The Short Answer

In Florida, when there is no will, the court does not automatically appoint the “oldest child” or follow a strict birth-order rule. If there is no surviving spouse (or the spouse does not serve), priority generally goes to the person chosen by a majority in interest of the heirs—often meaning the children collectively choose who will serve—or, if they cannot agree, the court may appoint the closest heir in degree (typically a child) and select the one it finds best qualified.

What Florida Law Says

Florida uses the term “personal representative” (similar to “executor” or “administrator”) for the person the probate court appoints to manage the estate. In an intestate estate (no will), the law sets a priority list for who has the first right to be appointed, and it also gives the court discretion if multiple qualified people apply or if there is conflict.

The Statute

The primary law governing this issue is Fla. Stat. § 733.301.

This statute establishes that, in an intestate estate, the order of preference is: (1) the surviving spouse, then (2) the person selected by a majority in interest of the heirs, and then (3) the heir nearest in degree (with the court able to choose the best qualified if more than one applies).

Separately, Florida’s intestate succession rules generally provide that, if there is no surviving spouse entitled to the whole estate, the estate (or the remaining portion) passes to the decedent’s descendants (which includes children). See Fla. Stat. § 732.103.

If you want more background on disputes over who should serve, you may find this helpful: disputes over appointment of a personal representative in Florida.

Why You Should Speak with an Attorney

While the statute provides the general priority order, applying it to real families is rarely simple. Legal outcomes often depend on:

• Competing petitions and family conflict: If multiple children (or other heirs) file to be appointed, the court may need to decide who is “best qualified,” and disagreements can quickly become expensive and delay access to estate assets.
• Burden of proof and eligibility issues: Whether someone is legally qualified to serve can matter (for example, residency-related limits can apply to non-Florida domiciliaries). See Fla. Stat. § 733.304.
• Exceptions and special situations: Minor children, blended families, and disputes about who counts as an “heir” (or what assets are actually probate assets) can change both who has priority and what the administrator must do.

Because the personal representative has fiduciary duties and the appointment can be contested, getting legal advice early can prevent delays, reduce conflict, and protect you from personal liability.

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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.