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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.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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