Florida Estate Planning Blog

Formal probate administration in Florida requires the appointment of a personal representative. An estate’s representative is the party appointed by the probate judge to direct the administration of a deceased person’s probate estate. Other states use terms such as executor, executrix, administrator, and administratrix to describe this important role. Once appointed, the representative of a probate estate has a legal duty to administer the estate according to the requirements of Florida law. Unfortunately, not all estate representatives take their duties seriously or are capable of performing their role in a responsible manner. When this happens, beneficiaries of the affected estate often seek legal assistance to facilitate the removal of the representative from their role. In this article, we examine how Florida law permits an estate’s representative to be removed.

Representative Appointment and Duties

Before examining whether an estate’s representative can be removed, it is first necessary to examine how a representative is appointed and what a representative’s duties are under Florida law.

Appointment

If an individual dies with a valid will, then the person named in the will to serve as the decedent’s estate’s representative is generally permitted by the probate court to serve in this role. However, when a party dies without a valid last will and testament, a representative must be appointed by alternative means. Under such circumstances, a decedent’s surviving spouse has first priority to serve as representative of the deceased party’s estate. If the decedent died without a living spouse, the decedent’s heirs must vote to choose a representative for the estate. The party who receives a majority vote is then appointed by the court to serve as the representative of the estate. However, if the heirs can’t reach a consensus regarding who will serve as representative, the heir who is closest in degree to the deceased party is entitled to choose who will serve in this role. A party may not be appointed to serve as an estate’s representative if they are a convicted felon, are mentally or physically incapable of performing the duties, or are under the age of 18.

Duties

After being appointed as representative of an estate, a party must:

• Identify, gather, value, and safeguard the deceased party’s assets.
• Publish a notice to potential claimants in a newspaper that directs them to file claims against the estate in the manner required by law.
• Serve a notice of administration that provides information about the administration of the probate estate and gives the procedures that are required to be followed by parties that object to the administration of the decedent’s probate estate.
• Conduct a thorough search to locate creditors of the estate and notify them of the time by which they must file claims.
• Object to and defend improper claims against the estate.
• Pay all valid claims.
• File tax returns and pay any taxes owed by the estate.
• Work with professionals, such as attorneys, appraisers, certified public accountants, and investment advisers to assist in the administration of the probate estate.
• Pay the expenses of administering the estate.
• Pay statutorily required amounts to the decedent’s surviving family.
• Distribute estate assets to beneficiaries.
• Close the estate.

Removal of Personal Representative

When the representative of an estate fails to fulfill the above duties, the estate and its beneficiaries can suffer financial and other consequences. Luckily, if an estate’s representative is incompetent, neglectful, self-interested, misuses the estate’s assets, or behaves in any manner that is improper, they can be removed from the role. To facilitate such a removal, a petition must be filed with an appropriate court. A petition to remove an estate’s representative must be served by formal notice and the subsequent steps are similar to any other civil lawsuit in Florida.

Grounds for Removal

In Florida, the representative of an estate shall be removed if they are not qualified to act at the time of appointment. Florida law identifies several grounds for such removal. The grounds to remove the representative of an estate in Florida are:

• Adjudication that they are incapacitated.
• Mental or physical incapacity that renders them incapable of performing their duties.
• Failure to comply with any order of the court unless the order has been overturned or superseded on appeal.
• Failure to account for the sale of estate’s assets or failure to produce the assets of the estate when required.
• Maladministration or wasting of the estate.
• Failure to give security or bond for any purpose.
• A felony conviction.
• The appointment of a receiver or liquidator for, or insolvency of, any corporate representative.
• Acquiring or holding adverse and/or conflicting interests against the estate that may or will interfere with the administration of the estate as a whole. However, this cause of removal does not apply to the surviving spouse because of the exercise of the right to an estate’s elective share, family allowance, or exemptions, as provided elsewhere in Florida law.
• Revocation of the probate of the deceased party’s will that designated or authorized the appointment of the representative.
• Removal of domicile from Florida, if Florida domicile was a requirement of the representative’s initial appointment.
• The estate’s representative was qualified to act at the time of appointment but is no longer entitled to appointment.

Most Common Reasons for Removal of Personal Representative

Although there are several grounds that can lead to the removal of an estate’s representative, actions to remove a representative generally fall into the two following categories:

• The representative wasted, stole, or mismanaged funds.
• The representative has a conflict of interest.

Although the first category is self-explanatory, the second requires some examination. When determining whether a conflict of interest warrants the removal of a representative, the degree of the conflict must be assessed. Generally speaking, the more serious the conflict of interest, the more likely the representative will be removed. However, if a representative has an interest that is adverse to the estate, Florida law allows the court to appoint an individual called administrator ad litem to oversee the issues that present a conflict to the representative, thereby avoiding the need to remove the representative.

In addition, conflicts sometimes exist between an estate’s representative and the beneficiaries of the estate. Although conflicts between a representative and beneficiaries are an express reason for removal under Florida law, courts may exercise their discretion to remove a representative in such situations. Therefore, whether a representative is removed due to conflicts with beneficiaries is assessed on a case-by-case basis.

Contact a Florida Estate and Trust Litigation Lawyer

If you need assistance with the removal of a personal representative in Florida, Upchurch Law is here for you. At Upchurch Law, knowledgeable and experienced Florida estate and trust litigation attorney Thomas Upchurch is here to assist you with all of your estate and trust litigation needs, including matters involving the removal of an estate’s representative. Upchurch Law services North and Central Florida, including Orlando, Daytona Beach, Jacksonville, Deland, Port Orange, Tampa, Palm Coast, Ormond Beach, St. Petersburg, St. Augustine, and Titusville. Please contact us today to schedule a free initial consultation with our experienced estate and trust litigation attorney.

FAQs

What is a Personal Representative?

The formal administration process in Florida requires the appointment of a representative. This party is the person appointed by the court to oversee the administration or probate of a deceased individual’s estate. As such, the individual who fills this role plays a critical part in winding up a decedent’s affairs. In order to be eligible to serve as the representative of a decedent’s estate in Florida, a person must:

• Be at least 18 years old.
• Be a resident of the state of Florida or related to the decedent by marriage, blood, or adoption.
• Be mentally and physically capable of serving as the estate’s representative.
• Have no felony convictions.

Can a Personal Representative be a Beneficiary?

As discussed above, an estate’s representative has a number of important legal obligations. However, in addition to these obligations, representatives also have some important rights. For example, the right to receive a share of the decedent’s estate if the party serving in the role of representative has been named as a beneficiary in the decedent’s will. In fact, it isn’t only allowable for an estate’s representative to be a beneficiary of the estate, but this is an extremely common scenario. When drafting an estate plan, the majority of people choose a loved one to serve as representative. For example, it is common for a spouse to select their partner to serve in this role and to name an additional family member, such as a child, as a backup representative should the partner be unavailable to serve as representative. A beneficiary generally shouldn’t be concerned that being the representative will disqualify them from receiving assets as directed by the will or Florida law.