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Removal of Personal Representative

Written by on Oct 2, 2013| Posted in: General

What are the Grounds for the Removal of a Personal Representative?

Florida Statute 733. 504 lists the causes for which a personal representative may be removed.

Those are:

1)      Adjudication of incompetency or, even without adjudication, physical or mental incapacity rendering the P.R. 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2)      Failure to comply with an Order of the probate court unless the order is superseded on appeal;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;

A disagreement between beneficiaries and the personal representative is not likely to support removal. Gresham v Strickland, 784 So2d 578 (Fla. 4th DCA 2001).  In consistently making this ruling, the courts have been mindful of avoiding unnecessary litigation. The courts have also recognized a distinction between the standards with respect to the qualifications of the personal representative at the time of initial appointment and the standards for removal actions. The courts have consistently held that an alleged conflict of interest would not bar the initial appointment of a nominated personal representative  and that the proper procedure is to assert the conflict of interest as a grounds for removal after the personal representative named in the will is appointed.  The probate court does not have discretion to allow a legally unqualified personal representative to serve. Most of the reported cases relating to sufficiency of cause for removal deal with waste and mismanagement. The dgree of conflicting or adverse interest sufficent to cause a removal is subject to the discretion of the court.

In addition, conflicts between co-personal representatives and and hostility of the beneficiaries toward the personal representative are not specifically mentioned in the statute but have been the subject of litigation and the issue of whether the grounds in Fla. Stat. 773.504 are exclusive has arisen. However, there has been no clear guidance in the case law with regard to whether the grounds within the statute is exclusive. 

The courts have been consistent in determining that the mere allegation and proof of the existence of one or more of the grounds listed in the statute for removal is not necessarily sufficient to state a cause of action for removal. It must be shown that the estate assets and administration are endangered by the personal representative.  And importantly, actual – not potential – mismanagement must be proved.

Although the statute provides the roadmap as to the causes for which a personal representative can be removed, many times there is not a clear-cut answer as to whether actual circumstances would necessitate the removal by the court. And, as the court has discretion in many instances and has been, at times, inconsistent in it’s approach, the burden on those Petitioning the Court (how the action is commenced) is such that the Petitioner should be diligent in gathering and presenting the facts he or she feels constitute the grounds for removal.    

If you have questions about removal of a personal representative, contact the attorneys at Adrian Philip Thomas, P.A. for a free consultation.

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