Just to recap:
- In cases where the decedent leaves a Last Will and Testament, the law’s first preference for the estate’s personal representative is the person nominated in the Will.
- If the decedent dies intestate, the surviving spouse is the first choice, followed by the person selected by the heirs, then the decedent’s nearest relatives.
Today I want to take a look at what happens when the wrong personal representative is named in the Will or has otherwise been appointed by the probate court.
Appointment of a Different Personal Representative
There are many situations in which an honest family member may disagree with the decedent’s choice of personal representative. While the Florida Probate Code ordinarily defers to that first choice, the probate court has the power to override the decedent’s apparent wish, even before the personal representative breaches his duty to the estate.
Even in cases where it is obvious one person is legally entitled to be the personal representative (for example, where a man dies intestate and his spouse survives him), the court may appoint a substitute personal representative, called a “curator.”
Curators can be appointed even before any wrongdoing occurs, and are allowed to take any action that a personal representative could take, and are entitled to reasonable compensation for their services based on the Probate Code’s schedule of personal representative fees.
Often more than one person is legally qualified to act as a personal representative. In such cases, the probate court may select the one it considers “best qualified.”
Removal of a Personal Representative
A personal representative owes a high duty to the estate he or she is charged with administering. If for any reason the personal representative abuses his or her authority, or becomes incapable of performing, the court can remove him or her and appoint a successor.
The Florida Probate Code lists 12 causes for removal. They are:
- Adjudication that the personal representative is incapacitated.
- Physical or mental incapacity rendering the personal representative incapable of performing his or her duties.
- Failure to comply with any order of the court, unless the order has been superseded on appeal.
- Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
- Wasting or maladministration of the estate.
- Failure to give bond or security for any purpose.
- Conviction of a felony.
- Insolvency of, or the appointment of a receiver or liquidator, any corporate personal representative.
- Except for surviving spouses, holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole.
- Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
- Removal of domicile from Florida (unless the domicile requirement does not apply).
- The personal representative would not now be entitled 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 removed, the removed personal representative must file a final accounting of his or her administration and surrender any assets of the estate in his or her possession to the new personal representative appointed by the court.