Previously, this blog has discussed those who are named personal representatives or executors of someone else's estate and the fiduciary duties he or she owes to the estate's beneficiaries. Meaning, a personal representative must behave loyally and in the best interests of the estate's beneficiaries. But what kind of behavior might be cause to head to probate court due to breach of the fiduciary duty? First, let's review where the fiduciary duty comes from. Florida Statute 733.609 provides that the duty of a personal representative is the same as that of the trustee of an express trust under the law. Thus, the fiduciary duty of a personal representative is a statutory one.
With that in mind, what might cause someone to file a suit in probate court against a personal representative for breach of this duty? Intentional embezzlement or stealing from the estate would be the most obvious complaint. However, there may be more subtle breaches that could be alleged. For example, improper or bad investments with the state's assets may be a breach of the duty.
Apparent self-dealing on the part of the personal representative may also be a problem. This might include the representative utilizing assets for personal use or giving 'sweetheart' deals to family or friends during the sale or rental of property contained within the estate.
Finally, though personal representatives can be paid for their services, there are guidelines regarding how much this compensation can be. A personal representative who is paying him or herself extravagantly may be in breach of his or her fiduciary duty.
It is important to note that the above list is not exhaustive, and there may be other actions that can cause probate litigation due to allegations of breach of fiduciary duty. Every situation is unique, and those with questions about being a personal representative or beneficiaries who suspect a personal representative may be in breach might wish to consider speaking with an experienced Florida estate attorney.
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