Removal of Executor
Removal of Florida Estate Executor
What do you do if you are an estate beneficiary, and the executor, or personal representative, is not doing a good job? What if you are the spouse, or widow, or an estate creditor, and the personal representative is favoring everybody else to your detriment? You get your Florida probate litigation law firm on speed dial, and talk about filing a petition to remove the personal representative in probate court.
An executor (in Florida, a personal representative) can be removed from continuing to administer the Florida probate for a handful of reasons, once appointed, as set out in Fla. Stat. §733.504. Hostility or simply not getting along with the beneficiaries is not enough to be cause for removal. In Palm Beach, Stuart, Florida and also Ft. Lauderdale, probate attorneys who appeal their cases go to the 4th District Court of Appeal, which hears trust, estate and guardianship appeals. Florida’s Fourth District Court of Appeal, stated simply:
“The removal of a personal representative chosen by the deceased is a drastic action and should only be resorted to when the administration of the estate is endangered. The mere fact that a certain hostility has arisen between a beneficiary and the executor absent some showing of wrongdoing on the part of the executor or other factors which will prejudice the administration does not warrant such drastic action as removal.”
Estate of Murphy, 336 So. 2d 697, 699 (Fla. 4th DCA 1976) (internal and all citations omitted). See also Rand v. Giller, 489 So. 2d 796, 799 n. 8 (Fla. 1986).
So, how can I get a personal representative removed by the probate court? One example of this drastic measure which would be cause for removal would be if a personal representative is adjudicated incapacitated or has a physical or mental capacity which renders the personal representative unable to perform their duties. Another example which would be cause for removal would be the failure to comply with a court order or failure to account for the property or assets of the estate.
One issue raised as a basis for removal, which is often litigated about, is a claim that a personal representative is wasting or maladministering the estate. Importantly, according to experienced probate litigators and the Palm Beach appeals court, actual mismanagement must be demonstrated. The Fourth District Court of Appeal’s opinion in Gresham v. Strickland, 784 So. 2d 578, 582 (Fla. 4th DCA 2001) stated in pertinent part that there is no authority to support that “disagreements over litigation are grounds for removal of a personal representative.”
What if the executor is engaging in acts of self dealing or has a conflict of interest? Also, a conflict may not disqualify a named personal representative from serving, but can be cause for removal. Fla. Stat. §733.504(9).
Furthermore, any removal proceeding requires an evidentiary hearing in order to comply with the fundamentals of due process. Blechman v. Dely, 138 So.3d 1110, 1114-5 (Fla. 4th DCA 2014). “Because the removal was ordered without notice or an evidentiary hearing, it did not comply with the requirements of due process.” Id. (citation omitted). In that case, the trial court removed a personal representative after an oral request was made to the court at a hearing, and the trial court’s decision was reversed. Id.
