Are you Certain you want your Spouse to Administer your Estate?
A recent case before the Florida Court of Appeal demonstrates another reason you need an estate plan. In your Last Will and Testament, your Will nominates a person to be in charge of the probate proceeding known as a “personal representative”. If you were to pass without a will, the Court will appoint an administrator to be in charge of the process. This can lead to an unintended family member becoming the administrator.
How does an Administrator get appointed? In Nevada, NRS 139.040 provides for an order of priority to appointment as administrator as follows: surviving spouse, children, parent, sibling, grandchildren or any other of the kindred entitled to share in the distribution of the estate. A petition is filed with the Court requesting the person be appointed as administrator. Assuming no objections are made, the petitioner will be appointed and then may proceed upon the issuance of Letters of Administration.
Is the Person Qualified to Serve? Although someone may have a priority of appointment, they must be qualified to serve. NRS 139.010 provides that no person is entitled to Letters of Administration if the person is under the age of majority (18) or has been convicted of a felony (unless the court determines the conviction should not disqualify the person). However, the court may also refuse to appoint someone as an administrator if, upon proof, it finds he or she should be disqualified “by reason of conflict of interest, drunkenness, improvidence, lack of integrity or understanding or other compelling reason”.
Another often overlooked requirement is that the administrator must reside in the State of Nevada or associate a co-administrator who resides in this State.
Why is the nomination of a personal representative important? The Florida Probate Code has a similar statute which provides for an order of preference for the appointment of an administrator. In Kavanaugh v. Thomas (2024 WL 3381563) (Fl.App. July 12, 2024) the Court of Appeal found that it was an error for the lower court to appoint someone other than the surviving spouse (the statutorily preferred person) in the absence of any evidence which reflected the wife was disqualified or otherwise unfit to serve. The absence of a Will which nominates a personal representative can lead to a variety of problems. If this Florida couple had been separated for years, would the husband have wanted the spouse to administer his estate? The nomination in a Last Will and Testament takes priority over the order of appointment of an administrator and would have easily avoided this problem. A more common issue is when there is no surviving spouse and now the children become embroiled over who is the most appropriate person to serve as administrator (particularly when there are children from different marriages).
The attorney at Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
