What Can a Personal Representative Not Do in Florida?

What can an executor not do in Florida? A personal representative (often called an executor) cannot use estate property for personal gain, cannot act outside the will or a court order, and cannot pay debts in any order they choose.

This page walks through the main limits, one statute at a time, so you can check each rule yourself. If you were just named in a will, or a relative is running an estate and you’re uneasy about it, start here.

Why the Limits Matter Before the Estate Is Opened

The limits apply from the start, because the role carries strict legal duties. Florida’s probate law uses the term “personal representative,” so this page uses that term too. A fiduciary is someone trusted to manage property for other people.

Under § 733.602, a personal representative must observe the standards of care that apply to trustees. Under § 733.609, the duty is the same one a trustee of an express trust owes. A personal representative is liable to interested persons for loss caused by a breach. Those interested persons usually include beneficiaries and heirs.

Many readers reach this question during a loss. They are unsure what the role allows, and they haven’t decided whether they need a lawyer.

Who Can Serve and Who Can Decline the Role

Any legally competent adult who lived in Florida when the person died can serve, unless a disqualification applies. § 733.302 sets that basic test. § 733.303 lists the disqualifications. They include a felony conviction, a conviction for abuse, neglect or exploitation of an elderly person or disabled adult, a mental or physical inability to do the job, and being under 18.

Under § 733.305, certain trust companies and banks, including Florida-chartered trust companies, state banks and savings associations, and all national banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida, may also serve as personal representatives. Trust Counsel’s attorneys can serve individually as trustee or personal representative, and the firm advises and represents trustees, personal representatives and beneficiaries. Trust Counsel’s attorneys can serve individually as trustee or personal representative. Also, the firm advises and represents trustees, personal representatives and beneficiaries.

Being named in a will is not the same as accepting the role. Think through whether you want to serve before you act for the estate.

Actions a Personal Representative Cannot Take With Estate Property

Under § 733.610, a sale or encumbrance to the personal representative, their spouse, agent or attorney can be challenged by any interested person. Fla. Stat. § 733.610 provides that a sale or encumbrance to the personal representative, or to the personal representative’s spouse, agent, or attorney, or to any corporation, other entity, or trust in which any of them has a substantial beneficial or ownership interest, or any transaction affected by a conflict of interest on the part of the personal representative, is voidable by any interested person except one who has consented after fair disclosure. The transaction is not voidable if the will or a contract entered into by the decedent expressly authorized it, or if the court approves it after notice to interested persons. The same goes for a business where any of them holds a substantial ownership interest.

The deal can stand in limited cases. Under § 733.610, the deal is voidable by any interested person except one who has consented after fair disclosure. It also allows it if the will or a contract the decedent made expressly authorized the deal, or if the court approved it after notice to interested persons.

Other limits follow the same logic. Under § 733.602, the representative must use only the authority the probate code, the will and any court order provide, for the best interests of interested persons, including creditors. Using estate money for personal needs can breach the fiduciary duty described above. Under § 733.604, unless an inventory has been previously filed, the representative must also file a verified inventory. It lists estate property with reasonable detail and each item’s estimated fair market value at the date of death.

Timing and Payment Limits: Claims, Distributions and Order of Payment

A personal representative cannot pay estate obligations in any order they like. Florida sets a payment order by class. Under § 733.707, Class 1 covers costs, expenses of administration, and compensation of personal representatives and their attorneys. Later classes include funeral expenses, certain debts and taxes, and medical expenses from the last 60 days of the decedent’s illness. Class 8 covers all other claims. If the estate cannot pay a whole class, creditors in that class are paid in proportion to their claims.

Creditors also have a deadline. Under § 733.702, a claim generally binds the estate only if it is filed in the probate proceeding. The deadline is the later of 3 months after the first publication of the notice to creditors, or 30 days after service on a creditor who must be served. Fla. Stat. § 733.702 provides that, if not barred by s. 733.710, a claim or demand against the decedent’s estate that arose before the decedent’s death is binding on the estate, the personal representative, or any beneficiary only if it is filed in the probate proceeding on or before the later of 3 months after the first publication of the notice to creditors or, for a creditor required to be served with a copy of that notice, 30 days after service on that creditor. This applies even if the claim is unmatured, contingent, or unliquidated, and even if the personal representative has recognized it by paying part of it or interest on it. The same filing requirement covers claims of the state and its political subdivisions, claims for funeral or burial expenses, claims for personal property in the personal representative’s possession, and claims for damages, including actions founded on fraud or another wrongful act or omission of the decedent.

Pay for the representative is set by statute and, when the will sets criteria, by the will. Under § 733.617, a personal representative is entitled to a commission paid from estate assets for ordinary services. That commission is based on the estate’s compensable value. A representative may also give up all or part of that compensation.

When Heirs Disagree or Feel Shut Out

A personal representative cannot ignore a written request from a residuary beneficiary or heir for an explanation of how an inventory value was set, or from another beneficiary about assets distributed or proposed to be distributed to that beneficiary. Under § 733.604, a beneficiary who asks in writing gets a written explanation of how an asset’s value was determined: a residuary beneficiary or heir in an intestate estate receives it for all inventoried assets, and any other beneficiary receives it for all assets distributed or proposed to be distributed to that beneficiary. If an appraisal was obtained, a copy is provided to a residuary beneficiary or heir in an intestate estate for all inventoried assets, and to any other beneficiary for all assets distributed or proposed to be distributed to that beneficiary. The representative must also tell each beneficiary about this right.

Heirs commonly raise the same concerns. These include long delays, expenses they can’t explain, and disagreements about what the will says. Those concerns can lead to a court dispute. Under § 733.609, in actions for breach of fiduciary duty or challenges to a representative’s powers, the court shall award taxable costs, including attorney’s fees. How any dispute ends depends on its facts.

Money paid out improperly can also come back. Under § 733.812, a distributee or claimant who was paid improperly must return the assets or funds. Fla. Stat. § 733.812 reads: “A distributee or a claimant who was paid improperly must return the assets or funds received, and the income from those assets or interest on the funds since distribution or payment, unless the distribution or payment cannot be questioned because of adjudication, estoppel, or limitations.” The return includes income or interest, unless adjudication, estoppel or limitations bars the question. Fla. Stat. § 733.812 reads: “A distributee or a claimant who was paid improperly must return the assets or funds received, and the income from those assets or interest on the funds since distribution or payment, unless the distribution or payment cannot be questioned because of adjudication, estoppel, or limitations.”

Removal, Probate Requirements and Next Steps

A court can remove a personal representative for specific causes. Other causes listed in the statute are a failure to obey a court order that has not been superseded on appeal, and a failure to account for the sale of property or to produce and exhibit the estate’s assets when so required (Fla. Stat. § 733.504). The statute also permits removal when a personal representative holds or acquires interests that conflict with or are adverse to the estate and that will or may interfere with administering the estate as a whole. That cause does not apply to a surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions provided elsewhere in the probate code (Fla. Stat. § 733.504). Removal is a court decision, not something heirs can do on their own.

Probate is a separate question. Whether an estate must go through probate depends on the type of property and how it is titled.

If a will has named you to serve, or you’re worried about how a relative is handling an estate, you don’t have to sort out the rules alone. Call (305) 707-7126 or schedule online with Trust Counsel, PL in Coral Gables. The first consultation is free, confidential and comes with no obligation to continue.