A Strong Offense
A Stronger Defense
Depending on the circumstances in which they arrive in the position, a successor personal representative can have a lot of cleaning up to do. Just how much looking back on the acts of her predecessor a successor fiduciary can – or must – do has been the subject of much debate. Now, in Bookman v. Davidson, a Florida appellate court has, in a case of first impression, determined that a successor personal representative not only can pursue legal malpractice claims against an attorney retained by the original personal representative, a successor personal representative may have a duty to pursue such claims.
Under Florida law, the powers granted to the original personal representative flow to the successor personal representative. The Florida Probate Code grants a personal representative the power to engage a lawyer to represent the personal representative and the power to pay the lawyer from estate funds. The Florida Probate Code also grants the personal representative the power to prosecute lawsuits or proceedings for the protection of the estate and the benefit of interested parties. A personal representative has a duty to act within “the best interests of the estate” and in “the best interests of all interested parties, including creditors.” Taken together, a personal representative has the duty 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. Thus, within this context, a successor personal representative – who steps into the shoes of his or her predecessor – has the right and duty to pursue a claim of the estate.
This conclusion, therefore, raises the possibility that – although a successor personal representative may not necessarily be liable for the acts of his or her predecessor – the failure of the successor to clean up after the predecessor and the predecessor’s agents may ultimately put the successor on the hook.