Florida Probate Litigation Lawyer Blog

When is a personal representative subject to personal liability? As a general rule, a personal representative is not personally liable for liabilities that arise out of the personal representative’s actions pursuant to administration of the estate. A personal representative may nevertheless subject themselves to personal liability.

In Florida, unless otherwise provided by contract, a personal representative is not personally liable on contracts entered into on behalf of the estate. However, a personal representative will be personally liable on a contract for attorney’s fees.

If the personal representative is personally at fault, he or she may be personally liable for obligations that arise from the control or ownership of the estate or for any torts committed by the personal representative during the administration of the estate. For instance, if the personal representative committed fraud against a creditor of the estate, that creditor can then sue the personal representative for damages incurred by the personal representative’s fraudulent acts.

All contracts entered into by a personal representative in their capacity as a fiduciary of the estate subjects the personal representative to liability in their capacity as a personal representative, but not individually. In other words, if an independent contractor sues the estate for breach of contract, that independent contractor would name the personal representative of the estate as a defendant, but only in his or her capacity as personal representative. Thus, when suing the estate a plaintiff would identify the defendant as “Joe Smith, as Personal Representative of the Estate of Sally Johnson.”

However, such contracts only subject the personal representative to personal liability if the contract causes the personal representative to breach their fiduciary duty to the estate and the beneficiaries of the estate. Claims against the personal representative in their capacity as personal representative of the estate may also be brought against the personal representative by the estate itself.

If the beneficiaries of an estate later sue the personal representative for breaches of fiduciary duty or some other action, any issues of liability between the personal representative as an individual and the estate may be determined in a proceeding for indemnification, surcharge or accounting or other appropriate proceeding.

If you or someone you know is interested in bringing an action against a personal representative, it would be best to consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Liability of Personal Representative

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How can one determine whether a personal representative is qualified to be the personal representative? Generally, in the State of Florida any person who is sui juris and is a resident of Florida at the time of the death of the decedent is qualified to act as personal representative. A person is sui juris if they have the capacity to manage their own affairs and are not under any legal disability. A legal disability is any characteristic which by operation of law precludes an individual from having the legal capacity to perform an act. Some legal disabilities that may disqualify a person from acting as a personal representative include being convicted of a felony, having been adjudicated as being mentally or physically unable to perform the duties or if one is under the age of 18.

For example, when Aunt Alice was thirty-five years old, she had a new will drafted and it was validly executed. The will named her twelve year old nephew, Ned as the personal representative of the estate. If Aunt Alice lived to be over eighty years old that would mean her nephew Ned was nearly sixty years old at the time of her passing. Ned’s jealous brother Benjamin contested Ned’s qualifications as the personal representative, alleging that Ned was not qualified to be the personal representative of Aunt Alice’s estate because when the will was executed, Ned was not sui juris because he was only twelve years old at the time.

Assuming Ned still has legal capacity to conduct his own affairs, has not been convicted of a felony and is mentally and physically able to perform the duties of a personal representative, Ned has satisfied all of the qualifications required of a personal representative.

As long as the personal representative is qualified when the decedent dies, it does not matter whether the personal representative was qualified when the decedent’s will was executed.

If you are interested in contesting the qualifications of a personal representative, you should consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Personal Representative

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