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.

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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 super 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 gamf.net 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:

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anagazawe.comDo 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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