Removal of a Personal Representative in a Florida Estate
March 15, 2022
Generally speaking, a personal representative is charged with a fiduciary duty to administer the estate for the interest of its beneficiaries, and is required to observe the same standards of care as trustees. Fla. Stat. 733.602(1).
A personal representative’s duties are set forth in the Florida Probate Code (Fla. Stat. 733.601 et seq.) and a few highlights of these duties include:
- Identify, gather, value, and safeguard the Decedent’s assets.
- Publish a notice to creditors in the newspaper, directing the potential claimants or creditors to file claims against the estate in the manner required by law.
- Diligently search for reasonably ascertainable creditors of the Decedent’s estate, provide notice to them of the time by which they must file claims.
- Serve a notice of administration, providing information about the probate estate administration and setting forth the procedures should someone object to the estate administration.
- Object to and defend improper claims against the estate, and (assuming the estate has the sufficient assets to do so) pay valid claims against the estate.
- File tax returns, pay any taxes which are owed by the Decedent’s estate, and pay any expenses of administration.
- Pay the statutorily required amounts to the Decedent’s surviving family, such as the statutory family allowance, and distribute the assets to the beneficiaries of the estate.
When a personal representative does not do his or her job – such as being remiss in their duties, misusing estate assets or being self-interested in the estate, or otherwise behaving in some improper way – then he or she can be removed as personal representative:
733.504 Removal of personal representative; causes for removal.—A personal representative shall be removed and the letters revoked if he or she was not qualified to act at the time of appointment. A personal representative may be removed and the letters revoked for any of the following causes:
- Adjudication that the personal representative is incapacitated.
- Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
- Failure to comply with any order of the court, unless the order has been superseded on appeal.
- Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
- Wasting or maladministration of the estate.
- Failure to give bond or security for any purpose.
- Conviction of a felony.
- Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.
- 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.
- Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
- Removal of domicile from Florida, if domicile was a requirement of initial appointment.
- The personal representative was qualified to act at the time of appointment but is not now entitled to appointment.
Of the above statutory subsections, a personal representative is probably more commonly sought to be removed for maladministration (mismanaging) or wasting the estate, or that the personal representative has a conflict of interest.
While mismanagement of an estate is self-explanatory, the conflict issue may involve an assessment of the conflict, including the degree of a conflict. If a personal representative has an interest that is adverse in an estate, the probate court may determine appropriate to appoint an administrator ad litem to handle that particular issue; hence, there would be no reason to completely remove the personal representative from the probate proceedings. In other words, the personal representative could stay on but for a particular issue or proceeding within the probate, for which an administrator ad litem could be appointed.
In addition, when conflicts arise between the personal representative and the estate’s beneficiaries, a probate court may exercise their discretion relative to the removal of a personal representative, see e.g., Pontrello v. Estate of Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988).