Executor Misconduct Attorney | Miami-Dade Probate

By Albert Goodwin, Esq., Law Offices of Albert Goodwin, PA — a Florida attorney handling probate litigation in the Miami-Dade Probate Division. Last reviewed: June 2025.

In Florida, the person appointed to administer a decedent's estate is called a personal representative—the legal equivalent of what most people call an executor. When a personal representative mismanages, delays, hides, or takes estate assets, Florida law gives beneficiaries powerful tools: removal, surcharge, forfeiture of fees, and in serious cases, referral for criminal prosecution.

This page is our overview guide to executor misconduct. It explains how the different types of misconduct fit together, how a misconduct case actually moves through the Probate Division of the Eleventh Judicial Circuit in Miami-Dade County, what evidence you need before you file, and what to expect on timing and fees. For a deep dive on any specific type of misconduct or remedy, follow the links below to our dedicated pages on each topic.

Quick Guide: Which Page Do You Need?

The executor is taking money or property from the estate → see executor stealing from an estate and inheritance theft
You want the executor removed and replaced → see removing a personal representative under F.S. § 733.504
The executor is ignoring the terms of the will → see executor not following the will
You have received no accounting, or an accounting that doesn't add up → see compelling an executor accounting and objecting to a contested accounting
You want to understand the legal standard the executor violated → see breach of fiduciary duty in Florida estates
You suspect forged documents or fraudulent transfers before death → see estate fraud

If you are not sure which situation applies—or several apply at once, which is common—keep reading. This page explains how these claims are combined and litigated in a single Miami-Dade probate case.

What Counts as Executor Misconduct Under Florida Law

A personal representative is a fiduciary. Under F.S. § 733.602, the personal representative must administer the estate using the same standards of care that apply to trustees—loyalty, prudence, impartiality among beneficiaries, and full transparency. Misconduct is any material departure from those duties. In practice, most Miami-Dade misconduct cases involve one or more of the following, often in combination:

Self-dealing — buying estate property below market value, hiring the executor's own company or relatives at inflated rates, or borrowing estate funds without court authorization. Self-dealing transactions are presumptively improper, and the burden shifts to the fiduciary to prove fairness. More on the legal standard: breach of fiduciary duty.
Theft or misappropriation — diverting estate funds or taking tangible property such as jewelry or art. This can also be a crime under F.S. § 812.014. Full discussion: executor stealing.
Failure to account — refusing to provide the accountings required by F.S. § 733.5036 and Florida Probate Rules 5.345–5.346, or filing accountings that are incomplete or misleading. See executor accountings.
Unreasonable delay and failure to distribute — dragging out administration to keep collecting fees or control assets after debts and expenses are resolved. Note that a personal representative generally cannot be compelled to distribute in the first five months of administration (F.S. § 733.801), so timing matters when evaluating a delay claim.
Commingling — mixing estate funds with personal funds. Commingling is itself a breach, regardless of whether you can prove a resulting loss.
Failure to protect assets — a recurring issue in Miami-Dade estates that hold real property: letting windstorm and flood insurance lapse on a Miami home or condo, ignoring HOA or condo assessments that accrue liens, or leaving a vacant property unsecured. In hurricane-exposed South Florida, an uninsured casualty loss can be the single largest item of surcharge liability in the case.

How an Executor Misconduct Case Proceeds in Miami-Dade

What our deep-dive pages do not cover is the local mechanics—how these cases actually move in Miami. Here is the process for an estate pending in Miami-Dade County:

Confirm where the estate is pending. Probate matters for decedents domiciled in Miami-Dade County are administered in the Probate Division of the Eleventh Judicial Circuit, with the court file maintained by the Miami-Dade Clerk of the Courts. The Probate Division sits at the Dade County Courthouse, 73 West Flagler Street, in downtown Miami. Each estate is assigned to a specific probate section and judge, and your misconduct petition is filed within the existing estate case, not as a new lawsuit.
Obtain the court file and letters. Before filing anything, we pull the docket: the will, the order admitting it, the letters appointing the personal representative, the inventory, and any accountings or fee filings. Gaps in the docket—such as a missing inventory, which is due within 60 days of issuance of letters under Florida Probate Rule 5.340—are often the first documented ground for relief.
Demand information first. A written demand for an inventory copy and interim accounting frequently resolves matters without litigation, and if refused, it strengthens your petition. Interested persons may compel accountings under F.S. § 733.5036.
File the petition through the statewide e-filing portal. All filings go through the Florida Courts E-Filing Portal into the existing probate case number. Depending on the relief sought, this may be a petition to compel an accounting, a petition for surcharge, and/or a petition for removal under F.S. § 733.504.
Understand that removal is an adversary proceeding. Under Florida Probate Rule 5.025, a petition to remove a personal representative or to surcharge is an adversary proceeding: it must be formally served, the Florida Rules of Civil Procedure apply, and both sides get full discovery—document requests, subpoenas to banks, and depositions. This is where misappropriation is usually proven, because Florida financial institutions must respond to subpoenas for the estate's account records.
Emergency relief where assets are at risk. If money is actively disappearing, the court can suspend the personal representative's powers, freeze accounts, or appoint a curator under F.S. § 733.501 to safeguard the estate while the removal petition is litigated. In the Eleventh Circuit, emergency probate matters are brought to the assigned section judge; be prepared to show concrete, documented risk, not just suspicion.
Hearing and ruling. Contested misconduct petitions are typically set for evidentiary hearing. If the court removes the fiduciary, it appoints a successor, and the removed personal representative must file a final accounting and turn over all estate property. Details on grounds and standards: personal representative removal.

Evidence You Need Before You File

Judges in the Probate Division see many disputes driven by family friction rather than proof. A misconduct petition should be built on documents. Before filing, we work with clients to assemble:

The will, letters, inventory, and all accountings filed in the estate
Estate bank and brokerage statements (obtained voluntarily or by subpoena in the adversary proceeding)
Deeds and closing statements for any estate real property sold—Miami-Dade property records and the Property Appraiser's valuations help show below-market insider sales
Written communications in which the personal representative refused information or made misrepresentations
Appraisals or comparable data showing what estate assets were actually worth
Invoices supporting (or contradicting) fees and expenses charged to the estate

Remedies: What You Can Actually Recover

Removal under F.S. § 733.504 for breach of duty, mismanagement, failure to comply with court orders, or where continued service would be detrimental to the estate (full removal guide)
Surcharge under F.S. § 733.609: a personal representative whose improper exercise of power damages the estate is personally liable for the resulting loss, and must disgorge any profit obtained through the breach
Forfeiture or reduction of fees: courts may cut or eliminate personal representative compensation when duties were not properly discharged
Attorneys' fees: in a successful breach-of-duty action, fees may be awarded and, significantly, the court may direct that they be paid from the fiduciary's own share or personal funds rather than from the estate (F.S. §§ 733.106, 733.609)
Criminal referral: theft from an estate can be prosecuted under F.S. § 812.014, and where elderly victims are involved, F.S. § 825.103 (exploitation of an elderly person) may apply; criminal charges in Miami-Dade are pursued by the State Attorney's Office for the Eleventh Judicial Circuit, and we can assist beneficiaries in making that referral alongside the civil case

Cost, Timing, and Practical Realities

Beneficiaries should go in with realistic expectations:

Timing. A petition to compel an accounting can often be heard within weeks. A contested removal or surcharge case, because it is an adversary proceeding with discovery, commonly takes several months to over a year depending on the section's calendar and the complexity of the financial record.
Fee exposure runs both ways. If your claims succeed, fee-shifting against the fiduciary personally is available. If claims are brought without a reasonable basis, the court can assess costs against the petitioner. This is why we insist on a documented case before filing.
Small losses may not justify litigation. Where the disputed amount is modest, a demand letter, a compelled accounting, or estate mediation may be the proportionate path.

Defending Personal Representatives Against Misconduct Claims

Not every accusation is valid. We also defend personal representatives—often a family member serving without professional experience—against overreaching claims. Common defenses include: the challenged transaction was authorized by the will or by court order; delay was caused by creditor claims, tax issues, or litigation outside the fiduciary's control; the accounting complies with Rule 5.346 standards; or the claimed "missing" assets were non-probate assets (such as accounts with beneficiary designations) that never belonged to the estate. Early, well-documented responses frequently end these disputes before an evidentiary hearing.

Frequently Asked Questions

Who can bring an executor misconduct claim in Florida?

Any "interested person"—typically a beneficiary named in the will, an intestate heir, or in some circumstances a creditor. Learn more about your standing on our beneficiary rights page.

Do I file a new lawsuit or file in the existing probate case?

Misconduct petitions are filed within the estate's existing probate case in the Miami-Dade Probate Division. Removal and surcharge petitions then proceed as adversary proceedings under Florida Probate Rule 5.025, with civil-style service and discovery.

Can the executor use estate money to pay lawyers to fight me?

Initially, often yes—defense of the fiduciary's conduct may be paid from the estate. But if the court finds a breach of fiduciary duty, it can order those fees repaid and assess your fees against the fiduciary personally under F.S. §§ 733.106 and 733.609.

The estate's main asset is a Miami house the executor is living in. Is that misconduct?

It can be. Personal use of estate property without paying fair rental value, letting insurance lapse, or blocking a sale that the will directs are all potential breaches. Related reading: can an executor sell property and Florida homestead inheritance rules—homestead status can change whether the property is even an estate asset the personal representative controls.

How long do I have to act?

Deadlines vary by claim and by what disclosures you received—objections to accountings, for example, have short deadlines once a formal accounting is served with the required notice. Waiting also lets assets disappear. If you suspect misconduct in a pending Miami-Dade estate, get advice promptly rather than waiting for the estate to close.

Talk to a Miami Executor Misconduct Attorney

The Law Offices of Albert Goodwin, PA represents beneficiaries, heirs, and personal representatives in estate litigation in the Miami-Dade Probate Division and throughout Florida. Whether you need to compel an accounting, remove and surcharge a fiduciary, or defend against unfounded allegations, we can evaluate the court file and the financial evidence and give you a candid assessment of your options.

Call 786-522-1411 or email [email protected] to schedule a consultation. Acting early—before assets are dissipated—is the single most important factor in recovering what the estate has lost.