is rather nonsensical, and that the criteria for considering a preferred appointee in intestate estates applies equally validly in testate ones. The court ruled that discretion exists to reject the appointment of a named personal representative “if a dispute which will result in unnecessary litigation and impede the administration of the estate is combined with other factors,” such as the nominated person’s “character, ability and experience to serve as personal representative.” Schleider at 1254, citing Padgett v. Estate of Gilbert, 676 So. 2d 440, 443 (Fla. 1st DCA 1996). “Section 733.301, Florida Statutes (1999) (formerly § 732.44, Fla. Stat. (1973)), does not bestow an absolute right [even in testate estates] upon those who are given preference to be appointed.” Id.

The Third DCA in Garcia v. Morrow, 954 So. 2d 656, 658-9 (Fla. 3d DCA 2007) and the Fifth DCA in Hernandez v Hernandez, 946 So. 2d 124, 127 (Fla. 5th DCA 2007) have explicitly followed the holding in Schleider. The Second continues to follow its own precedent in Pontrello. And the First DCA has firmly decided in the vein of Pontrello as well, holding in Werner v. McCloskey, 943 So.2d 1007 (2006) that there is essentially no discretion to refuse a nominated appointment. It is a 3-2 DCA split, so one’s ability to prevent the appointment of a named PR depends on which judicial circuit you’re petitioning to, and to date (as far as my shepardizing has found), the Florida Supreme Court has not clarified the issue. I suspect they’d land more toward the Schleider approach, for the reasons I set forth above. With the enormous probate case load in every circuit, handing the courts a method to cut down on needless litigation would likely be welcomed as a legitimate grounds for equitable discretion.

In the meanwhile, if Crazy Aunt Molly is named by your Uncle Elvis to administer the estate, the best you can do is cross your fingers and hope he died in a good jurisdiction…