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.
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?
- 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?