Posted By Larry Tolchinsky on May 27, 2015
Florida probate law protects both the personal property and real estate holdings of anyone who passes away in the State of Florida by immediately creating a legal “estate.” The estate acts as legal owner of all that property immediately upon the individual’s passing, and until another legal action (such as a probate judge’s ruling or a will’s disposition) transfers ownership to an heir or beneficiary.
Since the estate isn’t a real person, Florida law requires that someone represent the estate and they are known as the estate’s “personal representative.” A person who agrees to take on the role of personal representative of an estate, also known as an executor (executrix) or administrator (administratrix), will have their actions and conduct monitored by the courts.
Personal representatives of Florida estates are held to the highest standards of conduct as a fiduciary to the estate’s heirs and beneficiaries. If they fail to do their duty, then they can be found guilty of breaching that fiduciary duty and held responsible for the damages that have resulted from that breach.
Liability for a Florida Personal Representative
Usually, a Florida personal representative is a trusted and beloved relative of the person who has passed away; parents, for example, often name one of their children as their estate’s personal representative. Sometimes, uncles or aunts are chosen to take on the job. It’s a decision made by the decedent prior to their death, where their choice is reflected in their Last Will and Testament. Often, they will name their first choice and also provide for a second or third alternative, if that first choice is unable or unwilling to become the estate’s representative.
In complicated estates, it is not uncommon for banks or trust companies to be named as personal representative; this is particularly true of estates with great wealth or where property is held across state lines or in foreign countries.
The Florida Probate Code requires that, in most situations, a lawyer be hired by the personal representative to help them administer the estate, with the lawyer being paid from estate funds for advice given to the estate’s personal representative. Florida Statute 733.6171. Lots of personal representatives hire lawyers to help them.
However, it’s not required. There are times when personal representatives go it alone. These are situations where mistakes get made, and the personal representative may be guilty of negligence regarding disposition of the estate. Occasionally, there will also be times when the personal representative intentionally does bad things – like taking assets from the estate.
When a Florida personal representative fails in some way, they can be liable for their actions to the estate’s beneficiaries.
Holding a Florida Personal Representative Liable
When a personal representative has failed in their duties, an action must be undertaken in the probate court to challenge them and right the wrongs. These claims may be asserted at various times during the pendency of the estate and by more than one person.
Who Asserts the Claim Against the Personal Representative
A personal representative is liable under Florida law to interested persons for damage or loss resulting from bad faith, self-dealing, conﬂicts of interest, and breach of ﬁduciary duty. See, Florida Statute 733.609(l); Kaplan v. Kaplan. This means that there are a number of parties that may file claims against the personal representative of an estate.
There are times, for example, when one or more of the estate’s beneficiaries may file a request with the probate judge to have the representative ousted or removed. These cases will seek to remove the individual from the job as well as asking for damages for any harm done to the estate.
That’s if the beneficiaries are aware of things. It may be a successor or replacement representative who discovers the problem.
2. Successor Personal Representative
There is no rule that one person must remain as the sole personal representative of an estate, and particularly in long probates, there may be a succession in who is doing the job. In these cases, if something amiss is discovered, it is that new personal representative’s legal duty to file a claim in probate court against his or her predecessor on behalf of the estate itself.
Failure for the successor personal representative to file the claim regarding the questionable acts of their predecessor would be a breach of their fiduciary duty to the estate.
3. Creditors and Other Interested Parties
Finally, creditors or others interested in the assets of the estate may file a challenge to the actions of the personal representative.
Lawsuits Against the Personal Representative
Claims for damages can be based upon alleged negligence by the personal representative, where the harm has resulted from mistakes or incompetence on their part, or upon intentional bad acts done for personal gain. This is usually referred to as “self-dealing.”
Examples of “self-dealing” include letting the representative’s teenager drive the decedent’s car or letting a friend live or vacation in the decedent’s beachfront condo. Mistakes by a personal representative can be things like paying a creditor off whose debt was legally extinguished with the death of the debtor.
Moreover, both the personal representative and the attorney or law firm advising them can be sued for damages involving wrongdoing against the estate. See Bookman v. Davidson.
Personal representatives (and their legal counsel) may be held liable for “ … taxable costs as in chancery actions, including attorney’s fees.” Florida Statute 733.609(l).
If found liable, claims may be paid out of the personal representative’s share of the estate (if they are also a beneficiary) or out of their own assets.
However, these cases are not easy to prove nor are they easy to win.
Defenses of the Personal Representative
Florida probate judges will look hard at claims made against a personal representative by beneficiaries. Probate matters often involve high emotions among family members and disputes between siblings or children of the decedent will be assumed to have an emotional component. Claims against personal representatives must be filled with authenticated, admissible evidence that support the claims of wrongdoing.
Moreover, the decedent may have a say here. In many Florida wills, provisions include language that specifically states that any challenges made after a certain point in time are too late, and the bad acts will be forgiven under the terms of the will itself.