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Successor Personal Representative May Sue Attorney for Estate

Written by on Jun 10, 2014| Posted in: Estate Litigation

FLORIDA APPELLATE COURT RULES SUCCESSOR PERSONAL REPRESENTATIVE IS ALLOWED TO SUE A FORMER PERSONAL REPRESENTATIVE’S ATTORNEY FOR MALPRACTICE

Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014)

A lawsuit was filed in Florida alleging the initial personal representative, with her lawyer’s guidance, improperly disclaimed or transferred out of the estate certain assets belonging to the estate that could have been used to pay its creditors.  A trial court ruled that a successor personal representative does not have standing to bring a legal malpractice action against the Florida attorney who was hired by the initial personal representative to aid her in the administration of the estate. The appellate court reversed and stated that the powers, duties, and obligations of the personal representative apply not only to the estate, but also to other individuals related to the estate’s administration, including its beneficiaries, creditors, contractors, accountants, and attorneys.  The appellate court decided that a successor personal representative has the same power and duty as the original Florida personal representative to complete the administration and distribution of the estate as expeditiously as possible.  Therefore, the powers granted to the original personal representative flow to the successor personal representative.

The Florida Probate Code expressly grants a personal representative the power to engage a lawyer to represent her and to pay the lawyer from estate funds.  The personal representative also has the power to prosecute lawsuits or proceedings for the protection of the estate and the benefit of interested parties.  A personal representative has the duty to act within “the best interests of the estate” and in “the best interests of all interested parties, including creditors.”  This means the Florida personal representative is required by law to pursue assets and claims of the estate, with value, including those assets which are in the hands of a former personal representative or his/her agents.  Thus, there is no dispute that an estate’s personal representative had standing to bring suit against the lawyer for legal malpractice. Thus, all of the power and rights the initial personal representative possessed, including the right to bring suit against the Florida lawyer on behalf of the estate, transferred to the successor personal representative. In essence, the new personal representative stepped into the shoes of the initial personal representative and could sue the attorney for negligent representation.

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