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2) Failure to comply with an order of the probate court unless the order is superseded on appeal;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;
10) 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 an estate.
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 personal representative.
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.