Executor Not Following the Will in Miami, Florida

When a person creates a will, they expect their wishes to be carried out after death. The personal representative (commonly called the executor) is appointed by the court to administer the estate in accordance with the terms of the will and the requirements of the Florida Probate Code. Unfortunately, personal representatives do not always follow the will. Whether through negligence, misunderstanding, or deliberate misconduct, deviations from the will can cause significant harm to beneficiaries. The Law Offices of Albert Goodwin, PA represents beneficiaries throughout Florida who need to hold personal representatives accountable when they fail to follow the decedent's wishes.

The Personal Representative's Duty to Follow the Will

A personal representative's authority derives from the will and from the probate court's order of appointment. Under F.S. § 733.602, the personal representative has a duty to settle and distribute the estate in accordance with the terms of the will and the Florida Probate Code as expeditiously and efficiently as is consistent with the best interests of the estate. This duty is both a legal obligation and a fiduciary one. The personal representative is not free to substitute their own judgment for the clearly expressed intentions of the testator.

The will is a legally binding document. When it is admitted to probate by the court, it becomes the governing instrument for the administration. The personal representative must identify the beneficiaries named in the will, determine the specific devises and bequests made in the will, and distribute the estate assets accordingly. Deviating from these directions without legal justification is a breach of fiduciary duty.

Common Ways Personal Representatives Deviate From the Will

In our experience representing beneficiaries in Florida probate matters, we see several recurring patterns of personal representatives failing to follow the will:

Refusing or Delaying Distributions

One of the most common complaints from beneficiaries is that the personal representative is refusing to make distributions or is unreasonably delaying them. While a personal representative is not required to distribute assets immediately—they must first pay debts, expenses, and taxes—an indefinite refusal to distribute assets after all obligations have been satisfied is a violation of the personal representative's duties. Under F.S. § 733.801, the personal representative must distribute the estate to the persons entitled to it within a reasonable time after the estate is ready for distribution.

Distributing Assets to the Wrong People

A personal representative who distributes estate assets to individuals not named in the will, or who gives a beneficiary more or less than what the will provides, is directly violating the terms of the will. This includes situations where the personal representative distributes assets to themselves beyond what the will authorizes, gives favored family members additional property, or excludes a named beneficiary from receiving their share.

Selling Specifically Devised Property

When a will specifically devises a particular asset to a named beneficiary—such as a family home, a piece of jewelry, or a particular bank account—the personal representative must preserve that asset for the intended beneficiary whenever possible. Under F.S. § 733.805, the order of abatement (the order in which assets are used to pay debts and expenses) requires that specifically devised property be used last. A personal representative who sells specifically devised property when other estate assets are available to pay obligations may be liable for the value of the property to the intended beneficiary.

Ignoring Trust or Other Provisions

Many wills contain provisions that create testamentary trusts, impose conditions on distributions, or direct how certain assets should be managed. For example, a will may direct the personal representative to establish a trust for a minor child's benefit or to distribute assets in installments. A personal representative who ignores these provisions and distributes assets outright, or who fails to establish the required trusts, is not following the will.

Self-Dealing

A personal representative who uses their position to benefit themselves at the expense of the estate is engaging in self-dealing. This includes purchasing estate assets for themselves at below-market prices, charging excessive compensation, using estate funds for personal expenses, or taking actions that benefit their own interests at the expense of the beneficiaries. Self-dealing is a serious breach of the personal representative's duty of loyalty and is prohibited under Florida law.

Legal Remedies Available to Beneficiaries

Florida law provides several powerful remedies for beneficiaries when a personal representative fails to follow the will. These remedies can be pursued individually or in combination, depending on the circumstances.

Petition for Compliance

A beneficiary may petition the probate court to compel the personal representative to comply with the terms of the will and the Florida Probate Code. The court has broad authority to issue orders directing the personal representative to take specific actions, such as making a particular distribution, preserving a specifically devised asset, or fulfilling other obligations required by the will. The court may also set deadlines for compliance and impose sanctions for failure to obey its orders.

Petition for Accounting

If a beneficiary suspects that the personal representative is not following the will but lacks detailed information about the estate's administration, the beneficiary can petition the court to compel an accounting. An accounting forces the personal representative to provide a detailed report of all receipts, disbursements, distributions, and assets on hand. This information can reveal whether the personal representative has deviated from the will and, if so, how.

Petition for Removal

Under F.S. § 733.504, a beneficiary may petition the court to remove the personal representative from office. Grounds for removal include failure to perform the duties of the office, breach of fiduciary duty, mismanagement of the estate, conflict of interest, and other conduct that demonstrates the personal representative is not properly administering the estate. The court may remove the personal representative and appoint a successor who will administer the estate in accordance with the will.

The specific grounds for removal listed in F.S. § 733.504 include:

• The personal representative has intentionally misrepresented material facts in the proceedings leading to appointment
• Failure to comply with court orders
• Failure to perform any duty imposed by the Florida Probate Code
• Incapacity or substance abuse that impairs the ability to perform duties
• Failure to account for estate property
• Breach of fiduciary duty
• Conflict of interest that impairs the ability to act impartially

Surcharge

A surcharge is a monetary remedy that requires the personal representative to personally reimburse the estate for any losses caused by their breach of fiduciary duty. Under F.S. § 733.609, a personal representative who breaches their fiduciary duty is liable for any damage or loss to the estate resulting from the breach, any profit the personal representative made from the breach, and any profit that would have accrued to the estate absent the breach. Surcharge is a particularly powerful remedy because it holds the personal representative personally financially responsible, not just through the estate's assets or the personal representative's bond.

Injunctive Relief

In urgent situations where the personal representative is about to take an action that will irreparably harm the estate or its beneficiaries—such as selling a specifically devised asset or distributing assets to the wrong person—a beneficiary may seek an emergency injunction from the court. An injunction can prevent the personal representative from taking the harmful action until the matter can be fully heard and resolved.

When the Personal Representative Has a Valid Reason

It is important to note that not every deviation from the will constitutes a breach of duty. In some circumstances, the personal representative may have a legitimate reason for departing from the will's precise terms. For example:

• Insufficient assets. If the estate does not have enough assets to satisfy all devises in the will after paying debts and expenses, the personal representative must follow the statutory order of abatement under F.S. § 733.805, which may result in some beneficiaries receiving less than the will provides or nothing at all.
• Elective share. If the surviving spouse exercises the right to an elective share under F.S. § 732.201–732.2155, the personal representative must satisfy the elective share, which may require departing from the distribution scheme in the will.
• Homestead restrictions. Florida's homestead laws may override the will's provisions regarding the family home, requiring the personal representative to distribute the property differently than the will directs.
• Tax considerations. The personal representative may need to adjust distributions to account for estate taxes, income taxes, or other tax obligations that affect the net amount available for distribution.

When a personal representative departs from the will for a valid legal reason, they should communicate the reason to the affected beneficiaries and document the basis for their decision. Failure to provide an explanation for departing from the will can create the appearance of misconduct, even when the personal representative's actions are legally justified.

Time Limits for Taking Action

Beneficiaries who believe the personal representative is not following the will should act promptly. While there is no single statute of limitations that governs all claims against a personal representative, delay can prejudice a beneficiary's rights. If the personal representative files a final accounting and petition for discharge, beneficiaries have a limited time to file objections. Under F.S. § 733.901, once the court enters an order of discharge, the personal representative is generally released from further liability, making it much more difficult for beneficiaries to pursue claims after that point.

Contact a Florida Probate Attorney

If you are a beneficiary of a Florida estate and you believe the personal representative is not following the terms of the will, you should consult with an experienced probate attorney as soon as possible. The Law Offices of Albert Goodwin, PA represents beneficiaries in probate disputes throughout Florida, including petitions for compliance, removal of personal representatives, surcharge actions, and contested accountings. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134. Call us at 786-522-1411 or email [email protected] to discuss your situation.