Florida Probate Litigation Blog

Personal Representative's Fiduciary Duty

In Florida, a Personal Representative, sometimes called an executor/executrix in other states, has the same fiduciary duty as a trustee of an express trust. Accordingly, a Personal Representative is liable to interested persons for damage or loss resulting from a breach of their duty. § 733.609, Fla. Stat. (2014).

And, when a Personal Representative breaches the fiduciary duty, the court shall award taxable costs as in chancery actions, including attorney’s fees.

A Personal Representative can have many duties, including specific duties provided for in a testator’s will. With that said, the general duties are outlined in section 733.602, Florida Statutes, which provides as follows:

733.602. General duties

(1) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent's will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.

(2) A personal representative shall not be liable for any act of administration or distribution if the act was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a proceeding challenging intestacy or a proceeding questioning the appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons.

§ 733.602, Fla. Stat. (2014).

Thus, a Personal Representative must act in good faith and promptly object or defend a claim against the estate. However, it is important to note that a Personal Representative is not liable for any act of administration or distirbution if the act was authorized at the time.