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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 86376
Experience:  Fully licensed attorney in Texas in private practice.
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If the representative of an estate under values or omitts assets

Resolved Question:

If the representative of an estate under values or omitts assets from the inventory would that be considered fruad if he has the assets in his possession?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Can you please tell me:

1) At this time, have you attempted to have the representative removed via motion to the Court?
2) If so, what was the Court's response?
3) What state is the estate itself in - Florida?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.


Yes, we motioned the court and was denied because of the timing issue we filed after the 30 days. We appealed and also was denied . our atty claimed it would have opened a can of worms. Fla state appeals do not have to be explained they will provide an answer only. You can look up hill vs. Davis.


The estate is in Florida

Expert:  Ely replied 1 year ago.
M,

Thank you for your reply. I am typing out your answer now; apologies in advance for the momentary wait.
Expert:  Ely replied 1 year ago.
If the representative of an estate under values or omitts assets from the inventory would that be considered fruad if he has the assets in his possession?

First of all, we have to discuss the representative's fiduciary duty. The representative - also commonly called an Executor or an Administrator - have a fiduciary duty to both the trust and the beneficiaries. ESTATE OF RASMUSSEN, 335 So. 2d 634 - Fla: Dist. Court of Appeals, 1st Dist. 1975. A fiduciary duty essentially means being truthful and acting in the best interest of the estate and the beneficiaries.

Undermining or omitting assets from the estate may be seen as a breach of fiduciary duty. Or, it may be seen as fraud. Either way, it may be enough to have the Executor removed and another appointed in their place. A personal representative or executor of an estate may be removed from that fiduciary position if he or she is "unsuitable." Long v Long (Florida, 2013).

"Unsuitable" gives the Court a lot of subjectivity to play with, and it really depends on the Judge. Some Judges simply warn the executor from slipping up again, and others will remove them immediately. It is at the Court's discretion.

I have indeed taken a look at Davis. v. Hill, but my answer remains the same.

Also his children are primary benificaries. Conflict in interest also?

No, it is not. It is not unusual for an executor to have relatives as beneficiaries of the estate. This in itself is not a conflict of interest, or rather, it is not enough to remove them. However, should they breach their fiduciary duty, commit fraud, or otherwise are deemed "unsuitable" by the Judge, they may be removed by the Court.

Unfortunately, it seems that you have been unsuccessful at removing them, since you have appealed and were still denied. However, the matter is at the discretion of the Court, I am afraid - "unsuitable" is very generic and the Court can apply it as they see fit.

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Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 86376
Experience: Fully licensed attorney in Texas in private practice.
Ely and 4 other Estate Law Specialists are ready to help you

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