In Florida the personal representative is appointed by a court and does not become a personal representative until appointed even if they are named as the personal representative in a decedent’s Will. The court will look first to any Will that specifies the priority of a Florida personal representative. If there is no Will, the court will look first to a surviving spouse and then a person selected by a majority of the heirs.
It is difficult but not impossible to remove a personal representative who has been appointed by the court unless there has been a failure to provide proper notice of the probate proceeding.
Removing A Florida Personal Representative
There are circumstances when a Florida probate court can override a decedent’s choice of an executor or personal representative. Sometimes there is a dispute over the validity of a Last Will and Testament or problems between people with equal representation. In some of the cases the Florida Probate Court may choose to appoint a temporary personal representative or a curator to serve as the personal representative.
A personal representative or curator are entitle dot a reasonable compensation under the Florida Probate Code. Compensation in estates with less than 1 million in assets is approximately 3% of the probate estate. The Florida Probate Code has a schedule of reasonable fees that cover ordinary duties. If there is additional litigation or tasks outside of the ordinary course of a probate proceeding, the personal representative may be entitled to a larger fee. In some cases when an attorney is appointed to serve as a personal representative by the court, the fee may be based on an hourly rate as approved by the court.
When there is more than one person who is legally qualified to act as a personal representative the probate judge my select the one who is “best qualified”.
Reasons to Remove a Personal Representative.
Because of the duty owed to the estate, a personal representative may be removed if they do not act in the best interest of the estate. In such a case, the court can remove the personal representative and appoint a successor.
The Florida Probate Code lists causes for removal of a Personal representative.
If the Personal representative becomes adjudicated by a court to be incapacitated.
A physical or mental incapacity which leaves the personal representative unable to perform his or her duties.
- Failure of the personal representative to comply with a court order.
- Failure to account for the sale of property or provide an inventory.
- Wasting the assets of an estate.
- Failure to post bond.
- Conviction of a felony.
- Insolvency or a corporate personal representative.
- Except for a surviving spouse, acquiring a conflict of interest that may or will interfere with the administration of the estate.
- Revocation of the will naming the person as personal representative.
- Removal of Florida as a Domicile unless domicile is not a requirement.
- If the personal representative would not now be entitle to appointment.
Any “interested person” can petition the court for removal. This is quite a low bar, and means that anyone who stands to lose something due to the personal representative’s actions (usually a person who anticipates receiving assets of the estate) can file a petition. Alternatively, the court can initiate removal proceedings on its own.
Once a personal representative has been removed, he or she must file a final accounting of his or her administration and surrender any assets in his or her possession to the new personal representative appointed by the court.
If you are involved in a probate where you feel that the personal representative is not qualified or should be removed, or you believe that your appointment as a personal representative in a Florida probate will be challenged, you should contact a Jacksonville Probate Lawyer to discuss your circumstances and options.