Holding Estate and Probate Attorneys’ Feet to to the First

Posted on June 13, 2014

An opinion released last week by the First District Court of Appeal of Florida (“1st DCA”) concerned the legal practice of attorneys’ involved in estates and trusts by rightfully holding their feet to the fire.  In a case of first impression, the 1st DCA inBookman v. Davidson, 2014 Fla. App. Lexis 6472 (Fla. 1st DCA 2014) reversed a lower court’s decision and held that because a successor personal representative of an estate “steps into” the shoes of his predecessor, although they may lack privity, the successor has every right and duty under the Florida Probate Code to pursue legal action for malpractice against the predecessor’s attorney on behalf of the estate.

In January of 2007, a court appointed personal representative, Ford, engaged the legal services of an attorney to advise her on the administrative duties necessary to manage the aforementioned estate.  In the course of the representation, the attorney was paid almost two hundred thousand dollars from the estate.  After the initial personal representative resigned in 2010, a successor was appointed and immediately filed a civil suit against Ford’s attorney alleging that he improperly advised Ford in regards to her responsibilities in disclaiming and transferring out of the estate certain assets belonging to the estate that could have been used to pay its own creditors.

The attorney moved for summary judgment, claiming that a successor personal representative could not file a suit against him for malpractice due to a lack of attorney-client relationship and argued that a successor personal representative is not in privity with the original personal representative’s attorney, a necessary prerequisite to maintaining a malpractice claim.  The 1st DCA disagreed.

In reaching their decision, the Court relied upon the plain meaning of the language in the relevant statutes of the Florida Probate Code, including sections 733.601-.620, which set forth the powers, duties, and obligations of the personal representative in regards to the estate and other individuals, including attorneys.  More specifically in section 733.614, the Florida Probate Code addresses the powers and duties of a successor personal representative, who has the same power and duty as the original personal representative to complete the administration and distribution of the estate as expeditiously as possible.  Therefore, the 1st DCA explained, the powers granted to the original personal representative flow to the successor personal representative.  In other words, the code grants a successor personal representative the power to prosecute lawsuits or proceedings for the protection of the estate and the benefit of interested parties.  They are required by law to pursue assets and claims of the estate, which may lie in the hands of a former personal representative or his or her agents.

Thus, by virtue of the plain language of section 733.614 of the Florida Probate Code, the 1st DCA reasoned that all the power and rights Ford possessed, including the right to bring suit against her own attorney for legal malpractice on behalf of the estate transferred to the successor personal representative.  The successor personal representative has every right and duty under the law to pursue legal action for malpractice against the former personal representative’s attorney on behalf of the estate.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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