PersanteZuroweste handles probate litigation matters in Pinellas, Pasco, and Hillsbrough counties. If you would like a free consultation to discuss a potential will contest, please do not hesitate to contact our firm at (727) 796-7666.
A suit to remove a personal representative is filed in the probate estate, through a Petition. The Petition must be served by Formal Notice, and the action proceeds exactly like a traditional civil lawsuit. In fact, the Florida Rules of Civil Procedure apply to the entire process.
The Florida Legislature created a list of statutory grounds for removal of a personal representative:
A personal representative shall be removed and the letters revoked if he or she was not qualified to act at the time of appointment. A personal representative may be removed and the letters revoked for any of the following causes:
(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of the discharge of his or her duties.(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.(5) Wasting or maladministration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 was qualified to act at the time of appointment but is not now entitled to appointment.
Pay close attention to that second sentence. Just because a personal representative violated the statute, does not mean they must be removed as personal representative. At least one Florida court has required that the estate be "endangered" for a personal representative to be removed. In re Murphy's Estate, 336 So. 2d 697, 699 (Fla. 4th DCA 1976) ("The removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered.").
Generally speaking, actions to remove a personal representative fall into two categories:
1. The Personal Representative stole, wasted, or mismanaged funds.
2. The Personal Representative has a conflict of interest.
The first category is straightforward, but the second is more complicated. Any conflict of interest is not enough to remove a personal representative, the degree of the conflict is critical. If a Personal Representative has an interest that is adverse to the estate, Florida permits the court to appoint a person called an administrator ad litem to oversee the issues where a personal representative has a conflict.
There is a second type of conflict, which is the conflict between the personal representative and the beneficiaries of the estate. Although conflict between the personal representative and the beneficiaries are an express reason for removal under Florida Statutes Section 733.504, courts have used their discretion to remove a personal representative when there is hostility with the beneficiaries.
The answer is a cautious yes. They can be recovered, but there is no guarantee.
For costs, the answer is a little more clear. Costs are awarded to the prevailing party, as in chancery actions, pursuant to Florida Statute 733.106.
Although it is common for attorney's fees to be awarded to the prevailing party, there is no guarantee. Florida Statutes Section 733.106(3) states that "[a]ny attorney who has rendered services to an estate may be awarded reasonable compensation from the estate." Many Florida courts have awarded attorney's fees to prevailing petitioners, and that money is usually paid from the estate. However, even a successful removal does not mean that fees will be awarded.
After a personal representative is removed, they must immediately deliver the estate assets to the new personal representative, if one is appointed, or to the remaining personal representative(s).
PersanteZuroweste handles Estate and Probate litigation matters. If you believe that you may need legal assistance regarding a Florida probate litigation matter, please contact us at (727) 796-7666.
PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.