Can a Florida Probate Court Dismiss a Personal Representative Without Giving Proper Notice?

Serving as the personal representative of a Florida probate estate is a significant responsibility. Among other things, the personal representative owes a fiduciary duty to the heirs of the estate to complete the administration of the estate in a timely manner. And the probate court can–and will–remove a personal representative who fails to carry out this duty.

Florida Appeals Court Intervenes in Multi-Year Probate Dispute

At the same time, Florida courts must always observe due process before taking such drastic action. At a minimum, the personal representative has the right to notice prior to any hearing where their removal–or dismissal of the probate estate–is a possibility. And the personal representative also has the right to present a defense of their actions.

A recent decision from the Florida Second District Court of Appeal, McGhee v. Estate of McGhee, presents a situation where the probate court did not respect due process. This case involved a probate dispute between the son and granddaughter of a Florida resident who died in 2017. Both parties petitioned to be named personal representative of the estate.

Two years of litigation followed. The probate court ultimately appointed the son as personal representative. The granddaughter then failed to participate in the probate proceedings for the next two years, apparently because her attorney withdrew from the case. Notwithstanding this, the son carried out his duties as personal representative, including filing an inventory of the estate.

But in 2021, more than four years after the decedent passed away, the probate court issued a “show cause” order to the son. Essentially, the son was put on notice that he had not complied with all of the necessary steps to complete the administration of the estate. The judge therefore ordered the son to appear at a hearing and explain himself.

The son explained the delay was due to the granddaughter’s lack of cooperation in producing certain documents. The granddaughter responded by asking the judge to remove the son as personal representative. The judge apparently held the show cause hearing, but no record was ever filed with the appellate court.

Another year passed, and in early 2022, the probate court entered a second show cause order. After hearing from both the son and the granddaughter, the judge decided to revoke the son’s authority as personal representative and administratively dismiss the probate case.

On appeal, the Second District said that was a legal error. Neither of the show cause orders included language suggesting that dismissal of the case was a possibility. The son therefore never received proper notice, which is a basic requirement of due process. And given the son presented “what appear to be plausible grounds for the delay in administration,” he was entitled to an evidentiary hearing after receiving the proper notice.

Contact Florida Estate Litigation Attorney Mark R. Manceri Today

If you are involved in a Florida probate dispute, it is imperative that you work with an experienced Pompano Beach breach of fiduciary duties lawyer who can advise and assist you. Having an attorney is especially important to help prevent a situation like the one above where a probate drags out for years due to a party’s failure to participate in the process. So if you need to speak with an attorney as soon as possible, contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.

Source:

scholar.google.com/scholar_case?case=3850846313417890303