Removing a Personal Representative in Florida
Fla. Stat. §§ 733.504–733.509
A Florida court can remove a personal representative (executor) on the petition of an interested person or on its own. Removal is mandatory if the personal representative was not qualified when appointed, and allowed for causes such as disobeying court orders, wasting or mismanaging the estate, adverse interests, or a felony conviction (Fla. Stat. §§ 733.504, 733.506).
What it is
"Personal representative" is Florida's term for the fiduciary appointed by the court to administer an estate. It covers the roles once called executor and administrator (Fla. Stat. § 731.201(28)). The court's letters give the personal representative authority, and a removal order revokes those letters (§ 733.506).
A personal representative's fiduciary duty is the same as that of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss caused by a breach (Fla. Stat. § 733.609(1)). Removal stops the harm going forward. Liability for past losses is decided in a proceeding for accounting, surcharge or indemnification (§ 733.619(4)), and removal does not release the personal representative or the surety from liability (§ 733.506).
A petition for removal is filed in the court that has jurisdiction over the administration, which is the existing probate case (Fla. Stat. § 733.505). Any interested person may file it, and the court may start removal on its own (§ 733.506).
Some people are never qualified to serve, including anyone convicted of a felony, anyone convicted of abuse, neglect or exploitation of an elderly person or disabled adult, anyone mentally or physically unable to perform the duties, and anyone under 18 (Fla. Stat. § 733.303(1)). A nonresident can serve only if related to the decedent in ways § 733.304 lists. A personal representative who knows they were not qualified when appointed must resign immediately (§ 733.3101(1)).
Grounds for Removing a Personal Representative
The court must remove a personal representative who was not qualified to act when appointed. It may also remove a personal representative for any of the causes listed in Fla. Stat. § 733.504, including:
- Adjudication of incapacity, or physical or mental incapacity that makes the personal representative unable to carry out the duties (§ 733.504(1)–(2)).
- Failure to comply with a court order, unless the order has been superseded on appeal (§ 733.504(3)).
- Failure to account for the sale of property, or to produce and exhibit the estate's assets when required (§ 733.504(4)).
- Wasting or maladministration of the estate (§ 733.504(5)).
- Failure to give bond or security for any purpose (§ 733.504(6)).
- Conviction of a felony (§ 733.504(7)), or insolvency or receivership of a corporate personal representative (§ 733.504(8)).
- Holding or acquiring interests adverse to the estate that will or may interfere with the administration as a whole (§ 733.504(9)).
- Revocation of probate of the will that named the personal representative (§ 733.504(10)), or moving out of Florida when Florida domicile was required for the appointment (§ 733.504(11)).
- Being qualified when appointed but no longer entitled to appointment (§ 733.504(12)).
The adverse-interest ground does not apply to a surviving spouse merely because the spouse claims the elective share, family allowance or exemptions (Fla. Stat. § 733.504(9)). Removal is in addition to any other penalty the law provides.
Removal vs. Resignation
| Aspect | Removal | Resignation |
|---|---|---|
| Governing statute | Fla. Stat. §§ 733.504–733.509 | Fla. Stat. § 733.502 |
| Who starts it | An interested person, or the court on its own (§ 733.506) | The personal representative |
| When the court acts | On proof of a cause listed in § 733.504 | After notice to all interested persons, if the estate's interests are not jeopardized |
| Effect on liability | Does not exonerate the personal representative or surety (§ 733.506) | Does not exonerate the personal representative or surety (§ 733.502) |
How a Removal Proceeding Works
Removal is decided in the estate's own probate file. The steps below follow the statutes that govern what happens before and after the order.
- Before filing: collect what you have, such as the inventory, any accountings, correspondence and court orders the personal representative has not followed. These show the cause for removal under Fla. Stat. § 733.504.
- Petition: an interested person files a petition for removal in the probate case (Fla. Stat. §§ 733.505, 733.506), stating the grounds.
- Hearing and order: if the court removes the personal representative, it revokes the letters (Fla. Stat. § 733.506).
- Successor: the court appoints a successor personal representative, or a curator to serve until one is appointed (Fla. Stat. § 733.5061).
- Turnover: the removed personal representative must immediately deliver all estate assets, records, documents and papers to the remaining personal representative or successor fiduciary (Fla. Stat. § 733.509).
- Final accounting: the removed personal representative must file and serve a final accounting (Fla. Stat. § 733.508(1)). Discharge comes only after any liability is determined and satisfied and the assets are delivered to the successor (§ 733.508(2)).
- Deadlines do not reset: appointing a successor does not extend or renew the time to object to the will unless a new will or codicil is admitted (Fla. Stat. § 733.212(4)).
Fees and Personal Liability
In an action for breach of fiduciary duty, or one challenging how a personal representative used or failed to use its powers, the court shall award taxable costs, including attorney fees (Fla. Stat. § 733.609(1)). The court may direct payment from a party's interest in the estate or enter a judgment that can be satisfied from the party's other property (§ 733.609(2)).
A personal representative who should have resigned or given notice of disqualification under Fla. Stat. § 733.3101, and did not, is personally liable for the costs, including attorney fees, of a removal proceeding if removed (§ 733.3101(3)). A personal representative is personally liable for torts committed in the course of administration, or for obligations arising from control of the estate, only if personally at fault (§ 733.619(2)).
Do You Need a Lawyer to Remove a Personal Representative?
Removal is a contested proceeding against a court-appointed fiduciary who is usually represented by the estate's attorney. The petition has to tie specific facts to a cause in Fla. Stat. § 733.504, and the follow-through, including turnover of assets, the removed personal representative's final accounting and any surcharge claim, is where losses are recovered. Not every disagreement justifies removal. Sometimes a court order compelling an accounting, or a negotiated change of fiduciary through probate mediation, resolves the problem faster. For the duties the personal representative should be meeting, see personal representative duties; for other estate disputes, see probate litigation.
Frequently Asked Questions
How do I remove an executor in Florida?
Florida calls the executor a personal representative. To remove one, an interested person files a petition for removal in the probate case where the estate is being administered (Fla. Stat. §§ 733.505, 733.506), showing a cause listed in § 733.504, such as mismanaging the estate or ignoring a court order. If the court removes the personal representative, it revokes the letters and appoints a successor or a curator (§§ 733.506, 733.5061).
What are grounds to remove a personal representative in Florida?
Removal is mandatory if the personal representative was not qualified when appointed. Discretionary grounds in Fla. Stat. § 733.504 include incapacity, failure to comply with a court order, failure to account for sales or produce estate assets, wasting or maladministration, failure to give bond, a felony conviction, conflicting or adverse interests, revocation of probate of the will, and moving out of Florida when Florida domicile was required.
Can a beneficiary remove a personal representative?
A beneficiary can petition for removal. Proceedings may be started by the court or on the petition of an interested person (Fla. Stat. § 733.506), which includes anyone reasonably expected to be affected by the outcome (§ 731.201(23)). The court decides whether a statutory cause exists; a beneficiary's dislike of the personal representative is not enough by itself.
What happens to the estate after a personal representative is removed?
The court appoints a successor personal representative, or a curator until a successor is appointed (Fla. Stat. § 733.5061). The removed personal representative must immediately turn over all estate assets and records (§ 733.509) and file and serve a final accounting (§ 733.508(1)). The removed personal representative is discharged only after any liability is determined and satisfied and the assets reach the successor (§ 733.508(2)).
Is a removed personal representative still liable for losses?
Yes. Removal does not exonerate the removed personal representative or the surety from any liability (Fla. Stat. § 733.506). A personal representative is liable to interested persons for loss caused by a breach of fiduciary duty (§ 733.609(1)), and the estate's claims against the personal representative can be decided in a proceeding for accounting, surcharge or indemnification (§ 733.619(4)).
Can a personal representative be removed for a conflict of interest?
Yes, if the personal representative holds or acquires interests adverse to the estate that will or may interfere with the administration of the estate as a whole (Fla. Stat. § 733.504(9)). The statute makes an exception for a surviving spouse who exercises the right to the elective share, family allowance or exemptions; claiming those rights alone is not a ground for removal.
Who pays the attorney fees to remove a personal representative?
In an action for breach of fiduciary duty against a personal representative, the court shall award taxable costs including attorney fees, and may direct payment from a party's interest in the estate or enter a judgment against the party (Fla. Stat. § 733.609). A personal representative who failed to resign or give notice of disqualification as § 733.3101 requires is personally liable for removal costs and fees if removed.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Concerned about how an estate is being handled?
Call (407) 843-0430 or schedule a consultation with an Orlando probate attorney to review the court file and decide whether removal, an accounting or another remedy fits.
Or text PROBATE to (407) 906-9507 for a faster response.
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