In the wake of the passing of a friend or
loved one, one of the first questions that must be answered is whether probate
will be required to administer an estate. If probate is required, the court
will appoint a personal representative and then oversee the process of
identifying, gathering and distributing the assets of the decedent.
Estate assets that are not exempt from
creditor claims will be used to pay the decedent’s creditors before the
remaining assets will be distributed to the decedent’s heirs or the beneficiaries
of their will. The person placed in charge of administering the decedent’s assets
is the personal representative or curator of the estate. A personal
representative is defined as “the person, bank or trust company appointed by a
judge to administer a decedent’s probate estate.”
The personal representative can be anyone from
a grandson to a daughter, or sometimes even a family friend. Florida law generally
allows almost anyone listed in a decedent’s will to act as personal
representative. However, if a decedent dies intestate, which means without a will,
the court will generally want the decedent’s closest relative or primary heir
at law to serve as personal representative.
Instances often arise were the personal
representative and beneficiaries end up in a dispute over the administration of
the estate. In these disputes, beneficiaries will often seek removal of the
personal representative so they can exert more control over estate administration.
A personal representative can be removed for many causes, some of which are:
1) Adjudication of incompetency or, even without adjudication, physical or mental incapacity rendering the personal representative incapable of discharging his or her duties;
2) Failure to comply with an order of the probate court unless the order is superseded on appeal;
3) Failure to account for the sale of property or to produce for inspection the estate assets;
4) Wasting or other maladministration of the estate;
5) Failure to give bond or security;
6) Conviction of a felony by an individual personal representative or insolvency of a corporate personal representative;
7) Revocation of probate of a will that names the personal representative;
8) Conflicting or adverse interests against the estate;
9) Removal of domicile from Florida if domicile was a requirement of initial appointment;
Lack of present ability to qualify for appointment;
The courts have been clear that for the beneficiaries
to pursue an action to remove the personal representative, there must be an
issue more substantial than a mere disagreement between the beneficiaries and
the personal representative. (Fla. 4th DCA 2001).
The courts are diligent in working to prevent
this type of litigation, as they go to great lengths to ensure personal
representatives meet the legal requirements to administer an estate, which effectively
removes many of the causes of action listed above.
Perhaps the most common and successful cause
of action against a personal representative is for “waste and mismanagement” of
The courts have consistently ruled that the mere
potential for waste and mismanagement to occur will not give rise to a valid
cause of action. Rather, a cause of action will only be successful when an estate’s
assets and the ability to administer those assets are threatened by the
Specific districts have different standards
for what constitutes “waste and mismanagement” so it is important for anyone who
plans to pursue a cause of action against a personal representative to work with
legal counsel experienced in probate litigation.
If you have any question about removing a
personal representative or the process involved, call Bedy Law for a free
consultation at (727) 308-0529.