Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

Text Size: A A A

Category Archives: Removal of Personal Representatives and Surcharge

Subscribe to Removal of Personal Representatives and Surcharge RSS Feed

Florida must recognize gay widower’s Delaware marriage for purposes of appointing the non-resident personal representative of his ancillary estate, Palm Beach probate judge rules

Posted in Marital Agreements and Spousal Rights, Removal of Personal Representatives and Surcharge
Estate of Bangor, Case No. 502014CP001857 (Fla. 15th Cir, Palm Beach, August 5, 2014) Florida law says you can’t appoint a non-resident to serve as personal representative of your estate unless that person’s your “spouse” or otherwise related to you. (See F.S. 733.304). This rule’s always struck me as an arbitrary trap for the unwary … Continue Reading

3d DCA/2d DCA: Are evidentiary hearings required when removing a PR or refusing to appoint a PR with statutory priority?

Posted in Removal of Personal Representatives and Surcharge
Who serves as personal representative (PR) of an estate can have huge real-world consequences. For example, under F.S. 768.20 only the PR has standing to bring a wrongful death suit on behalf of the estate and the survivors [click here]. Also, in contested probate proceedings, the PR is presumed to have direct and confidential access to all of the decedent’s … Continue Reading

3d DCA: Is a PR entitled to due process prior to being removed by court order?

Posted in Removal of Personal Representatives and Surcharge
 LoCascio v. Estate of LoCascio, — So.3d —-, 2011 WL 2555644 (Fla. 3d DCA June 29, 2011) Silvia Locascio’s brutally beaten corpse was found in her home on October 30, 2001. Eventually her husband and brother-in-law were found guilty of her murder – based in large part on the testimony of the couple’s only son. Click … Continue Reading

FL Supreme Court sides with 1st DCA in conflict with 3d DCA: 3-month statue of limitations found in F.S. 733.212(3) applies to PR disqualification motions

Posted in Removal of Personal Representatives and Surcharge
Hill v. Davis, — So.3d —-, 2011 WL 3847252 (Fla. Sep 01, 2011) I previously wrote here about the split between the 1st DCA and the 3d DCA regarding whether the 3-month statute of limitations period contained in F.S. 733.212(3) applies to personal-representative disqualification motions. The statute provides as follows: (3) Any interested person on whom a … Continue Reading

2d DCA: Is a court-appointed guardian of the property necessary to exercise a minor’s vote in the appointment of a PR?

Posted in Contested Guardianship Proceedings, Removal of Personal Representatives and Surcharge
Long v. Willis, — So.3d —-, 2011 WL 3587411 (Fla. 2d DCA Aug 17, 2011) Most people (including most lawyers) assume that a minor’s parents, i.e., a minor’s “natural guardians” under F.S. 744.301, can make all decisions on behalf of their children, and that this authority extends to voting on behalf of their children under … Continue Reading

Another probate court gets reversed for failing to appoint the statutorily preferred personal representative

Posted in Removal of Personal Representatives and Surcharge
Stalley v. Williford, — So.3d —-, 2010 WL 4967982 (Fla. 2 Dist. Dec 08, 2010) Probate courts can get reversed for refusing to appoint as personal representative (PR) the person with preference under F.S. 733.301. Don’t get me wrong, probate courts do have the inherent authority to override this statute, but only if there are … Continue Reading

1st DCA certifies conflict with 3d DCA: 3-month statue of limiations applies to PR disqualification motions

Posted in Removal of Personal Representatives and Surcharge
Hill v. Davis, — So.3d —-, 2010 WL 1347314 (Fla. 1st DCA March 31, 2010) In civil litigation you usually have years to file your complaint: most statue of limitations periods fall within a range of 2 to 6 years. Not surprisingly, most civil litigators assume the same rules apply to probate litigation. Big mistake! … Continue Reading

Bankr.M.D.Fla: Probate judgment against former PR not dischargeable in bankruptcy

Posted in Removal of Personal Representatives and Surcharge
In re Kurzon, 399 B.R. 274 (Bankr.M.D.Fla. Apr 17, 2008) When it comes to enforcing money judgments: bankruptcy is the last refuge of a scoundrel. But if the particular scoundrel you’re trying to track down is a former personal representative who’s been surcharged by your probate judge, you can tell him to wipe that smirk … Continue Reading

Another probate judge gets reversed for failing to appoint the testator’s nominated PR

Posted in Removal of Personal Representatives and Surcharge
McCormick v. McCormick, — So.2d —-, 2008 WL 4377136 (Fla. 1st DCA Sep 29, 2008) Florida probate judges are given a great deal of latitude when making calls on how an estate should be administered.  But there’s one estate-administration issue over which their authority is severely limited: whether or not to appoint the personal representative … Continue Reading

‘Vexatious’ Attorney Conduct Results in Removal of Executor

Posted in Removal of Personal Representatives and Surcharge
The statute governing removal of personal representatives ("PR") in Florida is 733.504.  Acrimony – no matter how heated – is usually NOT sufficient to warrant removal of a PR [click here for recent example].  However, the outcome may be different if you can establish a detailed factual record proving that the acrimony is such that a significant … Continue Reading

“Thin-slicing” trusts and estates malpractice claims

Posted in Musings on the Practice of Law, Removal of Personal Representatives and Surcharge
I previously wrote here about a $71 million jury verdict entered against a large Texas firm for estate planning malpractice even though this same jury found that the client had suffered zero economic damages; and here about a $1.2 million jury verdict against a large Florida firm for estate planning malpractice even though the plaintiff in that case … Continue Reading

4th DCA: Can you sue a personal representative 41 years after he was appointed?

Posted in Removal of Personal Representatives and Surcharge
BLOG POST UPDATE: SUBSTITUTE OPINION PUBLISHED Kravitz v. Levy, — So.2d —-, 2008 WL 441403 (Fla. 4th DCA Feb 20, 2008) We deny appellees’ motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place. A beneficiary of an estate appeals a final summary judgment in favor of the estate of the deceased … Continue Reading

Probate court gets reversed for failing to appoint the statutorily preferred personal representative

Posted in Removal of Personal Representatives and Surcharge
Garcia v. Morrow, — So.2d —-, 2007 WL 983053 (Fla. 3d DCA Apr 04, 2007) I’ve written recently about probate courts being reversed for failing to appoint the personal representative named in a decedent’s will (see here and here).  This opinion picks up on the themes outlined in those cases . . . but in … Continue Reading

Another probate court gets reversed for failing to appoint the testator’s designated personal representative

Posted in Removal of Personal Representatives and Surcharge
Hernandez v. Hernandez, 2007 WL 120051 (Fla. 5th DCA Jan 19, 2007) It was only about a month ago that I wrote here about the reversal of a probate court’s refusal to appoint the person designated in a will to serve as personal representative.  In the linked-to case we again have a probate court being reversed for … Continue Reading

Does a conflict of interest disqualify a personal representative from being appointed in the first place?

Posted in Removal of Personal Representatives and Surcharge
Werner v. Estate of McCloskey, 2006 WL 3613178 (Fla. 1st DCA Dec 13, 2006) This case underscores the importance Florida law gives to a person’s choice of personal representative in his or her will.  It also proves that just because you may think there are grounds to remove a serving personal representative, it doesn’t mean … Continue Reading

You Can’t Throw a Person in Jail for Failing to Comply with an Impossible Order

Posted in Removal of Personal Representatives and Surcharge
Jensen v. Estate of Gambidilla, 30 Fla. L. Weekly D578 (Fla. 4 DCA March 2, 2005) (TRIAL COURT REVERSED) St. Lucie County Circuit Court Judge Marc A. Cianca entered a civil contempt order requiring an estate’s former personal representative to be incarcerated until she returned certain items of personal property to the estate. The Fourth … Continue Reading

Petitions to Remove a Personal Representative Are Not Subject to the Three-months Statute of Limitations Period Found in F.S. Section 733.212

Posted in Removal of Personal Representatives and Surcharge
Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA Feb. 11, 2004) Fifteen months after the court signed letters of administration appointing Henry Pass, a non-resident attorney, as co-personal representative of the decedent’s estate, the decedent’s daughter, Adriaan Angelus, filed a petition seeking to remove him as personal representative. Pass had initially filed a petition … Continue Reading