Breach of Fiduciary Duty by a Florida Personal Representative

PR duties under § 733.602 + personal liability under § 733.609 + surcharge remedies

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A Florida personal representative (PR) owes a fiduciary duty to all interested persons under Fla. Stat. § 733.602. When the PR breaches that duty — through self-dealing, mismanagement, failure to account, or favoritism — the PR can be held personally liable under Fla. Stat. § 733.609 for damages to the estate.

Florida PR Breach of Duty — Frequently Asked Questions

What are the duties of a Florida personal representative?

Under Fla. Stat. § 733.602 and related provisions, a Florida PR owes the following duties: (1) Settle and distribute the estate according to the will and applicable law (§ 733.602); (2) Act in the best interests of the estate and interested persons (§ 733.602); (3) Avoid self-dealing (§ 733.610); (4) Maintain estate property prudently; (5) Account annually and at final distribution (§ 733.602 and Probate Rules 5.346, 5.400); (6) Provide notice to interested persons of administration steps; (7) Use reasonable diligence to gather and value estate property; (8) Pay creditors in statutory priority order (§ 733.707).

What is breach of fiduciary duty by a Florida personal representative?

PR breach of fiduciary duty occurs when the PR fails to perform statutory or trust-instrument duties. The classic elements (from Crusselle v. Mong, 59 So. 3d 1178 (Fla. 5th DCA 2011), and applied throughout Florida probate practice): (1) The existence of a fiduciary duty; (2) Breach of that duty; (3) Damages flowing from the breach. Common breaches: self-dealing (PR buying estate property at below-market prices), favoritism (preferring one beneficiary over others), commingling (mixing estate funds with personal funds), failure to account, excessive PR compensation.

Can a Florida personal representative be sued personally?

Yes. Under Fla. Stat. § 733.609, a Florida PR is personally liable to interested persons for breach of fiduciary duty causing damage to the estate. The action seeks personal liability — judgment paid from the PR’s own assets, not from the estate. Common claims: surcharge for self-dealing losses, disgorgement of self-dealing profits, removal under § 733.504, denial or reduction of PR compensation under § 733.617, and attorney’s fees under § 733.106.

How do I prove a Florida personal representative breached their duty?

Effective proof typically includes: (1) The will and PR appointment documents — defines the duties accepted; (2) Estate accountings — line-item record of PR transactions; (3) Bank and brokerage records — actual transactions vs. accountings; (4) Inventory documents — showing what the PR identified as estate property; (5) Forensic accountant testimony — to identify discrepancies, self-dealing, or excessive fees; (6) Real estate records — for property sales below market value; (7) Correspondence with beneficiaries — to show pattern of non-disclosure or partiality.

Can a Florida personal representative take money from the estate for themselves?

Only as authorized by statute. Florida PRs are entitled to reasonable compensation under Fla. Stat. § 733.617 — typically calculated as a percentage of the estate value: 3% of the first $1 million, scaling down for larger estates. PRs cannot pay themselves extra for ordinary services. PRs may pay themselves for extraordinary services with court approval (e.g., handling litigation, managing closely held businesses). Taking compensation in excess of statutory rates or without authority is a breach of fiduciary duty and grounds for removal.

What is self-dealing by a Florida personal representative?

Self-dealing is when the PR engages in a transaction where their personal interest conflicts with the estate’s interest — for example: (1) Buying estate property for themselves at less than fair market value; (2) Selling estate property to a controlled entity; (3) Borrowing from the estate; (4) Hiring themselves or their business to provide services to the estate without disclosure; (5) Receiving payments or commissions from third parties connected to estate transactions. Florida Statute § 733.610 prohibits self-dealing absent specific authorization. Self-dealing voids the transaction and creates personal liability for any loss.

How much can a beneficiary recover from a breaching Florida personal representative?

Available remedies under Fla. Stat. § 733.609 include: (1) Direct damages — the dollar amount the estate lost because of the breach; (2) Disgorgement — profits the PR made from the breach; (3) Interest on lost amounts; (4) Removal of the PR under § 733.504; (5) Reduction or denial of PR compensation under § 733.617; (6) Attorney’s fees under § 733.106; (7) In egregious cases, punitive damages if the conduct involves fraud or intentional misconduct.

What is the statute of limitations on Florida personal representative breach?

Florida’s default 4-year statute of limitations for breach of fiduciary duty applies (Fla. Stat. § 95.11(3)). However, claims against an estate are subject to shorter procedural periods: claims must be filed within the 3-month or 2-year claims period under Fla. Stat. § 733.702. Once the estate is closed and the PR is discharged under § 733.901, beneficiaries have limited time to seek post-closure relief. The clock can be tolled by fraudulent concealment but the doctrine is narrowly applied.

Florida Authority Cited on This Page

Cripe v. Atlantic First National Bank, 422 So. 2d 820 (Fla. 1982) — Florida Supreme Court framework for fiduciary misconduct in inter vivos transfers; applied throughout fiduciary law.
Schiro v. Elliott, No. 2D2025-2366 (Fla. 2d DCA May 29, 2026) — Personal representative successfully defended homestead determination at the appellate level.
Hack v. Estate of Helling, 811 So. 2d 822 (Fla. 5th DCA 2002) — Burden-shifting in fiduciary misconduct cases involving capacity and undue influence in probate proceedings.

Case citations verified against CourtListener. This page is general information about Florida probate litigation and is not legal advice for your situation.