CopyCited 44 times | Published | Supreme Court of Florida | 1980 Fla. LEXIS 4410
...on, amicus curiae. *42 ALDERMAN, Justice. Meyer Pincus appeals an order of the circuit court denying his petition for appointment as a co-personal representative of the estate of Leo Greenberg. Upholding the constitutionality of sections
733.302 and
733.304, Florida Statutes (1977), the trial court denied this petition on the basis that Pincus was not a resident of Florida and was not related to Greenberg....
...Against challenges that they violate the equal protection and due process clauses of the fourteenth amendment and the privileges and immunities clause of article IV, section 2 of the Constitution of the United States, we uphold the constitutionality of sections
733.302 [1] and
733.304 [2] and affirm. Under these statutory provisions, a nonresident of Florida who is not related to decedent as specified in section
733.304 may not qualify as a personal representative....
...al rights implicating utilization of the strict scrutiny test. Relying on Shapiro v. Thompson ; Dunn v. Blumstein ; and Memorial Hospital v. Maricopa County,
415 U.S. 250,
94 S.Ct. 1076,
39 L.Ed.2d 306 (1974), Pincus argues that sections
733.302 and
733.304 infringe upon the testator's fundamental right to *44 travel and, therefore, the strict scrutiny test must be applied....
...t the broader implications of this transposition in other areas of substantive law would destroy the independent power of each state under the constitution to enact laws uniformly applicable to all of its residents. We find that sections
733.302 and
733.304 do not penalize the exercise of the testator's right to travel in the sense contemplated by the Supreme Court in those decisions where it has applied the strict scrutiny test....
...Since neither a suspect class nor a fundamental right is affected by the legislation in question, the rational basis or minimum scrutiny test applies in evaluating the equal protection challenge. Utilizing this test, we hold that the distinctions drawn by sections
733.302 and
733.304 bear a reasonable relationship to a legitimate state objective and therefore do not violate the equal protection clause....
...utory provision that a person incompetent to discharge the duties of a personal representative is not qualified to serve, guarantees the basic ability to perform the duties of a personal representative. Pincus further maintains that the exemption in section 733.304 for nonresident relatives of a decedent demonstrates that the statute is irrational....
...Furthermore, we find that it is not unreasonable for an exception to be created for nonresident relatives because, more than likely, the nonresident relative will also be a beneficiary of the decedent's estate. Finding no violation of the equal protection clause, we proceed to Pincus's contention that sections
733.302 and
733.304 violate the due process clause of the fourteenth amendment because they create an irrebuttable presumption that otherwise competent persons are not qualified to serve as personal representatives because of their nonresidency....
...me as the compelling interest test in the analysis of equal protection claims. Here, no fundamental rights are impinged, and therefore measured against the reasonableness test enunciated in Weinberger v. Salfi , we conclude that sections
733.302 and
733.304 are *49 constitutional. As we have previously explained, these statutes represent a rational means of accomplishing a legitimate state goal. Furthermore, we hold that sections
733.302 and
733.304 do not violate article IV, section 2, Constitution of the United States, which provides: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Pincus misapprehends the distinctions...
...As has already been noted, the Supreme Court of the United States has acknowledged the state's province in regulating the manner of testamentary dispositions. Pincus has no fundamental right to serve as a personal representative in Florida. Accordingly, having concluded that sections
733.302 and
733.304 are constitutional, we affirm the trial court's order denying Pincus's petition for appointment as a co-personal representative of the estate of Leo Greenberg. It is so ordered. BOYD, OVERTON and McDONALD, JJ., concur. ENGLAND, J., dissents with an opinion, with which SUNDBERG, C.J., and ADKINS, J., concur. ENGLAND, Justice, dissenting. By enacting sections
733.302 and
733.304, Florida Statutes (1977), the Florida Legislature has chosen to forbid certain nonresidents from acting as personal representatives for Florida estates....
...ild of the decedent and [ sic ] adoptive parent or is related by lineal consanguinity to the decedent or is a spouse or a brother, sister, uncle, aunt, nephew or niece of the decedent. [6] That provision was changed as to form in 1974 to what is now section 733.304....
...In 1979, the legislature amended section
733.302 to eliminate the requirement of United States citizenship. Chapter 79-343, Laws of Florida (1979). The amendment deleted only the language, "is a citizen of the United States and," but left the remainder of the statute unchanged. [2] Section
733.304 provides: A person who is not domiciled in the state cannot qualify as personal representative unless the person is: (1) A legally adopted child or adoptive parent of the decedent; (2) Related by lineal consanguinity to the decedent;...
CopyCited 12 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 487, 2011 Fla. LEXIS 2048, 2011 WL 3847252
...n challenging Davis's qualifications to serve as a nonresident personal representative on August 6, 2008. In that motion, Hill contended generally that Davis was unqualified to serve as a nonresident personal representative under the requirements in section 733.304(3), Florida Statutes (2007). Section 733.304(3) sets forth certain qualifications for nonresident personal representatives and provides in pertinent part: 733.304 Nonresidents. A person who is not domiciled in the state cannot qualify as personal representative unless the person is: . . . . (3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity[ [4] ] to any such person. . . . § 733.304(3), Fla....
...leging that decedent's husband, John Davis (the father of respondent Davis), was not decedent's spouse at the time of her death because he had predeceased her, and therefore respondent was not a lineal descendent of decedent's spouse for purposes of section 733.304....
...entative who was never eligible to serve. She argued below that because the decedent's spouse had predeceased her, the probate court erred in finding that Davis was "a person related by lineal consanguinity to" the decedent's spouse, as set forth in section 733.304(3)....
...ws: The legislature has enacted separate and distinct statutes dealing with the commencement of administration, and with the qualifications required of a personal representative. There is no time limit specified by the qualifications statutes. See §§
733.304 [the nonresident qualification statute],
733.3101, Fla....
...the qualifications of the personal representative" within three months of the service of the notice of administration or such an objection is "forever barred." A claim that a nonresident is not qualified to serve as a personal representative pursuant to section
733.304 is an objection to "the qualifications of the personal representative" and should be subject to the clear and unambiguous *577 provisions of section
733.212(3). . . . Contrary to the Third District's decision in Angelus, we find nothing in Florida Probate Rule 5.310 or sections
733.304 and
733.3101, Florida Statutes, which would preclude the application of the three-month statute of limitations period contained in section
733.212(3) to appellant's claim that appellee was not qualified to serve as a nonresident personal representative pursuant to section
733.304 where the factual basis for the claim was known to appellant and could have been raised within the three-month period....
...2(3) an exception not included there by the Legislature. We have long held that courts are not at liberty to extend, modify, or limit the express and unambiguous terms of a statute. See, e.g., Holly,
450 So.2d at 219. The Angelus court characterized section
733.304, the nonresident personal representative statute, as a qualification statute standing separate and apart from section
733.212(3), which provides for objections to the qualifications of a personal representative within the three-month time limit set forth there. Section
733.304 does enunciate the requirements for a nonresident personal representative, and it is silent as to any deadline for objecting to such person's qualifications....
...As the First District concluded, a claim that a nonresident is not qualified to serve is an objection to the qualifications of a personal representative, a matter expressly addressed in section
733.212(3). This conclusion is buttressed by the fact that both section
733.304, regarding nonresident personal representatives, and section
733.212, which governs the filing of objections, are contained within the Florida Probate Code (chapters 731-735, Florida Statutes)....
...rements that it has set forth"). Because section
733.212(3) states in a comprehensive fashion when an objection *578 to the qualifications of a personal representative must be filed, it was unnecessary for the Legislature to state a time deadline in section
733.304 for objecting specifically to the qualifications of a nonresident personal representative....
...t `must object to . . . the qualifications of the personal representative' within three months of the service of the notice of administration," and that "[a] claim that a nonresident is not qualified to serve as a personal representative pursuant to section
733.304 is an objection to `the qualifications of the personal representative' and should be subject to the clear and unambiguous provisions of section
733.212(3)." Hill,
31 So.3d at 923....
CopyCited 4 times | Published | District Court, M.D. Florida | 1979 U.S. Dist. LEXIS 15301
...Smith and Robert Lee Hoskins III, New York City, of counsel), for plaintiffs. Thomas A. Beenck, Asst. Atty. Gen., Dept. of Legal Affairs Civil Div., Tallahassee, Fla., for defendant. MEMORANDUM OPINION KRENTZMAN, District Judge. This case considers the constitutionality vel non, of Florida Statutes
733.302 and
733.304 [1] which disqualify nonresidents from serving as personal representatives of decedents to whom they were not related....
...The will was admitted to probate and Mrs. Fain named as personal representative, but by order entered March 19, 1977, Judge Hall found that Mr. Malkin was "not entitled to appointment as personal representative by reason that he is not qualified to serve under Florida Statute 733.304." The order in the state court was not appealed and plaintiffs filed in this Court under 42 U.S.C....
...onresidency (or other reasons) prevented his performance of the duties of that position, this would constitute grounds for removal, under Fla.Stat. §
733.504(2). [6] The logic of the state's attempt to justify the statutes fails upon consideration. §
733.304 exempts certain relatives and in-laws from the prohibition against serving even though they are nonresidents, thus recognizing that nonresidence is not an absolute practical bar to service....
...qualified to act as personal representative in Florida. A person who has been convicted of a felony or who, from sickness, intemperance, or want of understanding, is incompetent to discharge the duties of a personal representative is not qualified. 733.304 Nonresidents....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1991 Fla. App. LEXIS 2172, 1991 WL 32077
...Appellant, a nonresident, is the nephew of the deceased's first and second wives (both of whom predeceased him), and was named as personal representative in decedent's will. Section
733.302, Florida Statutes (1989), generally provides that personal representatives of Florida estates must be Florida residents. Section
733.304 provides certain exceptions to this residency requirement: Nonresidents....
...827, 115 S.W.2d 333 (1938); Meglemry v. Meglemry, 222 Ala. 229,
131 So. 906, 908 (1931). We believe the word should also be given that meaning here. We agree with appellant that the rationale behind the rather expansive statutory scheme of exceptions set out in section
733.304 is difficult to comprehend....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2004 WL 305793
...Angelus, who is a resident of New Zealand, filed a motion to strike the letters of administration and a petition for Pass's removal approximately fifteen months later. Angelus, the decedent's only child and one of the residuary legatees, claimed Pass was legally prohibited from serving as personal representative under Section 733.304, Florida Statutes (2003). Section 733.304 provides that a nonresident cannot qualify as personal representative unless the nonresident is a "spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity." § 733.304(3), Fla....
...epayment of the administrative expenses paid to Pass' counsel. At the hearing on the motions, Pass admitted he was the blood nephew of the decedent's former husband, and not of the decedent. However, he claimed he did not know of the requirements of Section
733.304, and that the removal petition should be dismissed because it had not been filed within the three-month time period required by Section
733.212, Florida Statutes (2003)....
...While we agree with the trial court's findings that Pass's services as personal representative did not harm the estate, we disagree with the conclusion that Section
733.212 can be applied to allow a legally unqualified personal representative to escape the requirements of Section
733.304 *573 and Florida Probate Rule 5.310....
...The personal representative's notice shall state that any interested person may petition to remove the personal representative." See Fla. Prob. R. 5.310 (emphasis added). The trial court erred in denying the motion to strike and petition for removal because Pass was never qualified to serve under Section 733.304....
...Pass is expressly prohibited from serving as personal representative because Pass is a nonresident nephew-in-law. See In re Estate of Angeleri,
575 So.2d 794 (Fla. 4th DCA 1991)(nephew is related by collateral consanguinity not linear consanguinity); In re Chadwick's Estate,
309 So.2d 587 (Fla. 2d DCA 1975). Thus under Section
733.304 and Rule 5.310, Angelus, as an interested party, properly petitioned to remove Pass as personal representative....
...me. The legislature has enacted separate and distinct statutes dealing with the commencement of administration, and with the qualifications required of a personal representative. There is no time limit specified by the qualifications statutes. See §§
733.304,
733.3101, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 4179, 2010 WL 1347314
...In this probate appeal, appellant seeks review of the trial court's order denying her motions to disqualify appellee as the personal representative of the decedent's estate. Appellant asserts that the trial court erred in concluding that appellee was qualified to serve as a nonresident personal representative pursuant to section 733.304(3), Florida Statutes (2007)....
...Appellee published the notice of administration and served a copy on appellant who was the decedent's mother. Appellant then filed two motions to have appellee removed as personal representative on the ground he was not qualified to serve as a nonresident personal representative pursuant to section 733.304(3), Florida Statutes (2007), because appellee's father had predeceased the decedent and was not the decedent's spouse at the time of her death and, therefore, appellee was not a lineal descendent of a spouse of the decedent....
...Appellee responded by moving to strike appellant's motions as untimely because they were not filed within three months after service of the notice of administration as required by section
733.212(3), Florida Statutes (2007). He also asserted that he was qualified to serve as personal representative because section
733.304(3) did not limit service by nonresidents to lineal descendants of a surviving spouse. The trial court denied appellant's motions to disqualify upon concluding that appellee qualified as a nonresident personal representative pursuant to section
733.304(3)....
...3d DCA 2004), which held that the three-month statute of limitations found in section
733.212(3) did not apply to bar a petition to remove the nonresident nephew-in-law of the decedent who misrepresented himself as the decedent's nephew and was not qualified to serve as personal representative under section
733.304....
...me. The legislature has enacted separate and distinct statutes dealing with the commencement of administration, and with the qualifications required of a personal representative. There is no time limit specified by the qualifications statutes. See §§
733.304,
733.3101, Fla....
...the qualifications of the personal representative" within three months of the service of the notice of administration or such an objection is "forever barred." A claim that a nonresident is not qualified to serve as a personal representative pursuant to section
733.304 is an objection to "the qualifications of the personal representative" and should be subject to the clear and unambiguous provisions of section
733.212(3). Although section
733.212(3) and section
733.304 are found in *924 separate parts of the Florida Probate Code, statutes which relate to the same or closely related subjects should be construed together. See Alachua County v. Powers,
351 So.2d 32, 40 (Fla.1977); Smith v. Crawford,
645 So.2d 513, 522 (Fla. 1st DCA 1994). Contrary to the Third District's decision in Angelus, we find nothing in Florida Probate Rule 5.310 or sections
733.304 and
733.3101, Florida Statutes, which would preclude the application of the three-month statute of limitations period contained in section
733.212(3) to appellant's claim that appellee was not qualified to serve as a nonresident personal representative pursuant to section
733.304 where the factual basis for the claim was known to appellant and could have been raised within the three-month period....
...e trial court's denial of the motions on that basis. We also certify conflict with Angelus. In light of this disposition, it is unnecessary for us to decide whether appellee was qualified to serve as a nonresident personal representative pursuant to section 733.304(3)....
CopyCited 1 times | Published | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 505, 2007 Fla. LEXIS 1234, 2007 WL 2002458
...§
731.301, Fla. Stat. Notice. §
733.202, Fla. Stat. Petition. §
733.301, Fla. Stat. Preference in appointment of personal representative. §
733.302, Fla. Stat. Who may be appointed personal representative. §
733.303, Fla. Stat. Persons not qualified. §
733.304, Fla....
CopyCited 1 times | Published | District Court, S.D. Florida
...Gandarilla because they were not formally married at the time of Mr. Gandarilla's death, but had a common-law union. Under Florida law, the only ground upon which Ms. Espejo could serve as the representative of Mr. Gandarilla is as his spouse. See Fla. Stat. § 733.304 ....
CopyPublished | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 636, 1992 Fla. LEXIS 1622, 1992 WL 249483
...Citation form changes in committee notes. Statutory References §
731.301, Fla.Stat. Notice; method and time; proof.
733.202, Fla.Stat. Petition. §
733.302, Fla.Stat. Who may be appointed personal representative. §
733.303, Fla.Stat. Persons not qualified. §
733.304, Fla.Stat....
CopyPublished | Supreme Court of Florida
...The oath for an
individual shallmust substantially comply with the following form:
[CAPTION]
OATH OF PERSONAL REPRESENTATIVE
STATE OF
COUNTY OF
I, , (Aaffiant), state under oath that:
1. I am qualified within the provisions of sections
733.302,
733.303, and
733.304, Florida Statutes, to serve as personal
representative of the estate of , deceased....
...oath requirements for corporate and individual personal
representatives. Committee notes revised.
Statutory References
§
733.302, Fla. Stat. Who may be appointed personal
representative.
§
733.303, Fla. Stat. Persons not qualified.
§
733.304, Fla....
CopyPublished | Supreme Court of Florida
...(34) that the person is 18 years of age or older; and
-7-
(45) whether the person is a resident of Florida and, if
not a resident, a statement of the person’s relationship to the
decedent in accordance with section 733.304, Florida Statutes.
Committee Notes
Rule History
1977 Revision - 2020 Revision [No Change]
2021 Revision: Subdivision (k) amended to require a statement
as to whether the personal representa...
...Probate.
§
733.202, Fla. Stat. Petition.
§
733.301, Fla. Stat. Preference in appointment of personal
representative.
§
733.302, Fla. Stat. Who may be appointed personal
representative.
§
733.303, Fla. Stat. Persons not qualified.
§
733.304, Fla....
...The oath shall
substantially comply with the following form:
[CAPTION]
OATH OF PERSONAL REPRESENTATIVE
STATE OF
COUNTY OF
I, , (Affiant), state under oath that:
1. I am qualified within the provisions of sections
733.302,
733.303, and
733.304, Florida Statutes, to serve as personal
representative of the estate of , deceased....
...ed adult and to revise
notary block for compliance with revised section
117.05, Florida
Statutes.
Statutory References
733.302, Fla. Stat. Who may be appointed personal
representative
733.303, Fla. Stat. Persons not qualified
733.304, Fla....
CopyPublished | Supreme Court of Florida
...Additionally, the rule is amended to add a new subdivision (k) to
require a statement that the personal representative is qualified to serve under the
laws of Florida as a business entity under section
733.305, Florida Statutes, or as
an individual under sections
733.303 and
733.304, Florida Statutes.
Rule 5.275 (Burden of Proof in Will Contests) is amended to correspond to
legislative changes in section
733.107, Florida Statutes....
...duties of a personal representative;
(3) that the person is 18 years of age or older; and
(4) whether the person is a resident of Florida and, if not a resident,
a statement of the person’s relationship to the decedent in accordance with section
733.304, Florida Statutes.
Committee Notes
Rule History
- 12 -
1977 Revision – 2014 Revision [No Change]
2019 Revision: Subd...
...appointment of a personal representative under section
733.301, Florida Statutes.
Subdivision (k) adopted to require a statement of the specific facts that show the
petitioner’s qualifications to serve as personal representative under sections
733.303 and
733.304, Florida Statutes.
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.240....
...The oath shall substantially
comply with the following form:
[CAPTION]
OATH OF PERSONAL REPRESENTATIVE
STATE OF
COUNTY OF
I, , (Affiant), state under oath that:
1. I am qualified within the provisions of sections
733.302,
733.303, and
733.304,
Florida Statutes, to serve as personal representative of the estate of ,
deceased....
...The oath is
expanded to address the qualifications and continuing duties of the personal
representative.
Statutory References
733.302, Fla. Stat. Who may be appointed personal representative
733.303, Fla. Stat. Persons not qualified
733.304, Fla....
CopyPublished | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 423, 2002 Fla. LEXIS 873, 2002 WL 825699
...Committee notes revised. Statutory References §
731.301, Fla. Stat. Notice; — method: and time;--proof §
733.202, Fla. Stat. Petition. §
733.302, Fla. Stat. Who may be appointed personal representative. §
733.303, Fla. Stat. Persons not qualified. §
733.304, Fla....
CopyPublished | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 495, 2003 Fla. LEXIS 1063, 2003 WL 21402500
...§
731.301, Fla. Stat. Notice. §
733.202, Fla. Stat. Petition. §
733.301, Fla. Stat. Preference in appointment of personal representative. §
733.302, Fla. Stat. Who may be appointed personal representative. §
733.303, Fla. Stat. Persons not qualified. §
733.304, Fla....
CopyPublished | Supreme Court of Florida
...Probate.
§
733.202, Fla. Stat. Petition.
§
733.301, Fla. Stat. Preference in appointment of personal representative.
§
733.302, Fla. Stat. Who may be appointed personal representative.
§
733.303, Fla. Stat. Persons not qualified.
§
733.304, Fla....
CopyPublished | Supreme Court of Florida
...Additionally, the rule is amended to add a new subdivision (k) to
require a statement that the personal representative is qualified to serve under the
laws of Florida as a business entity under section
733.305, Florida Statutes, or as
an individual under sections
733.303 and
733.304, Florida Statutes.
-4-
Rule 5.275 (Burden of Proof in Will Contests) is amended to correspond to
legislative changes in section
733.107, Florida Statutes....
...duties of a personal representative;
(3) that the person is 18 years of age or older; and
(4) whether the person is a resident of Florida and, if not a resident,
a statement of the person’s relationship to the decedent in accordance with section
733.304, Florida Statutes.
Committee Notes
Rule History
- 13 -
1977 Revision – 2014 Revision [No Change]
2019 Revision: Subd...
...appointment of a personal representative under section
733.301, Florida Statutes.
Subdivision (k) adopted to require a statement of the specific facts that show the
petitioner’s qualifications to serve as personal representative under sections
733.303 and
733.304, Florida Statutes.
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.240....
...The oath shall substantially
comply with the following form:
[CAPTION]
OATH OF PERSONAL REPRESENTATIVE
STATE OF
COUNTY OF
I, , (Affiant), state under oath that:
1. I am qualified within the provisions of sections
733.302,
733.303, and
733.304,
Florida Statutes, to serve as personal representative of the estate of ,
deceased....
...The oath is
expanded to address the qualifications and continuing duties of the personal
representative.
Statutory References
733.302, Fla. Stat. Who may be appointed personal representative
733.303, Fla. Stat. Persons not qualified
733.304, Fla....
CopyPublished | Supreme Court of Florida
...The oath for an
individual shallmust substantially comply with the following form:
[CAPTION]
OATH OF PERSONAL REPRESENTATIVE
STATE OF
COUNTY OF
I, , (Aaffiant), state under oath that:
1. I am qualified within the provisions of sections
733.302,
733.303, and
733.304, Florida Statutes, to serve as personal
representative of the estate of , deceased....
...oath requirements for corporate and individual personal
representatives. Committee notes revised.
Statutory References
§
733.302, Fla. Stat. Who may be appointed personal
representative.
§
733.303, Fla. Stat. Persons not qualified.
§
733.304, Fla....
