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 super mario 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.

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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, gamf.net 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.

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