Executor Misconduct in Miami, Florida

In Florida, the person appointed to administer a decedent's estate is called a personal representative—the legal equivalent of what many people refer to as an executor. When a personal representative engages in misconduct during the administration of an estate, it can cause devastating financial harm to the beneficiaries and heirs who depend on the faithful management and distribution of estate assets. Florida law provides meaningful remedies to hold a personal representative accountable for misconduct, including the power to remove the fiduciary and compel repayment of losses.

At the Law Offices of Albert Goodwin, PA, we represent beneficiaries and heirs throughout Florida who have been harmed by personal representative misconduct. We also defend personal representatives against allegations of wrongdoing when those claims are unfounded.

What Constitutes Executor Misconduct in Florida?

A personal representative is a fiduciary under Florida law. Under F.S. § 733.602, a personal representative must observe the standards of care applicable to trustees, meaning they owe the highest standard of loyalty, care, and good faith to the estate beneficiaries. Misconduct occurs whenever the personal representative violates these fiduciary obligations. The following are the most common forms of personal representative misconduct in Florida estates.

Self-Dealing

Self-dealing is among the most serious forms of executor misconduct. It occurs when the personal representative uses their position to benefit themselves at the expense of the estate or its beneficiaries. Examples of self-dealing include:

Purchasing estate property for themselves at below-market value
Hiring their own business or family members to perform services for the estate at inflated prices
Directing estate business opportunities to entities they own or control
Using estate funds to pay personal expenses
Borrowing money from the estate without court authorization

Under Florida law, self-dealing transactions are presumed to be a breach of fiduciary duty. The personal representative bears the burden of proving that any self-dealing transaction was fair and in the best interests of the estate. Courts in Florida take self-dealing extremely seriously, and a personal representative who engages in self-dealing faces surcharge liability, removal from office, and potential criminal prosecution.

Theft and Misappropriation of Estate Assets

Outright theft of estate assets is a particularly egregious form of misconduct. This can range from diverting estate funds into the personal representative's own accounts to taking physical property such as jewelry, artwork, or other valuables. Under F.S. § 812.014, theft of estate assets may constitute a criminal offense, with penalties ranging from misdemeanor to first-degree felony depending on the value of the property stolen. For more information about executor stealing from an estate, see our dedicated page on that topic.

Unreasonable Delay in Administration

A personal representative has a duty to administer the estate promptly and efficiently. Under F.S. § 733.901, the personal representative must distribute the estate as promptly as is consistent with the best interests of the estate. Deliberately or negligently prolonging the administration—for example, to continue collecting personal representative fees, to maintain control over estate assets, or simply through inaction—is a form of misconduct. Prolonged administration can cause significant harm to beneficiaries who are waiting for their inheritances, particularly when estate assets lose value due to market changes, maintenance costs, or deterioration.

Failure to Distribute Estate Assets

After debts, taxes, and expenses have been paid, the personal representative is obligated to distribute the remaining assets to the beneficiaries named in the will or, in the case of intestacy, to the heirs determined under F.S. § 732.101–732.111. A personal representative who refuses or unreasonably delays distribution after the estate is ready for distribution is committing misconduct. Beneficiaries may petition the court to compel distribution under F.S. § 733.816.

Failure to Account

Florida law requires the personal representative to provide accountings to interested persons. Under F.S. § 733.5036, any interested person may compel an accounting. A personal representative who refuses to account or who provides incomplete, misleading, or fraudulent accountings is engaging in misconduct. The failure to account is itself a breach of fiduciary duty, even if the underlying management of the estate was proper, because beneficiaries are entitled to transparency in the administration of the estate.

Commingling Estate and Personal Funds

A personal representative must keep estate assets separate from their personal assets at all times. Depositing estate funds into a personal bank account, or otherwise mixing estate property with personal property, is known as commingling. This is a per se breach of fiduciary duty in Florida, meaning the beneficiary does not need to prove actual harm—the act of commingling itself constitutes misconduct.

Failure to Protect Estate Assets

The personal representative has a duty to marshal, protect, and preserve estate assets during the administration. This includes maintaining adequate insurance on real property, securing personal property, collecting debts owed to the estate, and preventing waste or deterioration. A personal representative who allows estate assets to be damaged, lost, or diminished in value through neglect or inaction is breaching their fiduciary duty.

Remedies for Executor Misconduct Under the Florida Probate Code

Florida provides a range of remedies for beneficiaries and heirs who have been harmed by personal representative misconduct.

Petition for Removal Under F.S. § 733.504

One of the most powerful remedies available is the removal of the personal representative. Under F.S. § 733.504, an interested person may petition the court to remove a personal representative on any of the following grounds:

The personal representative was not qualified to serve at the time of appointment
The personal representative has become incapable of discharging their duties
The personal representative has failed to comply with a court order
The personal representative has breached their fiduciary duty
The personal representative has mismanaged the estate
The personal representative has failed to perform any duty imposed by Florida law
Continued service by the personal representative would be detrimental to the estate or its beneficiaries

When a personal representative is removed, the court will appoint a successor personal representative to take over the administration. The removed personal representative must file a final accounting and surrender all estate assets to the successor. For more detailed information about the removal process, see our page on personal representative removal.

Surcharge

A surcharge is a monetary remedy in which the personal representative is ordered to pay from their own personal funds the amount necessary to restore the estate to the position it would have been in had the misconduct not occurred. Under F.S. § 733.609, a personal representative who has improper exercised their power is liable for any loss or depreciation in value of the estate assets and for any profit the personal representative made through the improper exercise of power.

Disgorgement of Compensation

A personal representative who engages in misconduct may be required to forfeit some or all of the compensation they received for administering the estate. Florida courts have broad discretion to reduce or eliminate personal representative fees when the fiduciary has not properly discharged their duties.

Attorneys' Fees and Costs

The court may award attorneys' fees and costs to beneficiaries who successfully bring claims against a personal representative for misconduct. These fees may be charged directly to the personal representative personally, rather than to the estate, as a further consequence of the misconduct.

Injunctive Relief

In situations where estate assets are at immediate risk, beneficiaries may seek emergency injunctive relief from the court. This may include orders freezing estate accounts, prohibiting the sale or transfer of estate assets, or requiring the personal representative to take specific protective measures.

Criminal Prosecution

In cases involving theft or fraud, personal representative misconduct may rise to the level of criminal conduct. Florida's theft statutes under F.S. § 812.014 apply to personal representatives who steal from an estate. Additionally, F.S. § 825.103, which addresses exploitation of elderly or disabled adults, may apply when the decedent was elderly or the victims of the misconduct are elderly or disabled beneficiaries. Criminal prosecution is handled by the State Attorney's office, but a civil attorney can assist in reporting the misconduct and coordinating with law enforcement.

How to File a Petition for Removal of a Personal Representative

To remove a personal representative in Florida, an interested person must file a petition with the probate court that has jurisdiction over the estate. The petition must set forth the specific grounds for removal and be supported by factual allegations demonstrating the personal representative's misconduct. The process generally involves the following steps:

Gather evidence – Before filing, compile documentation of the misconduct, including bank statements, accountings, correspondence, and any other evidence showing the personal representative's wrongdoing.
File the petition – The petition for removal is filed with the probate court. Under F.S. § 733.504, the petition must identify the grounds for removal and provide supporting facts.
Serve the personal representative – The personal representative must be given proper notice and an opportunity to respond to the petition.
Hearing – The court will schedule a hearing at which both sides may present evidence and testimony. The petitioner bears the burden of proving the grounds for removal.
Court order – If the court finds that removal is warranted, it will enter an order removing the personal representative and appointing a successor.

In emergency situations, the court may enter an interim order suspending the personal representative's powers or appointing a curator to protect estate assets while the removal petition is pending.

Warning Signs of Executor Misconduct

Beneficiaries should be vigilant for warning signs that a personal representative may be engaging in misconduct. These warning signs include:

Refusal to communicate with beneficiaries or provide information about the estate
Failure to file accountings or providing vague, incomplete accountings
Unexplained decreases in estate asset values
Excessive fees or expenses charged to the estate
Prolonged administration without apparent justification
The personal representative's lifestyle improving noticeably after being appointed
Assets going missing or being transferred without explanation
The personal representative using estate property for personal purposes

If you observe any of these warning signs, it is important to act promptly. Delay can result in additional losses to the estate and may make it more difficult to recover misappropriated assets.

Contact a Florida Executor Misconduct Attorney

At the Law Offices of Albert Goodwin, PA, we have extensive experience handling personal representative misconduct cases throughout Florida. Whether you need to petition for the removal of a personal representative, seek a surcharge for losses caused by misconduct, or defend against unfounded allegations, we are prepared to protect your rights and interests.

Call us at 786-522-1411 or email us at [email protected] to schedule a consultation. Do not allow a personal representative's misconduct to deplete the estate—contact us today to discuss your legal options.