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Suing an Executor

Suing the Executor of a Florida Probate — Will Litigation Involving the Personal Representative

Under Florida law, the executor of a decedent’s estate is known as the personal representative. The personal representative is the legal representative of the estate, and is issued letters of administration which empower the individual to act on behalf of the estate.

The personal representative may be nominated by a will, or in the absence of a will (intestacy) preference is given to the surviving spouse followed by the person selected by a majority in interest of the heirs followed by the heir nearest in degree. F.S. 733.301. The individual entitled to preference must be appointed unless the court finds that individual otherwise disqualified. Stalley v. Williford, 50 So. 3d 680 (Fla. 2d DCA 2010); but see Long v. Willis, 100 So. 3d 4 (Fla. 2d DCA 2011) (holding that although the probate court almost always appoints as personal representative the person entitled to statutory preference, in exceptional circumstances where the heirs are essentially members of two distinct families with adverse interests, the court has the discretion to refuse to make the appointment if the record supports the conclusion that the person with statutory preference lacks the necessary qualities and characteristics).

Once the personal representative is granted the authority by letters of administration, he or she can be sued in that capacity. There are many reasons that one may bring suit against a personal representative, which include claims by creditors (if a statement of claim filed in an estate is denied then a creditor has a 30 days window to file an independent action), claims by beneficiaries for breach of fiduciary duties by the personal representative, improper administration of the estate (failure to make timely distributions to beneficiaries, improper retention of professionals), and improper compensation of the personal representative and/or his or her attorney (a personal representative in Florida must be represented by a member of the Florida Bar unless he or she is a member of the Florida Bar or the sole interested person in the estate, see Fla. Prob. R. 5.030).

In the event you have a question regarding bringing suit against either a decedent’s estate via a creditor claim, or you are a beneficiary concerned about the administration of a decedent’s estate by the personal representative (executor), a consultation with a Florida probate litigation firm would be time well spent to answer and address your questions and concerns.

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