When and How to Remove a Personal Representative in Probate Proceedings
Once a person dies, one of the most important players involved with the deceased’s estate is the personal representative. The personal representative is a person, bank, or trust company appointed by a court to serve as the administrator of the deceased’s estate in probate proceedings. A probate proceeding is a court-supervised process that identifies and distributes the deceased’s property to his/her beneficiaries and pays the deceased’s debts. The personal representative is in charge of making sure the estate is opened, distributed, and closed properly. The person or entity selected to fulfill this role depends on a few factors. First, if the deceased has a will that names a person or entity as personal representative, that person or entity will undertake that role as long as they are qualified. If there is no will, the surviving spouse has the first right to be appointed, but if the spouse declines, the majority of the beneficiaries can choose a person or entity.
To qualify as a personal representative, a person must be a Florida resident or closely related to the deceased, such as a spouse, child, sibling, or parent. Further, this person must be at least 18 years old, free of physical or mental disabilities that would prevent performing the necessary duties, and never convicted for a felony. A bank or trust company can serve as personal representative if it is authorized to exercise fiduciary (i.e., protect and manage property) powers in this state.
If an individual is appointed, it is common for him/her to retain his/her own attorney because he/she is unlikely to be familiar with the legalities of the probate process. And, if the personal representative fails to take certain actions or diligently manage the affairs of the estate, he/she can be held liable. Because personal representatives wield so much power, Florida law has a mechanism for removing them, hopefully before the beneficiaries lose property rights in the deceased’s estate.
Grounds for Removing a Personal Representative
Florida law lists a number of reasons a court could remove a person or entity as personal representative, some merely procedural and others for improper acts.
The grounds for removing a personal representative for suspect or bad behavior include:
- failure to obey an order of the court;
- failure to account for sale of estate property or produce assets of the estate when required;
- dissipating or improper administration of the estate;
- failure to post a bond or security when required;
- conviction of a felony;
- insolvency of a corporate representative; and
- holding or obtaining interests that conflict with ethical administration of the estate (surviving spouses are excluded from this provision).
In addition, there are grounds for removing an individual or entity that are more procedural or lack a back faith element, including:
- a court determination the representative is incapacitated;
- the representative no longer resides in Florida; and
- the personal representative was qualified to fill this role when appointed but no longer is.
The court can initiate the removal process or any interested party can file a petition requesting the removal. The petition must include the factual basis for the request. Additionally, if the personal representative is removed, he/she is still subject to liability for unauthorized actions taken concerning the estate. After removal, the former personal representative must file an accounting within 30 days and deliver all of the records and property of the estate to the successor immediately or as specified in a court order. Failure to deliver these items permits a court to hold this person or entity in contempt, and the court could impose jail time for the noncompliance.
Consult an Estate Planning Attorney
If you have reason to suspect the personal representative of your loved one’s estate is not fulfilling his/her fiduciary duties, it is important to contact an attorney in order to limit the personal representative’s opportunity to further compromise the estate. The Tampa law firm of Bubley & Bubley, P.A. understands the emotional nature of these matters and will work to get the outcome you desire. Contact us to schedule a confidential consultation.