The probate process leans a great deal upon the competence and impartiality of the estate’s personal representative. As such, it is important that if a personal representative is incompetent or clearly biased, they can be replaced with someone who will do a better job.
Who is the Personal Representative in Florida Probate?
After someone dies, a Florida court appoints a personal representative to oversee debt payments and asset distribution of the decedent’s estate. Typically, the personal representative is named in the decedent’s will or is a surviving spouse. However, there can be circumstances in which the personal representative stands to “endanger” the decedent’s estate during the probate process.
Also, nominated personal representatives may decline the role or simply be physically or mentally incapable of assuming the role. For these reasons and more, the state of Florida has a process in place for removing and replacing a personal representative in probate court.
What is the Difference Between a Personal Representative and an Executor?
The term “personal representative” is the name of someone who is the executor or administrator of the decedent’s estate. These terms are often interchangeable, but technically-speaking, the executor is named in the decedent’s will as the personal representative.
In contrast, Florida probate courts assign an administer as the personal representative if the decedent failed to leave a will. Usually, the courts will assign the surviving spouse as the administrator. If there is no surviving spouse, the court will work through a list of responsible parties (usually family members) in order to find a capable personal representative of the estate.
The Role of Trustees in Probate
If the decedent placed assets in a living or revocable trust before their death, there is typically a trustee that administers the distribution of those assets. Assets left in a trust do not pass through the probate process with the rest of the estate.
Removing a Personal Representative
It is not easy to remove a personal representative, particularly if the current personal representative denies their inability to handle administrative duties. However, any person who has an interest in the estate may file a petition to remove the personal representative.
Filing a petition to remove a personal representative during Florida probate is essentially its own lawsuit within the probate process. As with any lawsuit, those accusing the personal representative of endangering the estate must show adequate proof that the personal representative has been a “maladministrator” of the estate. In other words, there must be clear evidence that the personal representative made serious errors in the administration of their duties and the estate.
For example, if beneficiaries are at odds, the personal representative may be favoring certain beneficiaries over others. Or, the personal representative may have allowed tasks to fall through the cracks to the degree that some of the estate was lost as a result of their incompetence.
Another reasonable basis for removing a personal representative is if a will is discovered to be illegitimate, such as in the case of undue influence. The courts will replace the personal representative with the personal representative named in the legitimate will instead.
When a personal representative is removed from their post, they are court-ordered to provide a full record of their activities to the new personal representative. Additionally, they must hand over whatever remains of the estate so that it can be properly distributed by the new personal representative. If the maladministrator cost the estate (and by extension, the beneficiaries) money as a result of their incompetence, then in many cases, the court requires damages to be paid by the maladministrator.
What is Undue Influence?
In some unfortunate cases, beneficiaries suspect and discover undue influence. Undue influence occurs if someone coerced the decedent before their death to alter the will in a way that stands to benefit the coercive individual. Undue influence is a serious accusation that must be accompanied by significant evidence.
Often, a person who is vulnerable to undue influence is physically or mentally unable to stand up for themselves in a manipulative or abusive relationship with a relative or caregiver. The person accused or found to be guilty of undue influence usually isolated the decedent (before death) and exercised control over their bank accounts and other assets.
Beneficiaries discover undue influence when the contents of the will come as a surprise, and they appear to be inexplicably marginalized in favor of someone that exercised excessive control over the decedent before their death. As with a petition to remove a personal representative, the process of proving undue influence is its own lawsuit within the probate process. Naturally, if the will is proven to be the product of undue influence, Florida probate courts will dismiss the will and adhere to the previous will, including assigning a new personal representative if the previous will named a different executor than who was named in the tainted will.
For more information about how a South Florida probate attorney can help you with your case, contact Balkan and Patterson at 561-750-9191 or visit our website.