PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Personal Representative’s Duty Of Impartiality

If an estate has two or more beneficiaries, the PR shall act impartially in administering the estate property, giving due regard to the beneficiaries’ respective interests and shall not take an affirmative position for or against any beneficiary claiming a right to the estate.

Sec. 733.602(1), F.S. reads:

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.

See, Van Dusen v. Southeast First Nat. Bank, 478 So. 2d 82 (Fla. 3d DCA 1985)(a personal representative is held to the standards of a trustee); Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980)( a personal representative of an estate and a guardian of property are required to exert the same standard of care as that of a trustee acting under an express trust).

Sec.736.0803, F.S. reads: “If a trust has two or more beneficiaries, the trustee shall act impartially in administering the trust property, giving due regard to the beneficiaries’ respective interests.”

It is neither appropriate nor proper for a PR to take an affirmative position for or against any beneficiary claiming a right to the estate where all of the beneficiaries are before the court. It is the responsibility of the various claimants to establish their own rights in the estate. The PR under such circumstances is, in effect, a nominal party and his duties may be limited to participating in the investigation of the claims, secure relevant documents, and procure other evidence. See, In re Estate of Lynagh, 177 So. 2d 256 (Fla. 2nd DCA 1965); Barnett v. Barnett, 340 So. 2d 548 (Fla. 1st DCA 1976). See also, Fla. Probate Rule 5.360, Elective Share and Pre Existing Dower, Committee Notes (2008).

Practice Tips: If the PR’s attorney also represents one or more of the beneficiaries in the litigation, she runs the risk of not being paid. In Barnett, the court stated: “At the time the trustee filed his complaint for declaratory judgment, the need for substantial additional legal services on the part of the trustee came to an end. All of the claimants being in court, it was not the duty nor prerogative of the trustee to favor one claimant over the other. Certainly the trustee is not entitled to have paid from the trust estate attorneys’ fees for services rendered by the trustee’s attorneys to other parties to the proceedings.” Additionally, in Lynagh, the court held that the administrator was not an interested party to the litigation between the beneficiaries and therefore, was not entitled to recover his costs incurred in that litigation.