Removal of a Florida Personal Representative: Party Named in the Will vs The Party Appointed by The Court
Posted By Larry Tolchinsky 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.”
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).