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Stipulation of Last Will & Testament and Appointment of Personal Representative

Written by on Oct 7, 2008| Posted in: Estate Litigation

Ouch! Stinging Stipulations: Florida’s First District Court of Appeal reverses trial court’s appointment of personal representative of estate based on strict application of probate statute and the litigants’ own stipulation.

As a probate litigation attorney, I frequently stipulate to a variety of things as a matter of professional courtesy and/or for judicial economy and efficiency. However, as the opinion released today by the First district Court of Appeal reminds us, stipulations have implications and consequences that are sometimes visible only to an experienced eye.

In McKormick v. McKormick, 33 Fla.L.Weekly D2309b (Fla. 1st DCA, 1D07-6249, September 29, 2008) the decedent died in 1999. In 2006, after no will was filed and no estate opened, the decedent’s son, Timothy, filed a petition for administration of his father’s estate as an intestate proceeding and sought appointment as personal representative and he was so appointed the following day on an ex parte basis. In 2007, the decedent’s other son, Lee, filed and served a counter-petition for administration. In the counter-petition, Lee identified the decedent’s last will and testament, proffered the same for administration, and sought appointment as personal representative of the decedent’s estate based upon decedent’s nomination of Lee in the Last Will and Testament. The counter-petition also sought revocation of the previously issued letters of administration toTimothy.

Before the hearing in probate court, the parties stipulated to admission of decedent’s Last Will and Testament to probate. After hearing, the probate court ruled that Timothy could continue to serve as Personal Representative.

The First District reversed the Probate Court’s continued appointment of Timothy. The appellate court relied on section 733.301(1)(a) of the Florida Probate Code, which states that when granting letters of administration, the probate court shall, in testate estates, allow preference to the personal representative nominated by the will. “Nothing in section 733.301(1)(a) purports to vest discretion in the trial courts to disregard the preference there specified, as long as the personal representative nominated by the decedent is statutorily qualified to serve.” Warner v. Estate of McCloskey, 943 So. 2d 1007, 1008 (Fla. 1st DCA 2006).
The First District Court of Appeals also relied upon section 733.301(5) of the Florida Probate Code which provides that after letters have been granted in either a testate or an intestate estate, if any will is subsequently admitted to probate the letters shall be revoked and new letters granted. Therefore, by stipulating to admission of the will to probate, Timothy waived any objections to the counter-petition advancing the will and seeking to procure appointment of Lee as personal representative.

This is an important reminder to think through all the consequences of a stipulation in the context of a will contest or similar probate litigation proceedings.

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