Posted By Larry Tolchinsky on July 8, 2014
When a loved one dies in Florida, the law immediately creates an “estate” to hold that person’s real estate and personal property until the assets can be legally determined, which are then transferred to the person who inherits it. An executor (in Florida, the person appointed by the Probate Court is known as personal representative or “P.R.”) is appointed to oversee this process – the man or woman who acts as personal representative of the estate is held to the highest standards as a fiduciary and this person is responsible to to the estate’s heirs, creditors and beneficiaries.
Normally, the personal representative is named in the decedent’s Last Will and Testament. Often times, the person named as the personal representative isn’t accustomed to dealing with legal matters. For that reason, Florida law requires a personal representative to be represented by an attorney to assist them in their duties. Which is a good thing. (The Florida Probate Code allows the lawyer to be paid from estate funds for advice given to the estate’s personal representative.)
However, despite having legal counsel, there are times when things go wrong and where a personal representative doesn’t stay the course. Sometimes the beneficiaries seek to have the estate’s representative ousted through court proceedings; other times, the P.R. quits and another personal representative takes over.
There can be all sorts of reasons for a change of personal representatives of an estate. It is not necessarily a red flag of wrongdoing.
However, there are times when a new, or successor, personal representative does discover that bad things have happened during the course of the prior administration of the estate and when this happens, that replacement representative has a fiduciary duty to pursue claims and seek redress on behalf of the estate and its heirs.
Which brings us to the new case of Bookman v. Davidson, where the First District Court of Appeals has held that a successor personal representative who is filing suit for alleged impropriety in the administration of an estate can sue not only the prior estate representative but the attorney or law firm that represented him or her.
Bookman v. Davidson: Case of First Impression
Deborah Irby died and Dana Ford was named as her estate’s personal representative. Dana Ford hired a lawyer to help her with the job. Time passed and Ford quit. A man named Alan Bookman took over as the representative of the estate and began work on the task of settling the estate and getting all the property held by Irby to the rightful owner (and getting her debts paid, her taxes filed, etc.).
Alan Bookman discovered what he believed to be improprieties in the handling of the Deborah Irby Estate. He filed a formal lawsuit against both Dana Ford and her lawyer. Specifically, Bookman found that before he took the reins, assets of the estate had been transferred or disclaimed that could have been used to pay Irby’s debts.
He sued Ford for the return to the estate of the fees she had been paid to act as its personal representative and he sued the lawyer for a return of the $195,000 that had been paid in legal fees.
Bookman had no choice here. Under Florida law, an estate’s personal representative has the legal duty to act not only within “the best interests of the estate” but also in “the best interests of all interested parties, including creditors.” When Bookman found the assets had been transferred that could have been used to pay the estate’s creditors, he had no choice but to sue in order to return to the estate those assets held by the predecessor representative or her agents.
The lawyer objected to being sued for professional negligence, arguing that Florida law did not allow Bookman to sue him for malpractice regarding his work regarding the estate administration, only Ford could do so since it was Ford that hired him.
The Florida First District Court of Appeals ruled otherwise. Pursuant to Florida Probate Code, sections 733.601-733.620, as the successor personal representative, Mr. Bookman did have “standing” to sue the lawyer who had provided advice and counsel regarding administration of the Deborah Irby Estate even though a different person, Dana Ford, was the estate’s representative at the time.
[Read the full opinion: Bookman v. Davidson, — So.3d —- ,(Fla. 1st DCA May 05, 2014)]
The Point Here: Personal Representatives Answer to Beneficiaries and Creditors
The point to remember here: the fiduciary duty of a personal representative of an estate in Florida is important and it comes with potential personal liability. The powers, duties, and obligations of that personal representative are many, and they extend to the representative himself (or herself) as well as to beneficiaries, creditors, contractors, accountants, and attorneys. When one person replaces another in the role of personal representative of a Florida Estate, all the powers as well as the duties and obligations are passed like a baton to the successor.
It’s a position of the highest responsibility and its demands are many.
If you have a reason to doubt that an estate’s personal representative, past or present, is acting fairly or accurately in the administration of a Florida estate, then you need to consider your legal rights as a beneficiary or creditor to that estate.
Discuss your situation with a Florida probate lawyer if you have concerns, knowing that the personal representative not only has great power, but great legal responsibilities.