The estate was opened fourteen months ago. Your father's wife is the personal representative. In that time the house has not been listed, and her son has been living in it. You have never seen an inventory. Your calls go to a lawyer's assistant, and a distribution has been promised "soon" three times.
Beneficiaries in this position usually ask one question: can she be removed? Florida law allows it, on specific grounds and through a specific process. It also provides less drastic tools that often solve the problem sooner and at lower cost to the estate everyone is waiting to share.
What is a personal representative supposed to do?
Personal representative is Florida's term for an executor or administrator. The probate court appoints one to settle the estate, and the appointment carries fiduciary duties to everyone with an interest in it. The work follows a sequence: take control of the assets, file an inventory, give notice to creditors and pay valid claims, file tax returns, keep property insured and maintained, account for what came in and went out, and distribute what remains under the will or the intestacy statutes. The personal representative must do this with reasonable speed, impartially, and under the supervision of the court. Unlike a trustee, who usually acts without court involvement, a personal representative works inside a court file that interested persons can review.
On what grounds will a court remove one?
The grounds are listed by statute. They include incapacity; failure to comply with a court order; failure to account for the sale of property or to produce the estate's assets when required; wasting or maladministration of the estate; failure to give a required bond; conviction of a felony; the insolvency of a corporate personal representative; and holding or acquiring conflicting or adverse interests that will or may interfere with the administration of the estate as a whole. A personal representative may also be removed if the will that named her is revoked, or if she is no longer qualified to serve. The statute protects a surviving spouse on one point: claiming the rights the law gives a spouse is not a conflict that justifies removal.
What does maladministration look like in practice?
It looks like an estate being run for the convenience of the person in charge. Estate property is used personally: the house occupied, the car driven, the account borrowed from. Estate funds are mixed with personal funds. Assets are sold to the personal representative or to relatives for less than they are worth. Insurance lapses, tax deadlines pass, and property deteriorates. Some beneficiaries receive money or information and others receive neither. Inventories and accountings are late or never filed. Delay by itself is weaker ground. Estates with litigation, tax issues, or property that is hard to sell take time, and a judge will want specifics and evidence of harm before concluding that slow means improper. The strongest petitions pair a pattern with a document: the unlisted house with the son's occupancy, the missing inventory with the deadline for filing it.
What can you do short of removal?
A good deal. A beneficiary may request a copy of the inventory, must be served with the final accounting, and can ask the court to require an interim one. Filing a request for notice in the probate case means you receive every paper filed from then on. If information is not provided, the court can be asked to compel an inventory or an accounting, to order a distribution, or to require a bond. You may object to an accounting or to the compensation claimed. Where the personal representative has a conflict on one particular matter, the court can appoint an administrator ad litem to handle that matter alone. These steps frequently cure the problem. When they do not, they create the record a removal petition needs.
How does the removal process work?
Any interested person, including a beneficiary, an heir, or a creditor, may petition the court where the estate is being administered, and the court may also act on its own motion. The petition begins an adversary proceeding within the probate case, with formal notice, a response, the exchange of evidence, and a hearing at which the person seeking removal carries the burden of proof. While the petition is pending, the court can restrict what the personal representative may do with estate assets. If the court orders removal, the removed personal representative must file an accounting within thirty days and must deliver the estate's assets and records to the successor, and can be held in contempt for failing to do either. The successor is the alternate named in the will, if there is one, or a person appointed by the court.
Can a removed personal representative be made to pay?
Yes. A personal representative who breaches a fiduciary duty is personally liable for the resulting loss, and the court can impose that liability through a surcharge. It can also reduce or deny the personal representative's compensation and decline to let the estate pay for the lawyers who defended the misconduct. A bond, where one was required, is a source of recovery. A beneficiary whose efforts benefit the estate as a whole may ask that the reasonable attorney's fees incurred be paid from the estate.
What deadlines and costs should you weigh?
Probate moves on short deadlines. Objections to an accounting must generally be filed within thirty days after it is served, and once a final accounting is approved and the personal representative is discharged, most claims are barred. Cost matters as much. Removal litigation is paid for, on at least one side, out of the estate the beneficiaries will divide. A targeted petition to compel an accounting or a distribution sometimes achieves more than a removal fight, and mediation is available in probate as in any other case. Before filing anything, read the court docket, obtain the inventory and any accountings, and write down the specific acts and omissions you can prove.
Salomon Smith PLLC represents beneficiaries, heirs, and fiduciaries in contested estates across Florida, including petitions to compel accountings and to remove personal representatives. If an estate you have an interest in is being mishandled, call (305) 297-1018 for a free consultation, or learn more about our trust and estate litigation practice.
This article is for general informational purposes only and is not legal advice.