Who is a Personal Representative in Florida?
A personal representative of an estate is an individual who is temporarily placed in charge of administering and representing the estate and the assets of the decedent. This person is named either in the decedent’s Last Will and Testament or appointed by the court in a probate proceeding. In Florida, a Personal Representative must be over the age of eighteen, must have the necessary physical and mental capacity to handle their duties, and cannot be a convicted felon. A personal representative owes fiduciary duties to the estate’s beneficiaries and is accountable to courts. For example, a personal representative has a duty to act in accordance with the decedent’s wishes and generally, may not personally profit from the estate, except when the taking reasonable compensation for his services as the personal representative of the estate. A personal representative must also treat the estate’s beneficiaries equally and provide the necessary notices and disclosures each beneficiary is entitled to under the Florida Probate Code.
What is a Surcharge Action in Florida?
A surcharge action in Florida is a legal action that may be brought against a personal representative when there are allegations that the personal representative has breached his fiduciary duty in order to impose personal liability on a personal representative. Section 733.619(4) of the Florida Statutes states that “[i]ssues of liability as between the estate and the personal representative individually may be determined in a proceeding for … surcharge.” This action functions much like a civil lawsuit and is filed in probate court. It also requires formal notice of the surcharge action to be served on the personal representative.
The petition for surcharge filed against the personal representative must show that the petitioner has standing to bring the claim (they should be an interested person), the appointment of the personal representative, the alleged breach of duty and any losses incurred by the petitioner. Fletcher Belcher, Belcher’s Redfearn Wills And Administration In Florida § 11:13 (2019). A surcharge action can can remove the personal representative from his duties or force him to compensate the mismanaged estate or the estate’s beneficiaries.
Can I Remove a Personal Representative for Mismanagement of Assets in Florida?
The answer is: it depends. For example, the Florida Supreme Court has stated that a personal representative cannot be held responsible for the success of a business. First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370 (1931). However, an action for surcharge can be filed for such actions as:
- Personal Representative personally gaining from the sale of the business.
- Personal Representative is not able to keep the estate assets income-producing.
- Personal Representative fails to object to a creditor’s claim against the estate.
- Personal Representative delegates all of his administrative authority to an attorney or other professional. However, a Personal Representative may use the services of an attorney or a financial advisor in their administrative duties for the estate, and in case of a mistake made by that hired professional, the Personal Representative would not be liable for any losses of the estate.