The New Risk of Being an Executor: Watch Out for Unpaid Taxes

January 2, 2013 by Bart Chepenik

Usually when an executor is appointed to administer an estate, he or she does not think that the liabilities of the estate could actually become their own. However, in U.S. v. David A. Tyler and Louis J. Ruch, a federal judge ruled that an executor can be held liable for the unpaid federal income taxes of an estate. In Tyler, the executor of an estate conveyed real property to the son of the decedent. The son was also one of the executors of the estate. The estate had a large unpaid income tax liability at the time of the real property conveyance. The son, who was aware of the unpaid income tax, sold the real estate and claimed to have lost the proceeds in the stock market. As a result, the Internal Revenue Service found itself trying to get blood from a stone because real estate conveyance essentially drained the estate. Tax liens are not extinguished by death and do stay attached to an estate’s property. Interestingly though, the Internal Revenue Service found recourse not in the Internal Revenue Code, but under Title 31 of the United States Code in Tyler. Under 31 USC 3713(b), the fiduciary in charge of assets is liable for unpaid claims of the government if (1) the fiduciary distributed assets, (2) the distribution rendered the estate insolvent, and (3) the fiduciary had actual or constructive knowledge of the liability before the distribution took place. Clearly, this underscores the importance of executors being properly advised when distributing assets of an estate.

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Surcharge of Personal Representative

April 9, 2010 by Bart Chepenik

Personal representatives in Florida are typically responsible for administering estates. While administering the estate, they have a duty to act solely for the benefit of the estate beneficiaries. If the personal representative fails in their duty to properly administer the estate, they can be personally liable to the other beneficiaries for their mistakes. Mistakes include an act or failure to act by the personal representative that causes waste or mismanagement of the estate’s assets. An example of which would be imprudently investing the estate’s assets or failing to properly pay a creditor’s claim when due. A surcharge action must be filed in the proper circuit court where probate case is filed, whether it is in Palm Beach, Fort Lauderdale or Miami.

To remedy for such mistakes, beneficiaries may seek to remove the personal representative. Additionally, those beneficiaries may pursue a surcharge action against the personal representative. The purpose of a surcharge action is to restore the losses to the estate caused by the breach of duty of the personal representative. Under Florida law, unless waived, a personal representative is required to post a bond with the court. When a beneficiary brings a surcharge action they are bringing an action against the personal representative stating that such individual has misappropriated or misused estate funds during the administration. If the surcharge action is successful, the bond company must then reimburse the estate for those amounts, up to the total amount of the bond.

Surcharge actions are intense and complicated procedures that involve tracing assets as well as reviewing business records. If you live in the West Palm, Broward or Miami-Dade area and believe a personal representative is not properly administering an estate, the probate litigation team at Chepenik & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Individual Liability of a Personal Representative in Florida

January 13, 2009 by Bart Chepenik

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.