Probate is the process of administering and distributing the estate of a deceased person. The state of Florida has specific rules to guarantee full legal compliance throughout the whole process, including the appointment of an adequate personal representative.
In this article, you will understand the concept of an executor’s breach of duty in Florida probate.
What Are the Duties of a Personal Representative in Florida?
Also referred to as an executor, the personal representative is an elementary aspect of formal probate proceedings.
Under Florida Statutes §733.602 (1), “a personal representative is a fiduciary who shall observe the standards of care applicable to trustees.”
Hence, “a personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and this code as expeditiously and efficiently as is consistent with the best interests of the estate.”
The same statute adds that the “personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.”
Florida Probate Personal Representative Breach of Duty – As Provided by Law
Florida Statutes §733.609 (1) provides that “a personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty.”
Additionally, “in all actions for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers, the court shall award taxable costs as in chancery actions, including attorney’s fees.”
When a personal representative incurs a breach of duty, one of the interested parties to the estate can file a civil lawsuit. Generally, the injured party will seek an equitable remedy, such as removing the fiduciary from the role.
Depending on the severity of the breach, the court may award the plaintiff with monetary compensation for any losses suffered because the executor breached his or her fiduciary duty. The plaintiff must demonstrate that:
- A fiduciary relationship actually existed
- The fiduciary duty was breached by the personal representative, and
- The plaintiff was injured by the breach of duty
Is Breach of Fiduciary Duty a Crime in Florida?
Some Florida residents might question whether a personal representative’s self-dealing, payment of excessive compensation, or embezzlement/misappropriation of estate property can be considered a crime.
State law provides that a breach of fiduciary duty is not a criminal offense, but a civil cause of action. The consequences for a breach of fiduciary duty can be serious, such as the immediate removal from the position and personal liability.
Please note that civil lawsuits will not result in a criminal record against the personal representative or require the defendant to spend time in jail. There are a few exceptions in cases involving theft, fraud, or exploitation of elderly or disabled persons, which might result in criminal offenses.
Executor’s Breach of Duty Florida – Immediately Contact Attorney Romy B. Jurado
Whether you are filing a lawsuit for breach of duty or defending against claims of breach of executor’s duty, waste no time with uncertainty. Contact us today by calling (305) 921-0976 or emailing [email protected] for an individual consultation.