Concerned That a Personal Representative Has Breached Their Duties?

A personal representative breach of fiduciary duty happens when the person running an estate fails to act in the estate’s best interests or the rights of the people entitled to it. This role involves responsibilities that depend on the facts of each matter. Heirs who see warning signs have real options, and this page explains them in plain terms using Florida’s probate statutes.

What Duties Does a Florida Personal Representative Owe?

A personal representative owes fiduciary duties to the estate and the people it serves. A fiduciary is someone trusted to act for another person’s benefit, not their own. Under Fla. Stat. § 733.602, a personal representative must observe the standards of care that apply to trustees.

The representative must also settle and distribute the estate under the will and the Florida Probate Code. This work must move as efficiently as the estate’s best interests allow. The representative must use the code’s authority, the will, and any court order for the best interests of interested persons, including creditors.

The same rule appears in Fla. Stat. § 733.609. A representative’s fiduciary duty is the same as a trustee’s duty for an express trust. A representative who breaches that duty is liable to interested persons for resulting damage or loss.

The duty has limits. Under § 733.602, a representative is not liable for an act of administration or distribution that was authorized at the time.

Does Florida Use ‘Executor’ or ‘Personal Representative’?

Florida uses the term personal representative. The personal representative is the fiduciary appointed by the court to administer the estate.

Many readers search for “executor,” so this page uses personal representative (often called an executor) and keeps the Florida term after that.

The title matters for a practical reason. The court grants letters, which give the personal representative authority to act for the estate. The statute says a personal representative must act for the best interests of interested persons, including creditors. A beneficiary is an heir at law in an intestate estate, or a devisee under a will.

Common Forms of Breach by a Personal Representative

Common examples of a personal representative breach of fiduciary duty in Florida fall into a few groups.

Selling property without proper authority. Whether a court must approve a sale depends on the will. Under Fla. Stat. § 733.613, title does not pass until the court authorizes or confirms some sales. A will with a specific power of sale can allow a sale without court confirmation.

Under Fla. Stat. § 733.610, a sale or encumbrance to the personal representative, the personal representative’s spouse, agent, or attorney, or to any corporation, other entity, or trust in which one 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, unless the will or a contract entered into by the decedent expressly authorized the transaction or the court approved it after notice to interested persons. A deal can look ordinary on paper and still involve a conflict.

Failing to protect the estate. The representative must take all steps reasonably necessary to manage, protect, and preserve the estate until distribution, under Fla. Stat. § 733.607.

Records and improper payments. A representative must file a verified inventory, unless one has already been filed, and file amendments when values prove wrong, under Fla. Stat. § 733.604. A distributee or claimant who was paid improperly must return the assets or funds received, plus income or interest since distribution or payment, unless the distribution or payment cannot be questioned because of adjudication, estoppel, or limitations; if the distributee or claimant no longer has the property, its value at the date of disposition, income thereon, and gain received must be returned, under Fla. Stat. § 733.812.

Warning Signs an Heir Can Document

An heir should keep a written record of each step the personal representative takes. Start with what you already have: estate notices, inventories, accountings, bank statements, deeds, and letters from the representative.

Note the dates when property was listed, sold, transferred, or refinanced. Also note each request for information and whether anyone answered it.

Florida gives beneficiaries a specific tool. Under Fla. Stat. § 733.604, upon written request a residuary beneficiary or heir in an intestate estate may get an explanation of how an inventory value was set, or a copy of any appraisal, for all inventoried assets; any other beneficiary may get this for assets distributed or proposed to be distributed to that beneficiary. Put that request in writing and keep a copy.

A clear timeline helps. It lets a lawyer sort the facts quickly and lets a court follow what happened. Many heirs wait to write things down until a dispute is already open, and by then details have faded.

What an Heir Can Ask the Probate Court to Do

An heir can ask the probate court to address misconduct. The court decides the remedy based on the facts and the law. The heir’s job is to bring the issue to the court’s attention with clear facts. The American College of Trust and Estate Counsel explains how probate administration works and when disputes need court involvement.

One route is a request to remove the representative. Fla. Stat. § 733.504 lists the grounds. They include failing to comply with a court order (unless the order has been superseded on appeal), failing to account for the sale of property or produce estate assets when required, wasting or mismanaging the estate, and holding interests that conflict with the estate (other than a surviving spouse’s exercise of the elective share, family allowance, or exemptions).

The statute says removal is in addition to any penalties prescribed by law. Each removal matter turns on its own facts.

Surcharge, Recovery, and Attorney Fees

A surcharge asks the court to hold the personal representative personally responsible for losses caused by a breach. Under Fla. Stat. § 733.619, a representative is individually liable for certain obligations or torts only if personally at fault. That question can be decided in a proceeding for accounting, surcharge, or indemnification.

Under § 733.609, a representative is liable to interested persons for damage or loss caused by a breach. In actions for breach of fiduciary duty or challenging how a representative used or failed to use their powers, the court must award taxable costs as in chancery actions, including attorney’s fees. The court may direct payment from a party’s interest in the estate, from that party’s other property, or both.

Outside these statutes, the default rule is different. Under Florida law, each party generally pays its own attorneys’ fees unless a contract or statute provides otherwise, as stated in Price v. Tyler.

Time Limits for Acting on a Breach

Florida sets filing deadlines by type of action, so the deadline depends on the kind of claim. Fla. Stat. § 95.11 sets different time periods for different categories of actions.

Timing can be tricky. Under § 733.812, a distribution that was paid improperly can be questioned unless the question is barred by adjudication, estoppel, or limitations. The dates a payment was made and discovered can matter a great deal.

Start gathering facts now, even while you decide what to do. Bank records, inventories, and emails are easier to collect while they are fresh.

Related Questions for Florida Heirs

Talk With Trust Counsel About Your Estate Question

Picture an heir who sees the personal representative list the family home for sale, pay out part of the estate early, and stop replying to questions about the inventory. That situation raises the issues covered above.

Trust Counsel, PL focuses on probate and trust disputes for heirs and beneficiaries from its Coral Gables office. The firm advises and represents trustees, personal representatives and beneficiaries. Leslie V. Marenco is the responsible lawyer for this page.

The firm offers a free first consultation, which is confidential and carries no obligation to continue. Call (305) 707-7126 or schedule online.