In Florida when someone dies a Personal Representative is named (in other states this is called an Executor) and that person is responsible for the bulk of the administration responsibilities. The Probate Courts will also establish an Estate, which holds that person’s real estate and personal property until the proper beneficiary can be determined under the law of the State. What’s important to remember as a potential beneficiary is that you have a right to sue if your interests are not maintained. Specifically, the Personal Representative owes a fiduciary duty to both the heirs and creditors of the estate.
- Personal Representatives usually do not have legal experience so the law requires that they be appointed a counsel in Florida.
- The Personal Representative is usually named in the will.
- From time to time there may be a need to replace the Personal Representative whether or not there was wrong doing.
- The replacement Personal Representative has an identical fiduciary duty and thus may have to sue the previous Representative if he / she was in breach of said duties.
What if the former Personal Representative does not have adequate assets to secure money from the judgment? According to the relatively new case of Bookman v. Davidson, the Personal Representative can sue the former Representative’s counsel for damages.
- · Deborah Irby died and Dana Ford was named as her estate’s personal representative. Dana Ford hired a lawyer to help her with the job. Time passed and Ford quit.
- · A man named Alan Bookman took over as the representative of the estate and began work on the task of settling the estate and getting all the property held by Irby to the rightful owner (and getting her debts paid, her taxes filed, etc.).
- · Alan Bookman discovered what he believed to be improprieties in the handling of the Deborah Irby Estate. He filed a formal lawsuit against both Dana Ford and her lawyer.
- · He sued Ford for the return to the estate of the fees she had been paid to act as its personal representative and he sued the lawyer for a return of the $195,000 that had been paid in legal fees.
- Bookman had no choice here. Under Florida law, an estate’s personal representative has the legal duty to act not only within “the best interests of the estate” but also in “the best interests of all interested parties, including creditors.”
- The lawyer objected to being sued for professional negligence, arguing that Florida law did not allow Bookman to sue him for malpractice regarding his work regarding the estate administration, only Ford could do so since it was Ford that hired him.
- ·The Florida First District Court of Appeals ruled otherwise. Pursuant to Florida Probate Code, sections 733.601-733.620, as the successor personal representative, Mr. Bookman did have “standing” to sue the lawyer who had provided advice and counsel regarding administration of the Deborah Irby Estate even though a different person, Dana Ford, was the estate’s representative at the time.
The important thing to remember is this: the fiduciary duty of a personal representative of an estate in Florida is important and it comes with potential personal liability. The powers, duties, and obligations of that personal representative are many, and they extend to the representative himself (or herself) as well as to beneficiaries, creditors, contractors, accountants, and attorneys. When one person replaces another in the role of personal representative of a Florida Estate, all the powers as well as the duties and obligations are passed like a baton to the successor.
[Read the full opinion: Bookman v. Davidson, — So.3d — ,(Fla. 1st DCA May 05, 2014)]