Florida Probate Statute 733.309: Executor De Son Tort
A personal representative, sometimes referred to as an executor or estate administrator, is a person who is appointed by the Probate Division of the Circuit Court in Florida to manage the estate of a decedent. While it is common for a testator to name in his (or her) will the person that he wishes to serve as personal representative, anyone who wishes to serve as a personal representative must be formally appointed by the court before the person has legal authority to action on behalf of an estate. If someone holds themselves out to be a duly appointed personal representative without actually being appointed by the court, that person will be liable for his actions. If you would like to learn more about the process of being appointed a personal representative, as well as the requirements of Florida Statutes, section 733.309- Executor de son tort, contact an experienced Fort Lauderdale estate administration lawyer at the Law Offices of Stephen Bilkis & Associates.Becoming a Personal Representative
To become a personal representative of an estate in Florida, you must submit an application to the probate court that has jurisdiction over the estate. The court will consider your application along with any others. The judge will determine if you are qualified. According to the Florida Probate Code, in order to be eligible to become a personal representative you must be a resident of Florida, you must be at least 18 years old, you must not be a convicted felon, and you must not suffer from a mental incapacity that would render you unable to perform the duties of the job.
Even if you are qualified, the judge may not grant your petition if someone else applies who is higher on the priority list. If the decedent left a will, the first on the preference list for being appointed personal representative is person the decedent named in his or her will to server as hi personal representative or successor. The next on the list is the person selected by a majority in interest of the persons entitled to the estate. Finally, the court will select a devisee under the will. If more than one applies, the court will select the one it deems most qualified.
As a Fort Lauderdale estate administration attorney will explain, if the decedent did not leave a will, the first on the preference list is the decedent’s surviving spouse. If the decedent did not have surviving spouse, or the surviving spouse is not qualified or will to serve, then the next in line would be the person selected by a majority in interest of the heirs. After that, it would be the heir nearest in degree. If more than one applies, the court will select the one it deems most qualified.Executor de son Tort
An executor de son tort is a person who presumes to act on behalf of an estate but without the legal authority. That does not mean that an executor de son tort are always illegal, subjecting him to legal liability. Under Florida Statutes, section 733.309- Executor de son tort, an executor de son tort is only liable to a duly appointed personal representative if the actions of the executor de son tort were for his personal benefit or if the estate was deprived of the property.Example
Roger was appointed as personal representative of Henry’s estate. Henry owned a house that he rented to tenants. When Henry died, Jerry, Henry’s nephew, collected the rent from the tenants and used the money to repair the property, and pay bills related to the property. In this case Jerry was acting as an executor de son tort. However, as an experienced Fort Lauderdale estate administration attorney will explain, Jerry would not be liable to Roger under Florida Statutes, section 733.309. Although Jerry did collect rent that should have been collected by the personal representative, Jerry did not pocket the money. Instead he used to maintain the rental property.Related Statutory Provisions
- Who may be appointed personal representative : § 733.302, Fla. Stat.
- Persons not qualified: § 733.303, Fla. Stat.
- Administrator ad litem: § 733.308, Fla. Stat.
- Personal representative not qualified : § 733.3101, Fla. Stat.
No person shall be liable to a creditor of a decedent as executor de son tort, but any person taking, converting, or intermeddling with the property of a decedent shall be liable to the personal representative or curator, when appointed, for the value of all the property so taken or converted and for all damages to the estate caused by the wrongful action. This section shall not be construed to prevent a creditor of a decedent from suing anyone in possession of property fraudulently conveyed by the decedent to set aside the fraudulent conveyance.Contact the Law Offices of Stephen Bilkis & Associates
If you have concerns over the actions of an executor de son tort, discuss your concerns with an experienced estate administration attorney serving Fort Lauderdale. The attorneys at the Law Offices of Stephen Bilkis & Associates have over two decades of experience representing clients in matters related to probate procedure and estate administration, and understand the requirements of Florida Statutes, section 733.309- Executor de son tort. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.