PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Successor Personal Representative May Sue His Predecessor’s Attorney For Malpractice

In Bookman v. Davidson, 2014 Fla. App. LEXIS 6472 (Fla. 1st DCA 5/5/14), Ford was appointed personal representative (“PR”) of the estate and engaged the services of attorney Davidson to advise her concerning her administrative duties. Ford subsequently resigned as PR and Bookman was appointed successor PR. After his appointment, Bookman filed a civil suit against Ford and Davidson alleging that Ford, through Davidson’s guidance, improperly disclaimed or transferred out of the estate certain assets belonging to the estate that could have been used to pay its creditors. Bookman sought damages based on allegations that Davidson had improperly advised Ford in regards to her responsibilities as PR, as well as damages from Ford, personally.

Davidson moved for summary judgment against Bookman, in part, claiming the undisputed facts established a lack of any attorney-client relationship between Davidson and Bookman such that Bookman, as successor PR, could not file a suit against him for malpractice. Primarily, Davidson argued a successor PR is not in privity with the original PR’s attorney, a necessary prerequisite to maintaining a malpractice claim under Florida law. The trial court granted Davidson’s motion for summary judgment. The appellate Court reversed. The Court ruled that a successor PR of an estate may bring a cause of action for legal malpractice against an attorney hired by his predecessor to provide services necessary to the administration of the estate. The court reasoned:

“Sections 733.601 through 733.620 set forth the powers, duties, and obligations of the personal representative as regards not only the estate, but an assemblage of other individuals related to the estate’s administration, including its beneficiaries, creditors, contractors, accountants, and attorneys. Section 733.602(1), Florida Statutes, prescribes the general duties of the personal representative by providing that the personal representative is a fiduciary who shall observe the standards of care applicable to trustees . . . [and] is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and [the Florida Probate Code] as expeditiously and efficiently as is consistent with the best interests of the estate.

To accommodate the personal representative’s exercise of her or his duties, section 733.612, Florida Statutes, governs the transactions authorized by the personal representative, including the employment of an attorney. See § 733.612(19), Fla. Stat. Most significantly, section 733.614 addresses the “[p]owers and duties” of a successor personal representative:

A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate as expeditiously as possible, but shall not exercise any power made personal to the personal representative named in the will without court approval.

Therefore, the powers granted to the original personal representative flow to the successor personal representative. Within this context, the Florida Probate Code expressly granted to Dana Ford, as personal representative of the estate of Deborah E. Irby, the power to engage appellee to represent her and to pay appellee from estate funds. See §§ 733.612(19) & 733.6171(1), Florida Statutes. The Code also grants to the personal representative the power to prosecute lawsuits or proceedings for the protection of the estate and the benefit of interested parties. See § 733.612(20), Fla. Stat. Furthermore, Ford, as personal representative, had the duty to act within “the best interests of the estate” and in “the best interests of all interested parties, including creditors.” §§ 733.602 & 733.603, Fla. Stat. This means the personal representative is required by law to pursue assets and claims of the estate, with value, including those assets which are in the hands of a former personal representative or her or his agents. See Sessions v. Willard, 126 Fla. 848, 172 So. 242, 245-46 (Fla. 1937).

Thus, there is no dispute that Ford, as the estate’s personal representative, had standing to bring suit against appellee for legal malpractice. Yet, by virtue of the plain language of section 733.614, we hold all of the power and rights Ford possessed, including the right to bring suit against appellee on behalf of the estate, likewise transferred to appellant as the successor personal representative. In essence, appellant stepped into the shoes of Dana Ford when he became the successor personal representative.”