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Florida Probate Statute 733.609: Improper Exercise of Power; Breach of Fiduciary Duty

When someone passes away in Florida, his (or her) estate must be managed, debts settled, and assets distributed. The individual responsible for these tasks is the personal representative who is appointed by the probate court. The personal representative is a fiduciary. As a fiduciary, the personal representative is in a position of trust and is responsible for holding and managing property that belongs to the beneficiaries. Thus, the fiduciary must carry on the activities related to managing the estate with a high level of care and with the best interests of the beneficiaries in mind. If the personal representative violates his (or her) duties as a fiduciary, he may face personal liability. To learn more about the duties of the personal representative, including the requirements of Florida Statutes, section 733.609- Improper exercise of power; breach of fiduciary duty, contact a skilled Fort Lauderdale estate administration attorney at the Law Offices of Stephen Bilkis & Associates.

Responsibilities of the Personal Representative

Identify assets of the estate. After receiving letters of administration, one of the first responsibilities of the personal representative is to identify and collect the assets of the estate. This includes any personal or real property owned by the decedent at death. This may include the family home, cars, clothing, bank accounts, furniture, appliances, jewelry, and collectibles. The personal representative must also determine the value of the assets in the estate as of the date of the decedent’s death. An inventory of the assets in the estate must be filed with the probate court.

Pay estate debts. As part of the administrative duties, the personal representative must give legal notice of the decedent’s death to known creditors. Creditors must file claims against the estate within a specified timeframe. The personal representative must pay all legitimate claims against the estate that are timely filed. If the personal representative fails to valid pay debts for which claims were timely filed, he may be personally liable if there are not funds available in the estate to pay the debts because of asset distribution to beneficiaries or heirs. If you have concerns about the validity of a claim, discuss your concerns with a Fort Lauderdale estate administration attorney.

Distribution of assets. Once all of the assets are collected and inventoried, and once all timely filed claims are satisfied, the personal representative must distribute the remaining assets consistent with the terms of the decedent’s will or Florida’s intestate succession laws.

Improper Exercise of Power; Breach of Fiduciary Duty

According to section 733.609 of the Florida Probate Code, Improper exercise of power; breach of fiduciary duty, a personal representative’s fiduciary duty is described as the same as the fiduciary duty of a trustee. If a personal representative breaches his duty, he is personally liable to the beneficiaries, heirs, creditors, or interested persons for damage or loss resulting from the breach.

Examples
  • Using assets for his personal advantage. The personal representative using money that belongs to the estate to pay his own personal debts. As an experienced estate administration lawyer in Fort Lauderdale will explain, a personal representative is required to account for all money spent during estate administration. Any discrepancies in the accounting will have to be explained.
  • The failure to pay debts and claims against the estate. The personal representative failing to pay estate debts that are valid and timely filed.
  • The failure to file and pay all necessary tax returns. Failure to file or pay tax return would result in fines and fees to the estate, thus reducing the overall value of the estate. A failure on the part of the personal representative to file or pay taxes would be a breach of fiduciary duty.
  • The failure to follow the directions in the will. The personal representative must follow the instructions in the will, if any. Likewise, the personal representative must follow orders of the court.
  • Providing inaccurate accountings. One of the responsibilities of the personal representative is to provide the court with an accounting. Providing misleading or inaccurate accounting is a breach of duty. The court will reject an accounting that it deems inaccurate. Interested parties such as beneficiaries have the right to object to accountings if there is a concern about accuracy.
Related Statutory Provisions
  1. Possession of estate: § 733.607, Fla. Stat.
  2. General power of the personal representative: § 733.608, Fla. Stat.
  3. Sale, encumbrance, or transaction involving conflict of interest: § 733.610, Fla. Stat.
  4. Persons dealing with the personal representative; protection: § 733.611, Fla. Stat.
  5. Transactions authorized for the personal representative; exceptions: § 733.612, Fla. Stat.
FL. Stat, Section 733.609- Improper Exercise of Power; Breach of Fiduciary Duty
  1. A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty. In all actions for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers, the court shall award taxable costs as in chancery actions, including attorney’s fees.
  2. When awarding taxable costs, including attorney’s fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.
  3. This section shall apply to all proceedings commenced hereunder after the effective date, without regard to the date of the decedent’s death.
Contact the Law Offices of Stephen Bilkis & Associates

The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing personal representatives, beneficiaries, heirs, and other parties in matters related to estate administration. If you have questions or concerns related to the duties and authority of a personal representative, including the application of Florida Probate Code, section 733.609- Improper exercise of power; breach of fiduciary duty, we can help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.

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