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What Happens When The Personal Representative Of An Estate Improperly Takes Property For Themselves?


Personal representatives have a fiduciary duty to the heirs and beneficiaries of a probate estate. This means, among other things, that an executor cannot embezzle estate assets for their own personal benefit. If such embezzlement occurs, the beneficiaries of the estate have the right to take legal action against the personal representative.

Kansas Supreme Court Orders Personal Representative to Pay Double Compensation to Charitable Beneficiary

There may also be scenarios where a person who is not technically in a fiduciary relationship can be held responsible for taking–or “converting,” in legal terms–estate property that rightfully belongs to a beneficiary.

For example, the Supreme Court of Kansas recently ordered a woman to pay double damages to a charitable beneficiary of a probate estate. The woman also served as personal representative of the estate. Prior to her appointment, she claimed $11,150 in cash that previously belonged to the deceased as “non-probate assets.” Specifically, the personal representative said that she was the joint tenant on a checking account and safe deposit box with the deceased.

The decedent’s will left her estate to a charitable organization, the Boys and Girls Club of Atchison, Kansas. The Club objected to the personal representative’s classification of the cash as non-probate assets. Instead, the Club alleged the personal representative had improperly converted probate assets prior to her appointment.

A Kansas judge agreed. It held the personal representative had breached her fiduciary responsibility to the Club. More to the point, the evidence demonstrated the personal representative was never a lawful joint tenant of the bank account or safe deposit box. Nor had the decedent gifted the property to the personal representative prior to death.

Under Kansas law, “any person” who embezzles or converts property belonging to a probate estate is “liable for the double the value of the property” in question. The question before the Kansas Supreme Court was whether or not this rule applied to “individuals who were not court-appointed fiduciaries when the decedent’s funds were taken before a probate proceeding began.” The Court said it did. The personal representative therefore had to pay back twice the amount she unlawfully converted.

Speak with a Florida Breach of Fiduciary Duty Lawyer Today

In every state, including Florida, there are strict rules governing the classification of probate and non-probate assets. As the executor of an estate, you should never make assumptions about how to classify property without first consulting an experienced attorney. You should certainly never assume the deceased “meant for you” to take certain property for your own personal use, contrary to the express instructions of their will.

At the end of the day, the personal representative is there to serve the best interests of the beneficiaries, not the other way around. Even when the personal representative is also a beneficiary, which is quite common in Florida probate proceedings, they must still deal with all other beneficiaries on an equal and good-faith basis.

If you are involved in a dispute regarding a personal representative’s alleged breach of fiduciary duty and need representation from a qualified Pompano Beach estate and trust litigation attorney, contact Mark R. Manceri, P.A., today to schedule a consultation.



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