Removing a Personal Representative

What happens when the personal representative of an estate is not performing his or her duties or is not acting in the best interest of the estate? The Florida Probate Code lists causes for removal of a Personal representative. In addition to a physical or mental incapacity that would prevent a personal representative from performing his or her duties, the following are other circumstances and conditions under which the pesonal representative of an estate may be validly removed:

Failure 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 of 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; or
If the personal representative would not now be entitle to appointment.

Any interested person may petition for the removal of a personal representative. The petition must allege an interest and facts comprising a statutory ground for removal. Fla. Prob. R. 5.440. Furthermore, the removal of a personal representative appointed by a decedent is a last resort. See In re Estate of Murphy’s, 336 So.2d 697 (Fla. 4th DCA 1976).

The personal representative may be surcharged if there is actual loss to the estate. Any interested person has standing to bring the claim. Florida Statute Section 733.609 makes the personal representative liable to interested parties for damages that result from a breach of the personal representative’s fiduciary duties. Further, Florida Statute Section 733.619(4) says that issues of liability can be determined in a proceeding for surcharge. It is well settled law that a personal representative is a fiduciary and is bound by the standard of care of trustees. Thus, failure to file actions to recover property against the estate is a basis for surcharge. See Ziering v. Berger, 209 So.2d 681 (Fla. 3d DCA 1968).

In addition to surcharge, a suit for unjust enrichment can be brought if the personal representative is benefiting at the expense of the estate. The elements of unjust enrichment are as follows: (1) the plaintiff has conferred a benefit on defendant and defendant has knowledge thereof; (2) the defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for defendant to retain the benefit without paying the value thereof to the plaintiff. Hillman Const. Corp. v. Wainer, 636 So. 2d 576 (Fla. 4th DCA 1994); see also Merkle v. Health Options, Inc., 940 So. 2d 1190, 1199 (Fla. 4th DCA 2006); American Safety Ins. Service, Inc. v. Griggs, 959 So. 2d 322 (Fla. 5th DCA 2007). Unjust enrichment is based on legal fiction of contract implied in law, where none exists in fact. See Doug Hambel’s Plumbing, Inc. v. Conway, 831 So. 2d 704 (Fla. 4th DCA 2002). The court may find such from facts even though theory is not pleaded as such. Unjust enrichment requires proof that money was paid due to fraud, misrepresentation, imposition, duress, undue influence, mistake, or other grounds in equity. Hall v. Humana Hosp. Daytona Beach, 686 So. 2d 653 (Fla. 5th DCA 1996). “An action for ‘unjust enrichment’ exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity.” Golden v. Woodward, 15 So. 3d 664, 670 (Fla. Dist. Ct. App. 2009)(quoting Henry M. Butler, Inc. v. Trizec Prop., Inc., 524 So.2d 710, 711 (Fla. 2d DCA 1988)). Disgorgement is a remedy for unjust enrichment.

If you or someone you know needs the personal representative of an estate removed for maladministration or other statutorily defined reasons, the lawyers at Chepenik Trushin LLP can help.