If you are named as a personal representative in a will, you may be worried about the responsibilities that accompany being a personal representative. Being a personal representative in a Florida probate administration is a job with a lot of responsibilities. If a personal representative were to use his or her position for wrongful conduct, the personal representative may face liability to beneficiaries or creditors that suffered damages. However, as long are you act ethically and have a trustworthy attorney representing you, there should not be anything to worry about if you are a personal representative in a Florida probate proceeding. Liability of the personal representative is also helpful to remember if you are a creditor or beneficiary in a Florida probate administration. If you think that a personal representative may be guilty of improper conduct, you should contact a Florida attorney right away.
Section 733.609(1), Florida Statutes provides an overview of the liability that a personal representative may face for misconduct. Under Section 733.609(1), Florida Statutes, “A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for loss for damage or loss resulting from the breach of this duty.” In an action against a personal representative for a breach of fiduciary duty, the court may award attorney’s fees to the prevailing party.
In the Florida Bar Journal article “Understanding Fiduciary Duty,” a fiduciary duty is defined as “a person holding the character as a trustee, or a character analogous to that of a trustee, in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires… a person have a duty, created by this undertaking, to act primarily for another’s benefit in matters connected with such undertaking… a person having duties involving good faith, trust, special confident, and candow towards another.” Therefore, the beneficiaries and creditors in a Florida probate estate require the personal representative to act in good faith, be truthful, and to be trustworthy. The personal representative must act in the best interests of the interested persons of the estate and in the best interests of carrying out what is required by a decedent’s will.
Section 733.610, Florida Statutes sets out a situation where the personal representative has a conflict of interest. Under section 733.610, Florida Statutes, “Any sale or encumbrance to the personal representative or the personal representative’s spouse, agent, or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction that is affected by a conflict of interest on the part of the personal representative, if voidable by any interested person except one who has consented after fair disclosure, unless: (1) the will or contract entered into by the decedent expressly authorized the transaction; or (2) the transaction is approved by the court after notice to interested persons.”
Furthermore, the personal representative can be removed from the position in the event that the personal representative violates one of the elements set out in section 733.504, Florida Statutes. Some of the most important reasons for the removal included in section 733.504, Florida Statutes include:
- Adjudication that the personal representative is incapacitated.
- Failure to comply with an order of the court.
- Failure to account for the sale of property or to produce and exhibit the assets of the estate if required.
- Wasting the estate.
- A conviction of a felony.
- Developing a conflict of interest that interferes with the administration of the probate estate.
As you can see, there are many ways that a personal representative may get into trouble while administering a Florida probate estate. This is where having an experienced probate attorney will help. An attorney will be able to spot problems that may arise for a personal representative and advise the personal representative on what action to take in order to avoid any problems or liability.
If you have been named as a personal representative in a will for a loved one who lived in Florida at the time of his or her passing, contact us today for a free Florida probate consultation. Our attorneys will be able to meet or talk over the phone to see what needs to be done in order to probate your loved one’s estate and provide an estimate of the cost. Contact us today to see if we can help you.
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