Removal of a Florida Personal Representative: Party Named in the Will vs The Party Appointed by The Court

Posted By on July 1, 2015

In the state of Florida, your last wishes as documented in your Last Will and Testament are given great respect and honor under Florida law. Both in Florida statutes passed by the Florida Legislature as well as Florida case law coming from court opinions, the decedent’s decisions and declarations are respected whenever possible. This is especially true for the person that you choose to act on your behalf in transferring your property to your beneficiaries after you’ve passed away.  Your choice of Personal Representative in Florida will, more often than not, be the person who ultimately gets appointed.

It gives comfort to many writing their wills and doing their estate planning here that the decision they make on who acts as their Personal Representative (in other states, sometimes called “executor” or “administrator”) will be protected by the courts when the time comes — especially if there are worries about family members not getting along, or if there’s a lot of property or creditors involved and administration of the estate will be a big job.

As one landmark Florida court opinion explains, “[t]he removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.” In re Murphy’s Estate, 336 So.2d 697, 699 (Fla. 4th DCA 1976).

Can The Personal Representative Be Someone Other Than The Person Named in Your Will

However, the personal representative appointed to carry out a Florida estate, even a sizable estate, is not always the one named in a Last Will and Testament.  There are times when a person dies without a will here in Florida, and there is no one named to serve in the job by the person who is passed away. Other times, the person named in the will does not meet the qualifications required to serve in a fiduciary capacity, such as convicted felons or persons under 18 years old.  There are also situations where the person died with a will or other estate planning, but none of these documents meet the legal requirements of will under Florida law.  A void will or invalid will is treated under Florida law just the same as if the person died without a will, or “intestate.”

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Under the Florida intestacy statute, there is an order of preference in appointment that guides who the probate court will appoint as Personal Representative, when there is no will.

What Law Controls The Removal of a Florida Personal Representative?

Under Florida law, there are certain situations where a personal representative can be fired from the job, or legally “removed” from the position. Under Florida Section 733.504, there are twelve (12) different bases for removing a personal representative from their post.

These legal bases for removal of a personal representative include things like having a conflict of interest with the estate, or making decisions about the estate’s assets that are so bad that they are considered wasteful or irresponsible.

Anyone who has an interest in the estate – which can be both someone who is suppose to inherit property as well as a creditor who is due payment – can file a formal adversary proceeding with the Florida probate court, asking that the personal representative be removed from the position.

Are Court Appointed Personal Representatives Treated the Same as The Party Named In the Will?

In situations where the probate court judge has decided who should act as personal representative of an estate, the protections given the person appointed to the job are not the same as those enjoyed by an executor. The protections for an executor exist because of respect for the person who has passed away.

As one Florida judge explains, “It must be remembered we are dealing here with an executor appointed by the decedent in his will, not an administrator appointed by the court. The removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered. ”  See, Estate of Murphy. 

Florida courts have long recognized that personal representatives make mistakes and sometimes intentionally do bad things. When the court has been responsible for giving that person the job of taking care of the estate, then the court will find it much easier to remove that person as administrator. There is no need here to honor the decedent’s wishes in these cases, because administrators have not been appointed as personal representatives by the deceased person.

If the probate judge gave the personal representative the job, then the judge may be much more willing to replace that person as personal representative than if he or she were serving as executor. In Florida, court-appointments are not treated the same as appointments made by the testator. Vaughn v. Batchelder, 633 So.2d 526, 528 (Fla. App.1994).

Florida Statute 733.504

However, all personal representatives will be allowed to stay in that position of control over the estate unless Florida Statute 733.504 (the removal statute) is met. This law does not distinguish between executors or administrators. It applies to all personal representatives.

The key here is meeting the burden or providing evidence that one of the bases of the Removal Statute exists, and then looking to the probate judge’s discretion.

The judge is giving wide berth in controlling who acts as a personal representative of a Florida estate. If an interested party can show that the person the judge placed into the job of personal representative should be removed based upon Florida Statute 733.504, then the judge is given great legal discretion in deciding what to do and his decision will be left unchanged by the reviewing courts unless some kind of rare abuse of that discretionary power is shown.

How to Remove an Administrator of a Florida Estate

A Florida probate lawyer can help interested parties seeking to remove an administrator as personal representative in a few legal steps. First, the removal request must be filed and the movants must provide evidence under Florida Section 733.504 that there is a legal basis to remove the person. Second, a hearing must be scheduled where evidence is presented and arguments are made.

If the court appointed the individual as personal representative, there is no consideration to be made of the decedent’s preferences here. The probate judge can consider the evidence with the arguments of counsel, and order the replacement of the personal representative with a new administrator or administratrix “… if he interferes with the proper administration of the estate, causes a waste of assets, or meets any of the conditions specified in the statute”. Pontrello v. Estate of Kepler, 528 So.2d 441 (Fla. 2d DCA 1988).

For more information, check out our probate litigation page.

Removing a Florida Personal Representative for Making Bad Decisions & Costing the Estate Money

Posted By on June 24, 2015

As we’ve already covered in our series on removal of Florida Personal Representatives, it doesn’t matter if the beneficiaries of a Florida probate estate don’t like the person who is appointed to oversee the estate’s administration. Under Florida law, the “personal representative”, the person or persons who are appointed by a probate Judge to fulfill the decedent’s final wishes, aren’t responsible for meeting the approval of the heirs, beneficiaries, creditors, or other interested parties of the estate.

Instead, under Florida probate rules, court precedent and Florida statute, the personal representative’s job is to complete the probate process by determining all of the estate creditors, paying all of the lawful and timely presented debts, and distributing the estate property to the beneficiaries.

In fact, Florida personal representatives have a fiduciary duty focused upon the effective administration of the estate (even though that duty inures to the benefit of the estate creditors and beneficiaries), but they don’t have a duty of meriting the approval of those who are owed money or who are inheriting from the estate. Removing a personal representative by unhappy and dissatisfied beneficiaries isn’t easy to accomplish and can only be done if one of the provisions of Florida Statute 733.504 is met.

Among the reasons listed for removing a personal representative (the “P.R.”) is when the P.R. is “wasting or maladministrating the estate.Florida Statute 733.504(5).

What do these terms mean — how does a Florida P.R. “waste” or “maladminister” an estate?

Is there a Presumption that the P.R. Acted Appropriately?

Before moving forward with any action against a personal representative, it’s important to know that courts will give the personal representative favor here; the judges will consider the decedent’s last wishes to be something honorable and to be respected, and the person that the decedent chose to administer their estate after their passing is a choice the courts will try to maintain, absent a legitimate reason to the contrary. As one Florida court explains, “The removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.In re Murphy’s Estate, 336 So.2d 697, 699 (Fla. 4th DCA 1976).

Moreover, the trial level judge in the Florida probate court will be given great respect by the reviewing courts in his or her decision to remove a personal representative or keep them in the job. Appeals courts will change the decision of a probate court judge only if there is clear evidence presented to them that the probate judge abused his or her discretion when their decision was made. If abuse by the probate judge cannot be shown, then the judge’s decision will stand.

Can You Remove a P.R. for Simply Making a Bad Decision That Costs the Estate Money?

Beneficiaries may be very upset to learn that the executor or administrator made a bad decision regarding estate assets and ended up costing the estate money. That is not enough to have them removed. If the personal representative makes a responsible and reasonable judgment call under the circumstances, then that’s enough to meet fiduciary duty requirements.

Consider the case of Gresham v. Strickland, 784 So.2d 578, 580 (Fla. 4th DCA 2001), where millions were lost to the estate and the removal action failed.

In Gresham, a Florida man died in a train accident in South Carolina. His daughter Jo Ann was appointed personal representative of his estate and she promptly hired a law firm to sue Amtrak (and others) in a wrongful death action on behalf of the estate. (In Florida, only the estate through the personal representative can file a wrongful death action.)

Negotiations began between Jo Ann’s lawyer and the defendants. There was an offer made where the defendants would sign an admission of liability if Jo Ann would sign a waiver of seeking punitive damages by the estate. Jo Ann’s lawyer wrote an attorney hired to represent five beneficiaries (the children of the decedent’s second marriage; he also had two kids from his first marriage) seeking their support for this deal. He explained that his plan was to file a wrongful death action in Florida and then to pursue a survivor’s action in South Carolina.

The five beneficiaries agreed through their lawyer, and Jo Ann’s attorney filed the wrongful death case in Florida and got a $2.8 million verdict for the estate and beneficiaries, each beneficiary recovering $400,000. See Nat’l R.R. Passenger Corp. (Amtrak) v. Ahmed, 653 So.2d 1055 (Fla. 4th DCA 1995).

Here’s when things went bad: that survivor action filed in South Carolina was not successful. The defendants got a summary judgment there based upon res judicata of the Florida action. When the five beneficiaries learned that another family who lost a loved one in that train crash got $6.1 million in compensatory damages and $50 million in punitive damages, they sued their lawyer. Jo Ann joined them as personal representative, and she sued her lawyers, too.

The beneficiaries failed here, too. The Florida court ruled that what they should have done was seek the removal of the personal representative if they didn’t like the idea of waiving the punitive damages claim. Their lawyer didn’t do anything wrong, this wasn’t malpractice on his part.

However, the court also warned that this removal action probably would not have been successful either, because:

“… it would be nothing but sheer speculation as to whether a trial court would agree or disagree to remove the personal representative for a litigation strategy decision made in consultation with her attorneys. Indeed, no case has been cited to us holding that disagreements over litigation are grounds for removal of a personal representative.”

Removal of Florida Executor is Hard to Achieve

As you can see, the removal of a Florida personal representative is a complicated and difficult endeavor. Thus, if you are an heir, beneficiary, creditor, or interested party to a Florida estate and you think that the removal of a Florida personal representative is warranted, then conferring with an experienced probate lawyer to determine your options and how best to proceed is a must.  Most lawyers who represent interested parties in estate administrations, like our office, will offer a free initial consultation.

For more information on litigation related to Florida personal representatives, check out our other articles that include:

Removal of Florida Personal Representative for Conflict of Interest with Estate

Posted By on June 17, 2015

A personal representative in Florida is the person who represents the estate of a deceased person and who is tasked with overseeing the transfer of the decedent’s property to beneficiaries.  The personal representative is also responsible for seeking out and notifying potential creditors of the estate that probate proceedings have commenced.

Personal representatives are sometimes nominated for the position prior to the decedent’s death, in their Last Will and Testament.  Becoming the personal representative of a Florida estate is a serious undertaking. One should not take on the role of personal representative without fully comprehending how stringently their actions will be monitored.

What might seem like an advantageous property sale, loan, or other transaction that benefits both sides, could be seen as self-dealing when brought to the attention of the careful eye of the local probate court.  Personal representatives of Florida estates can be removed from the position – and potentially surcharged for any damages incurred – if they are found to have a conflict of interest with the estate.

Personal representatives can be removed for conflicts of interest with the estate.

 

Florida Judges Respect the Decedent’s Choice in Personal Representative

Once someone agrees to act as personal representative in accordance with the wishes of the person who has passed away, the process moves forward under established procedures.  The personal representative is confined to act only according to these procedures, and must petition the court for any extraordinary authority required in carrying out the estate’s affairs. All creditors and/or beneficiaries may not agree with every decision the personal representative makes, or the speed at which he/she makes them, and it’s not uncommon for complaints to be voiced.

However, those complaints may not be enough to get the personal representative out of power. Even if every single beneficiary despises the personal representative, and they all agree he should be fired, the unanimous vote of all beneficiaries and creditors alone will not get a personal representative removed in Florida.  They must voluntarily resign, or be removed for cause.

Complaints About the Appointed Personal Representative: It’s Not Easy to Get Them Fired

In Florida, judges will make every effort to respect that choice designated in the person’s Will: there is a heavy burden of proof to be met by anyone who wishes to challenge and remove someone who is representing an estate and acting as personal representative is not easy to do.  As a general rule, probate court judges have no discretion on who is appointed personal representative of the estate, they must fill that position with the person designated for the job by the testator in the will.  In re Estate of Miller, 568 So.2d 487, 489 (Fla. 1st DCA 1990).

However, there is a Florida law in place that provides for the removal of a personal representative and if the requirements of this law can be met, then the challenge to the personal representative can succeed and that person terminated from the job.  This law, Florida Statute 733.504, provides 12 different legal bases for removing a personal representative.

Among these twelve bases for removal is Florida Statute 733.504 (9), which states:

“Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.”

Conflicting or Adverse Interests Against the Estate? You Better Have Strong Evidence

Anyone with a legal interest in the estate has standing to challenge the personal representative under this section of the removal statute. However, there will need to be sufficient admissible evidence to show more than the person has an interest in the estate that is adverse or conflicting with it. That alone isn’t enough to get the representative removed.

According to the language of Florida Statute 733.504(9), these interests must also have the potential to “… interfere with the administration of the estate as a whole.” The burden of proof therefore requires not only a showing of the interest at issue, but evidence of how this interest might clash with the job of administering the decedent’s estate.

Furthermore, if that potential interference is because the surviving spouse is the personal representative, then this basis for removal will not apply. Children, step-children, siblings, etc., cannot get a widow or widower removed as a personal representative here just because they have the right to a family allowance or elective share, etc., as part of their rights as a surviving spouse.

You must show two things to remove a personal representative here:

1. Evidence of the Adverse Interest

Proving the interest by admissible evidence placed in the record is extremely important in a removal action. Consider the case of Werner v. Estate of McCloskey, where a mother named her son to act as personal representative of her estate in her Last Will and Testament. When she died the probate judge did not follow her wishes, but instead placed her daughter in the job because the judge found that the son “… ha[d] a conflict of interest with the estate.”

The son appealed and the appellate court agreed with him. There was no evidence in the record of an adverse interest sufficient to keep him from taking on the job in accordance with his mother’s wishes. Upon review, the court found “… no competent substantial evidence” of any adverse interest in the record. Therefore, the son would serve in the role of personal representative because that jived with his dead mother’s wishes.

2. Evidence That the Adverse Interest Clashes With Estate Administration

Once an adverse interest is shown, the parties seeking removal of the personal representative must also show with admissible evidence that this interest will cause problems with the job of administering the estate. An example of where this was proven is the Florida case of Rand v. Giller, 489 So.2d 796, 798 (Fla. 3d DCA 1986).

Here, an outside attorney named Brian Giller helped the deceased, Mrs. Rosen, draft her Last Will and Testament. He was named in her will as co-personal representative with Joe McGowan, a family member and relative of the deceased. Both Giller and McGowan were lawyers. Giller’s law firm was also named as trustee of a trust established for the decedent’s sister.

When Mrs. Rosen died, her relative Joe McGowan started the probate proceedings. McGowan’s co-executor, Brian Giller sent a letter to him, asking that Giller’s law firm be hired as counsel for the estate. McGowan said no: he was willing to work at cost; furthermore, he and the other beneficiaries were in agreement that McGowan handle all the work required in representing the estate.

Giller countered by refusing to co-sign checks for estate expenses, something required as a co-personal representative. Letters started going back and forth between the two men with the dispute ending up in a Florida court of appeals.

There, the appellate court held that it was proper under Florida Statute 733.504(9) to remove Brian Giller as personal representative because in doing things like refusing to co-sign checks to pay estate expenses, which were not in dispute as being valid, he was interfering with the administration of the estate because of his conflict.

(Note that it didn’t matter that all the beneficiaries the personal representative out — it was only the evidence of Giller’s own actions and how they clashed with the efficient administration of Mrs. Rosen’s estate that got him removed under the statute).

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For more information check out our probate litigation page.

Removing a Florida Personal Representative Because They Are Incapacitated

Posted By on June 10, 2015

As we recently discussed, under Florida law, there are a dozen reasons for removing a personal representative (See Florida Statute 733.504). Included among this statutory list of causes for removal, is removing the personal representative because they have been “adjudicated to be incapacitated.”

What does adjudicated mean and how do you know if a personal representative is incapacitated? The answers to these questions are especially important if you, as an interested person to an estate, believe that the personal representative’s behavior is harming the estate.

 

Is the Named Personal Representative Protected?

Under current law, Judges seek to protect the decedent’s choice of personal representative. According to Florida case law, probate courts are guided by the notion that “[t]he removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.” In re Murphy’s Estate, 336 So.2d 697, 699 (Fla. 4th DCA 1976).

Notwithstanding this standard, the probate court judge does have the discretionary power to remove a personal representative.  The appellate court (should that judge’s decision be appealed) will respect the judge’s determination and only alter the judge’s ruling if there is a clear showing that the judge abused his or her discretion in making the decision to remove the personal representative.

Which means, judges can remove a personal representative but will only do so when they have strong evidence of the need to do so.

What Is Incapacitated?

An individual is considered incapacitated under Florida law if they “…lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.” Florida Statute 744.102(12).

It is not easy to prove someone is legally incapacitated in Florida. Strict procedures must be followed as outlined in Florida Statute 744.331, which includes the appointment, by a judge, of an examining committee who are directed to follow stringent reporting requirements.  The examining committee is directed to conduct a comprehensive examination of the alleged incapacitated person and prepare a report for the judge to review (the report must include several pieces of statutorily required information).  The examination must include, if indicated:

1. A physical examination;
2. A mental health examination; and
3. A functional assessment.

If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report submitted to the judge must explain the reasons for its omission.

What is Adjudication?

Even if all the heirs, beneficiaries, and creditors gathered together in a probate courtroom and pointed their fingers at the personal representative, and in one voice cried out to the probate court judge that the representative was incapacitated and should not serve, that would make no difference under Florida law. The personal representative can not be removed by unanimous vote.

Instead, incapacity must be determined in a judicial proceeding. A petition must be filed with the clerk and the personal representative must have the opportunity to defend him or herself in the proceeding. Florida Statute 744.3201 provides the steps that must be taken here, which include filing a petition before the court that contains very specific information that is sworn to be accurate:

The petition must be verified and must:
(a) State the name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person;
(b) State the name, age, county of residence, and present address of the alleged incapacitated person;
(c) Specify the primary language spoken by the alleged incapacitated person, if known;
(d) Allege that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
(e) State the name and address of the alleged incapacitated person’s attending or family physician, if known;
(f) State which rights enumerated in s. 744.3215 the alleged incapacitated person is incapable of exercising, to the best of petitioner’s knowledge. If the petitioner has insufficient experience to make such judgments, the petition must so state; and
(g) State the names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, specifying the dates of birth of any who are minors.
(3) A copy of any petition for appointment of guardian or emergency temporary guardian, if applicable, shall be filed with the petition to determine incapacity.

In other words, “adjudication” means full due process for the person who is alleged to be incapacitated and a complete judicial consideration of that allegation, with witnesses and testimony and argument, before a judicial decision is made. Borden v. Guardianship of Borden-Moore, 818 So.2d 604 (Fla. 5th DCA 2002).

An adjudication also results in the entry of a written judgment that states that the individual is legally incapacitated. This final judgment is then entered into the court record.

What Happens Once an Adjudication of Incapacity Has Been Made?

If there has been an adjudication of incapacity for the person who was appointed as personal representative of the estate, then the written final judgment entered in the adjudication proceeding is filed with the probate court creating an adversarial proceeding in the probate case.

At that point, the probate judge will conduct a hearing to remove the individual from his or her position and appoint a new, duly qualified personal representative, which is in the best interest of the estate.

To Learn About Other Adversarial Probate Proceedings, Please See Our Probate Litigation Page

 

12 Causes For Removal of a Florida Personal Representative

Posted By on June 3, 2015

In other states, the person(s) representing the probate estate is sometimes called an “executor” (“executrix,” for females) or “administrator” (“administratix”).  However, here in Florida, the person who represents the estate of a decedent and has the job of overseeing the transfer and transition of their property to heirs and beneficiaries, as well as paying creditors and taxes, is called the estate’s “personal representative” (and that goes for both males and females!). See, Florida Statute § 733.301.

Who Are The Powers of a Florida Personal Representative?

The role of personal representative is an official, legal title that conveys a significant amount of power upon the individual, bank or trust company appointed.  But, as we all know, with great power comes great responsibility.  A Florida personal representative can do important things like sign checks, make deposits, even sell land or jewelry or other items that belonged to the person who has passed away. However, a Florida personal representative must also perform certain rudimentary tasks like publishing notice to creditors and paying the decedent’s debts before distributing any property to the beneficiaries.

The personal representative proves their authority to do any of these things (and more) on behalf of the estate by presenting their Letters of Administration.  The “letters,” as it is sometimes called, is a formal document that has been approved by the local probate court and signed by the judge certifying that this individual, or bank or trust company, has the legal authority to act on behalf of the estate. Florida Statute 733.301.  Usually, any banks or parties to a real estate transaction will require a specially-stamped “certified copy” of the letters (the certified letters are usually only accepted if they are used within 60 days of the date of certification) before proceeding in dealing with the personal representative on any official estate business.

It is a powerful role to undertake, and one that should not be taken lightly, as we are about to find out.

 

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What if the Personal Representative Isn’t Doing Their Job?

Usually, estates in Florida are probated according to strict procedures prescribed by the Florida Probate Code, the Florida Probate Rules, as well as each court’s local rules and procedures.  While the court system may take longer than beneficiaries and creditors would like, most estates proceed smoothly, and are generally closed within 12 months of being opened (unless litigation or tax related issues force it to remain open longer).

The personal representative carries out their duties, ensuring that all legitimate creditors are satisfied and property is distributed according to the decedent’s wishes or Florida law.  Once that is complete, the personal representative asks the court to officially rule that their job is done and discharge them from the fiduciary position.  Once that is confirmed by the probate court, then they are released from further duties.

When someone does not do their job as a personal representative properly, things may not go as smoothly. Personal representatives can fail to do their work in all sorts of ways. However, if they are incompetent and making mistakes; if they are neglectful and things are not getting done; or if they are “self-dealing” and misusing the estate’s assets, they can be removed officially from the job and their representative’s letters revoked.

Causes for Removing a Personal Representative in Florida

There are 12 reasons listed in the Florida Probate Code for removing a personal representative from their job. Florida Statute 733.504.

Beneficiaries may move the court for removal as can creditors or other interested parties; as movants they must provide the probate judge with sufficient evidence of one of the following circumstances as stated in Florida Statute 733.504:

(1) Adjudication that the personal representative is incapacitated.
(2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.
(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
(5) Wasting or maladministration of the estate.
(6) Failure to give bond or security for any purpose.
(7) Conviction of a felony.
(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.
(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.
(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.
(12) The personal representative would not now be entitled to appointment.

How Do You Remove a Personal Representative of a Florida Estate?

If you or a loved one believe that a personal representative is failing in their role, then first you must determine that you have “standing” to challenge the individual. Only “interested persons” to the estate can do this; if you have no connection to the estate (heir, beneficiary, creditor, etc.), then you do not have standing to seek removal.

An “interested person” is “… any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Florida Statute § 731.201(23). If you’re not expecting to be affected by the outcome of the estate being probated, then you can’t challenge the personal representative no matter how suspicious you are about what he or she is doing.

If you have standing, and meet the definition of “interested person,” then you file a lawsuit with a document called a “Petition for Removal” in the probate court where the estate’s administration is being overseen. See Florida Statute 733.505.

This begins an official lawsuit under the umbrella of the estate proceedings called an “adversary proceeding,” before the probate court (typically, adversary proceedings are handled by the same probate court judge overseeing the estate administration). You must serve your petition on the personal representative, just like any other lawsuit, and the process of discovering facts (“discovery”) moves forward just as it does in any other lawsuit of a civil nature.  The Florida Rules of Civil Procedure apply, as closely as possible.  Documents are exchanged; depositions are taken.

Settlement negotiations can proceed, too: maybe the personal representative will agree to step down and an agreed order can be presented to the judge for consideration. It’s also possible that the removal lawsuit may end up in a full trial before a jury, especially if intentional wrongdoing has been alleged against the personal representative and large amounts of damages (sometimes including punitive damages) are in controversy.

Obviously, removal of a Florida personal representative is a complex legal undertaking. If you have reason to believe that the removal of a Florida personal representative of an estate in which you or a loved one are an interested party is warranted, then it may be wise to confer with an experienced probate lawyer to determine your options and how best to proceed.

For more information on Florida personal representatives, check out our posts that include:

 

Can Personal Representatives of Florida Estates Be Held Liable For The Damages They Cause?

Posted By 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.

1. Beneficiaries

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.

My Sibling And I Can Never Agree On Anything: How Can I Get My Family Member Removed As Personal Representative Of Mom’s or Dad’s Estate?

Posted By on May 20, 2015

When a mother or father does their estate planning and drafts their Last Will and Testament (along with Trusts, etc.), its understandable that when they think of the person they trust the most to deal with distributing their property after their passing, that mom or dad will consider their children first.

After all, who better to know and respect their parent’s wishes than a beloved son or daughter, right?

In South Florida, it’s very common to see grieving sons and daughters in probate court, taking on the responsibility of acting as personal representative of their deceased father’s estate or the estate of a mother who has recently passed. Often, these are responsible children from close-knit families who understand well the duties and requirements of this legal role as well as the emotional stresses everyone in the family is experiencing, and they handle the job with integrity and compassion.

When Brothers and Sisters Abuse Their Power as Personal Representative of Their Parent’s Estate

However, there are times when a sibling is appointed to oversee the administration of a Florida Estate who falls prey to the temptation to take advantage of their new legal role and the power that comes with it. These personal representatives do all sorts of unacceptable things, from minor faults like failing to deal with the beneficiaries, i.e., their brothers and sisters and other family members / beneficiaries, with respect and caring in a difficult time, to more serious actions.

Brothers or sisters appointed to act as personal representatives can also do very bad things, like taking advantage of their role for their own personal gain or acting in ways that mismanages the assets in their deceased parent’s estate.

If siblings have been appointed as joint personal representatives of the estate, then there’s an additional problem of failure to cooperate and work together in getting the job done. Failing to work with your brother or sister in making decisions, handling tasks, and completing the administrative duties of a personal representative can cripple the efficiency of the probate process as well as crippling family relationships in a time of grief.

When Brothers and Sister Cannot Agree Regarding Estate of Mother or Father

A brother or sister that refuses or fails to listen to their siblings or is unable to reach consensus on decisions regarding the estate may need to be removed from their role as personal representative or estate executor. This is a formal process to be undertaken before the probate court judge governed by Florida Probate Code chapter 733; however, it is not an easy thing to do.

Removing Them From the Job

Removal of a personal representative of your parent’s estate means that you must gather together facts as admissible evidence to prove to the court that there is an irreconcilable conflict between the two of you as co-representatives regarding the management of your parent’s estate. This can be done by providing facts showing things like:

  • Each sibling has taken action regarding the estate without consulting with their co-representative (or co-executor).
  • The two siblings don’t get along – there exists a “spirit of intense antagonism” between them (quoting Henderson v. Ewell, 149 So. 372, 111 Fla. 324 (1933)).
  • Impasses between the co-representatives are resulting in numerous hearings before the court in order to resolve the disputes.
  • One of the co-representatives has been misusing estate assets in some way, either for personal gain or to spite their sibling.
  • One of the co-representatives is failing to do a competent job (neglecting things, making mistakes, hampering others like the CPA from getting things done, etc.).

See,  Rand v. Giller, 489 So.2d 796, 798 (Fla. 3d DCA 1986).

Breach of Fiduciary Duty Claim

At times, there may be a claim of “breach of fiduciary duty” to be made here. Fiduciary duty is the highest duty recognized in Florida law; it exists “… where confidence is reposed by one party and a trust accepted by the other.”

In these situations, there will be evidence that the brother or sister has taken advantage of their role by “self-dealing” or they have been terrible at the job and are negligent. Fiduciary duty challenges to the personal representative are serious matters, and the harshest avenue to getting a sibling removed as estate representative.

High Burden to Justify Removing a Brother or Sister as Personal Representative

When a sister or brother goes before a Florida probate judge and asks that their sibling be removed from their appointed role as executor or personal representative, they need to be ready to withstand scrutiny by that judge. Why? Probate judges work very hard to respect and honor the last wishes of those who have died and are depending upon others, like the judge, to make sure that their decisions regarding the disposition of their property is respected. See Estate of Murphy, 336 So. 2d 697 (Fla. 4th DCA 1976).

Which means that the Probate judge will give great weight to the fact that the mother or father who appointed that challenged representative did so with the idea that they should handle their parent’s estate after the mother or father passed away. To alter the decision made by the parent, the challenge must be strong and solid on its facts and the judge must be persuaded that the estate and the beneficiaries are best served by disregarding the desired wishes and decisions of appointment made by the decedent. Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997).

Probate Trial Over Removal of the Personal Representative

Unless an agreement can be reached in settlement, these removal actions can result in a full trial held in a Florida probate courtroom. Brothers and sisters wanting to remove their brother or sister as personal representative or co-executor of their parent’s estate must be ready to put witnesses on the stand and provide documents as evidence to prove their case by a preponderance of the evidence.

Which means that anyone considering ousting their sibling from representing their parent’s estate needs to be prepared for litigation and should have an experienced Florida probate lawyer with trial experience at their side.

For more information about the probate process, see our web site resources page.

Challenging an Inheritance in Florida: Meeting the In Re Carpenter Factors in a Florida Will Contest

Posted By on May 12, 2015

Today, Florida Statute 733.107 has been passed to override part of the Florida Supreme Court’s decision back in 1971, when the famous (at least in legal circles) case came down: In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971).  The Florida Legislature can pass laws that block what the Highest Court in the State has ruled.

However, In Re Carpenter is still important to anyone seeking to contest a Last Will and Testament here in Florida. Much of Carpenter still applies today.

Carpenter and Undue Influence Challenges to Florida Wills

For one thing, the Carpenter case sets out the basic legal requirements here in Florida for what someone must do to prove there has been undue influence exerted over the decedent by an evildoer when the decedent created his or her will.

As established by the Florida Supreme Court, “undue influence” must be proven by evidence provided by the person challenging the will in specific ways. Never-mind that it may be hard to find facts and documents and witnesses to support what is suspected in these cases!

In Florida, the judge and jury will be legally required to presume there has been undue influence once there is evidence that:

1. The alleged evildoer had a “confidential relationship” with the decedent (that’s a specific kind of relationship with certain characteristics to be shown);
2. The alleged evildoer inherited a lot under the challenged will (in legalese, was a “substantial beneficiary”); and
3. The alleged evildoer was involved in getting the Last Will and Testament finalized.

Once these three things have been proven with authenticated, admissible evidence by the party challenging the will, then the law will find the challenged will to be unenforceable and the court will deem it “invalid.” In legal terms, the “burden of proof” shifts.

At that point, the prior will takes effect. If there was no prior will, Florida intestacy laws determine who gets what of the decedent’s property.

Background of In Re Carpenter: The Bad Sister

In the Carpenter case, the widow Carpenter made a will only 4 days before she died, leaving all her worldly goods to her daughter Mary. Mary’s three brothers were cut out of inheriting anything by this will; two of them, Ben and Bill, filed a will contest. They argued that their mother had been “unduly influenced” to make that will and exclude them (and their brother Sam).

A Florida judge in the local probate court made the initial determination. He found that the Widow Carpenter, who died at the age of 52 years, not only took care of her own business affairs until the time of her death, but that she had followed all the usual formalities of a Last Will and Testament: it was witnessed by two people, etc. The judge also found that the Widow had voiced she wished to leave her estate to her four children equally, and that she was most fond of her son Ben, who had helped her more than her other children in many ways, including financially.

As for Mary, the judge found that when Mary visited her mother shortly before her death, and realized she was seriously ill, she moved her mother into a local hospital. There, Mary had the phone removed from the hospital room and rushed her lawyer to the scene, where she told the attorney her mother’s wishes were that Mary get everything.

The lawyer drafted the document accordingly. He testified that alone in the room with the Widow Carpenter, he asked her on two separate occasions if she wished to disinherit her sons and leave her entire estate to Mary and it was only after he was sure this was her intent that he brought in the witnesses and finalized the will.

The Florida judge found that there was undue influence, pointing to the fact that no doctor was consulted about the Widow Carpenter’s ability to understand what was happening at the time the will was executed, as well as Mary keeping the new will secret from her brothers before it was executed; and there being no evidence to support the explanation given in the will for the disinheritance, i.e., that her “sons didn’t love her.”

The Carpenter Factors

Of course, Mary appealed the probate judge’s ruling. The Florida Supreme Court ruled that there was undue influence here, and gave guidance to both probate lawyers and probate judges on situations of undue influence in a will contest.

These have come to be known as the “Carpenter Factors” and they are:

a) presence of the beneficiary at the execution of the will;
b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
c) recommendation by the beneficiary of an attorney to draw the will;
d) knowledge of the contents of the will by the beneficiary prior to execution;
e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
f) securing of witnesses to the will by the beneficiary; and
g) safekeeping of the will by the beneficiary subsequent to execution.

Florida Statute and In Re Carpenter: Who Has the Evidence Burden

After the Carpenter case, the Florida Legislature amended Florida Statute 733.107 regarding the burden of proof in an undue influence will contest in Florida. The new law doesn’t gut what the Supreme Court found to be factors that show or establish undue influence in the making of a will (the Carpenter Factors). It changes who has what burden of bringing evidence to the court in a will contest based upon undue influence.

Under the statute, as a matter of public policy, the job of providing evidence of the claim cannot be shifted — once a will has been shown to be sufficient on its face as meeting the requirements of a Last Will and Testament under the Florida Probate Code, and a will contest is filed, there will be a legal presumption of undue influence unless the defender can prove otherwise:

1. The party asserting there has been undue influence must provide evidence that there is enough for a legal presumption of undue influence (as established in Carpenter);
2. If that burden of proof is met, then the person defending the challenged will as valid must show that there was NOT undue influence (by a preponderance of the evidence, roughly 51%).

From Florida Statute 733.107:

(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.

Challenging a Will in Florida

If you or a loved one believe that there may have been some questionable circumstances surrounding the drafting of a loved one’s will, then you need to get the advice and counsel of a Florida Probate Lawyer who can help you determine what has happened legally and what documents and testimony you will need to prove (and win) your case.

Undue influence challenges can be complicated and emotional fights, and it can be difficult to find support that cannot only be authenticated as proper to serve as evidence before the court, but can also be admitted over challenges to evidence that include hearsay and the like.

Death and Taxes: Common Taxes in Estate Planning and Florida Probate

Posted By on April 14, 2015

Before tomorrow’s April 15th deadline, people will be making financial decisions, like depositing funds in an IRA (individual retirement account), in an effort to pay less federal income tax.  Some of these tax decisions can also be used as part of an estate planning tax strategy (other tax strategies that can have duel usage, include investing in a life insurance policy or investing in an annuity). (Also see “2014 Year End Estate Planning.”)

 

Taxes Payable At Death

Taxes are a part of life, and the after life (since they are paid by your estate). Common taxes that must be paid and that are related to someone dying, include:

  1. Federal income taxes on income earned in the year of the death;
  2. Federal income taxes on income earned by the estate during the estate administration;
  3. Gift taxes;
  4. Capital gains tax on assets sold in the year of the death;
  5. Federal estate tax.

Proper planning with an estate planning lawyer can limit the amount of taxes that must be paid from your estate.  The benefit to this planning, of course, is to increase the amount that your beneficiaries will inherit from your estate.

What’s Happening With The Death Tax?

The federal estate tax is also known as the federal “death tax” and it’s always been controversial. It is a tax calculated on the estate’s net taxable assets, which is tallied by deducting allowable deductions from the total estate value, aka the gross estate (the definition of “gross estate” is not a simple calculation and it should be explained and calculated by a lawyer or accountant since certain assets owned at the time of death, and some transferred prior to death, for example, are included in calculating this figure).

If a federal estate tax is due, then the personal representative of the estate (aka executor) must file the federal estate tax return (Form 706) and determine what assets will be used to pay the tax.

This estate tax is different from an income tax that may be due by the estate.

Right now, there is a great deal of news coverage over a joint Senate and House effort to repeal the federal estate tax. The Death Tax Repeal Act Of 2015 would end the current tax levied on an estate.

Whether or not it will become law is debatable: Congress may pass the Death Tax Repeal Act but President Obama has already announced that if the bill reaches his desk, he will veto it. The President’s position is not to repeal estate taxes

Estate Planning Is For Everybody — It’s Not Just for the Rich

Given the changes that happen in tax laws each year on both the federal and state level, as well as the changes that happen regarding the federal estate tax, it is important to have estate plans in place and reviewed annually.  This is especially true if you have any concerns about maximizing how much inheritance you pass to your loved ones or your favored charities.

A Florida lawyer who handles estate planning and/or probate matters can help you determine the best route for you to take in estate planning – from drafting and finalizing a Last Will and Testament, to choosing between other asset transfer vehicles, like IRAs, Trusts (revocable, irrevocable, life insurance), etc.

It it surprising to learn how many people think they don’t need to have an estate plan in place — it’s not just something for the rich and the wealthy to consider – estate planning also includes planning for health issues – like who has the authority to make medical decisions for you or do you want certain measures taken to keep you alive, etc.

Also, life insurance policies, including burial insurance, can be purchased on many kinds of budgets that can provide for surviving families; and establishing trusts for minor children so they can go to college is always a good thing to consider – no matter how small your estate may be.

Finally, setting up an estate plan does not have to be expensive or complicated. It may not take that much time, either. And while most people do procrastinate about their estate plans, most people don’t want to pay, or don’t want their family to pay, any more in taxes than they have to — so maybe tomorrow’s Tax Deadline is a good incentive to get your estate plan in place!

Florida Probate Lawyer Costs and the Attorneys’ Fees Statute in Florida

Posted By on March 10, 2015

One of the biggest questions involved in probating someone’s estate after their passing is how much will the probate process before a Florida Probate Court itself cost? There are variables here depending upon each case, of course.

Different kinds of property may involve unique expenses. Having investments in other states or foreign countries can warrant specific expenses in the transfer of ownership and clearing of creditors, payment of taxes.

Larger estates will bring more probate costs than smaller estates, especially for those who have not done advance estate planning (where many assets can be removed from the probate process).

However, one cost that may be concretely identified and known — even in advance of any probate needs — is the cost that the Florida probate lawyer will bring to the table. This is because the Florida Legislature has passed specific Florida laws that establish and set attorneys’ fees for Florida estates moving through the Florida Probate Court judicial process.

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Florida Probate Lawyer Fee Schedule Per Florida Statute

According to Florida Statute 733. 6171, the following Florida Probate Lawyer Fee Schedule applies in Florida Probate matters. Homestead properties are not included here, and the lawyer’s fee is based upon not only the assets included in the probate estate at the time of filing, but any income that is generated by these assets during the probate case.

From Florida Statute 733.6171(3) the lawyer’s fee schedule is as follows:

(a) One thousand five hundred dollars for estates having a value of $40,000 or less.
(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.
(c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.
(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.
(e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.
(f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.
(g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.
(h) At the rate of 1 percent for all above $10 million.

Does This Always Apply? No.

This schedule is set up for efficiency in probating general probate matters where there isn’t any big surprise, allowing for payment of the probate lawyer without the need for a judge to review the legal fees and judge them to be reasonable.

If the Florida probate attorney’s bill comes within these amounts in the schedule, it is deemed to be “reasonable” and ready for payment by the estate. As the Florida Statute explains, “Attorneys for personal representatives shall be entitled to reasonable compensation payable from the estate assets without court order.”

However, the Florida probate lawyer and the estate’s personal representative (along with those “….bearing the impact of the compensation”) may contract around this schedule. For many reasons, there may be a need for legal compensation to be paid differently than what is set out in this general fee schedule. A written agreement can be made that is different than this Legal Fee Schedule and that is fine under Florida law and is usually done when everyone agrees that specific legal work is needed in the case.

What might that be? Florida probate lawyers may need to take steps to insure that there is no unwarranted will contest in the case, as well as defending against a challenge to the probated will should one be filed. That’s one example.

Other “extraordinary services” defined by Florida law here include:

  • will construction.
  • proceeding for determination of beneficiaries.
  • contested claim.
  • elective share proceeding.
  • apportionment of estate taxes.
  • any adversarial proceeding or litigation by or against the estate.
  • representation of the personal representative in audit or any proceeding for adjustment, determination, or collection of any taxes.
  • tax advice on postmortem tax planning.
  • review of estate tax return and preparation or review of other tax returns required to be filed by the personal representative.
  • preparation of the estate’s federal estate tax return.
  • purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters.
  • legal advice regarding carrying on of the decedent’s business or conducting other commercial activity by the personal representative.
  • legal advice regarding claims for damage to the environment or related procedures.
  • legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead.
  • involvement in fiduciary, employee, or attorney compensation disputes.
  • proceedings involving ancillary administration of assets not subject to administration in this state.

Ordinary vs Extraordinary Legal Services

Bottom line, the Florida Legislature has set up a schedule for everyone to follow regarding standard, ordinary, and expected work that a Florida probate lawyer will have to undertake in any probate matter in order to complete the probate process. If the estate goes outside that standard, general route with any number of unique (or extra-ordinary) situations, like a will contest or confusion over language of a will provision that needs judicial construction, or complications due to ongoing business activities, zoning issues, taxing matters, and the like, then the schedule does not apply.

In these extraordinary circumstances, the Florida probate lawyer will undertake specific legal work to meet those unique issues and challenges to the estate and the legal fees and expenses will be unique to that situation, controversy, or court fight.

If a Florida estate is valued in excess of $100,000, then there may well be extraordinary issues involved in probating that estate. It is wise to work with a Florida probate lawyer who will discuss fees and rates with the estate’s representative and who is amenable to fee arrangements that include flat fees, specific hourly rates, etc.