ROBERT COHEN, APPELLANT,
v.
GERALD SCHWARTZ AND STEPHEN HOCHHAUSER, APPELLEES
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In this probate estate dispute, the Third District Court of Appeal affirmed the probate court's denial of a residuary legatee's motion to remove the personal representative and discharge the representative's attorney. The court emphasized the probate court's discretion in such matters and directed on remand that the court take active oversight to ensure timely settlement of the nearly eleven-year-old estate.
The court affirmed the denial of the motion to remove the personal representative, holding it was within the probate judge's discretion to find the evidence insufficient to warrant removal. On remand, the probate court must assume an active supervisory role to ensure the estate is settled and closed with deliberate dispatch, employing measures such as coordinating with the New York probate court, appointing an administrator ad litem, requiring annual accountings with extensions only for good cause, and assessing costs and attorney's fees against beneficiary portions for frivolous litigation.
[1] A probate judge has the discretion to determine if evidence presented is sufficient to warrant the removal of a personal representative.
[2] Estates of decedents must be settled and closed with deliberate dispatch and not for the personal benefit of representatives or their attorneys.
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Join FLexlaw to unlock all legal intelligence“It was within the province of the probate judge to determine that the evidence submitted was either insufficient or did not rise to the level necessary for the removal of the personal representative.”
Establishes the probate judge's discretion in removal decisions and the appellate court's deference to that determination
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Join FLexlaw to unlock all legal intelligenceRobert Cohen, a residuary legatee in the estate of Irene Cohen, sought removal of the personal representative and discharge of the representative's at…
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PER CURIAM.
We affirm the order denying the motion of a residuary legatee in the estate of Irene Cohen to remove the decedent’s personal representative and to discharge the representative’s attorney. It was within the province of the probate judge to determine that the evidence submitted was either insufficient or did not rise to the level necessary for the removal of the personal representative. This estate has been pending for probate in Florida for almost eleven years. Although the settlement of the estate is interdependent upon the settlement of the estate of the decedent’s husband presently pending for probate in New York, the record does not adequately reflect why either proceeding should consume so much time or estate assets. Estates of decedents are not probated at the leisure or for the benefit of personal representatives or their attorneys.
We direct that upon remand the probate court assume a dominant position assuring that this estate is settled and closed with deliberate dispatch. These steps may include, by way of illustration rather than limitation: a) attempting to coordinate settlement of the estate by communicating with the surrogate responsible for the probate of the estate of decedent’s husband in New York; b) appointing an administrator ad litem; c) requiring that at least annually, the final accounting and petition for discharge be extended only for good cause, embodied in a written order after notice to all interested parties, see § 733.901(l)(e), Fla.Stat. (1987); and d) assessing costs and attorney’s fees against a beneficiary’s portion of the estate for frivolous litigation caused the estate, §§ 733.106(1) & 733.-106(4), Fla.Stat. (1985); Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984).
AFFIRMED.
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In re Est. OF Ruth Lane, 562 So. 2d 352 (Fla. 4th DCA 1990)…inst a beneficiary’s share of an estate there must be a finding of bad faith or wrongdoing by the beneficiary or other circumstances which would warrant such an assessment. See Dayton v. Conger, 448 So. 2d 609 (Fla. 3rd DCA 1984); Cohen v. Schwartz, 538 So. 2d 922 (Fla. 3rd DCA 1989); see also Estate of Gerhart, 220 So. 2d 655 (Fla. 3rd DCA 1969). In Dayton v. Conger the court addressed whether the probate court properly ordered that attorney fees be paid out of the beneficiaries’ shares of the estate. The c…
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Geary v. Butzel Long, P.C., 13 So. 3d 149 (Fla. 4th DCA 2009)…estate there must be a finding of bad faith or -wrongdoing by the beneficiary or other circumstances which would warrant such an assessment. Id. at 353. Despite our use of “bad faith and wrongdoing,” we relied on and agreed with Cohen v. Schwartz, 538 So. 2d 922 (Fla. 3d DCA 1989), in which the court suggested that in trying to close a prolonged estate, the trial court could assess attorney’s fees against a beneficiary’s portion of the estate for frivolous litigation consistent with section 733.106(4). We a…
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Goodman v. Shapiro, 594 So. 2d 873 (Fla. 3d DCA 1992)…PER CURIAM. Affirmed. See In re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990); Cohen v. Schwartz, 538 So. 2d 922, 923 (Fla. 3d DCA 1988); Tiedeman v. City of Miami, 529 So. 2d 1266, 1267 (Fla. 3d DCA 1988); Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984).…
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