When the Executor of a Will Breaches Fiduciary Duty

There is a significant amount of responsibility that goes to the person tasked with settling a decedent’s estate in probate court. This individual, usually referred to as the executor or personal representative, is often named in the decedent’s Last Will and Testament. The purpose of naming an executor is to entrust someone who is honest and responsible to handle everything related to the estate. 

The executor has many obligations in order to properly settle an estate. The executor must inventory all the probate assets, notify creditors of the estate, pay final taxes and debts, and, finally, ensure that each beneficiary listed in the Will gets their distributions. Though an executor might collect a small amount of money for completing the job, he or she has a fiduciary duty to act in the best interests of the estate and beneficiaries. More specifically, the executor has the duties of loyalty and impartiality, in addition to the duties to:

  • Prudently administer the estate
  • Account for the estate’s property and assets
  • Act in good faith
File a Lawsuit While the Estate is Still Open

If, as a beneficiary of the decedent, you suspect that the executor of the Will breached one of his or her duties, you need to act while the estate is still being settled. Florida courts have upheld a state law that states the executor or personal representative cannot be the subject of litigation after his or her discharge from the duties. Exceptions exist in the case of fraud or concealment of assets. 

Can an Executor Be Removed?

Yes, in extreme circumstances. A beneficiary or other interested party may petition the probate court to have the executor removed if he or she can demonstrate that the estate is being mismanaged. This is the typical reason for a beneficiary attempting to remove an executor. Another reason an executor or personal representative may be removed is due to incapacity. Whatever the reason for trying to remove an executor, there must be a formal hearing in court where both sides are able to present evidence and arguments. 

An important note is that mere hostility between the executor and a beneficiary is not sufficient to remove the executor or even file a successful claim. In other words, disagreements do not rise to the level of executor malfeasance. 


Despite the testator’s or court’s best efforts to choose a qualified and trusted executor, these individuals sometimes let selfishness get the best of them. As a result, the beneficiaries of a Will may not get what they are allotted and creditors might not have their debts satisfied. Our firm has extensive experience representing plaintiffs and defendants in probate litigation; we are currently offering free consultations to prospective clients. If you would like to discuss your estate planning or probate matters with an empathetic and qualified legal team, call us today at 305-358-1771. 

Luis E. Barreto