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Removal of Personal Representative

Written by on May 16, 2011| Posted in: Estate Litigation

CAN A PERSONAL REPRESENTATIVE OF AN ESTATE BE REMOVED?

Pursuant to Florida Statute 733.302, any person who is over the age of 18 years old, and is a resident of Florida at the time of death of the person whose estate is to be administered is qualified to act as personal representative in Florida.

You may receive a copy of the Notice of Administration of an estate, which will indicate who is the acting Personal Representative of that estate.  Pursuant to Florida Statue 733.212, a copy of the notice of administration should be served on the following persons who are known to the personal representative:  the decedent’s surviving spouse, beneficiaries, the trustee of any trust and each qualified beneficiary of the trust, persons who may be entitled to exempt property, and interested persons.  Florida Statute 731.201(23) defines an interested person as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  Under Florida Statute 731.201(2), a beneficiary means an heir at law in an intestate estate (estate without a Will) and devisee in a testate estate (estate with a Will).

In the event you receive a Notice of Administration, and believe that the person who was named as Personal Representative is not qualified to hold that position, it is possible to have a personal representative removed and a successor personal representative appointed. 

Florida Statute 733.504 states that a personal representative may be removed and letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:

(1) Adjudication that the personal representative is incapacitated.

(2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.

(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.

(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.

(5) Wasting or maladministration of the estate.

(6) Failure to give bond or security for any purpose.

(7) Conviction of a felony.

(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.

(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.

(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.

(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.

(12) The personal representative would not now be entitled to appointment.

Also, it is important to note that pursuant to Florida Statute 733.303, a person is not qualified to act as a personal representative if the person:

(a)  Has been convicted of a felony;

(b)  Is mentally or physically unable to perform the duties; and

(c)  Is under the age of 18 years.

The personal representative has specific fiduciary duties and obligations to the beneficiaries of an estate.  If a beneficiary believes that there has been mismanagement, self-dealing, divided loyalties, conflict of interest, or a breach of fiduciary duty by the personal representative of an estate, it is imperative that the beneficiary retain skilled and competent counsel to discuss their rights as the beneficiary of an estate to ensure that the beneficiary receives the appropriate distributions and to ensure that the personal representative is performing all of their fiduciary duties according to the Florida Statutes.  If the personal representative has breached their fiduciary duties, then competent counsel could have the personal representative removed, and request that the Court appoint a successor personal representative.

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