Reopening a Florida Estate and Surcharging the Personal Representative

Attorney Answer

Yes, a closed Florida estate can be reopened — and the failures you describe are the kind courts address. But reframe the fee argument: 3% is presumptively reasonable by statute, so the winning argument is not that the percentage was too high, it is that the work was never done.

Start with the duty. Fla. Stat. § 733.609 makes a personal representative's fiduciary duty the same as that of a trustee of an express trust, and provides that the PR "is liable to interested persons for damage or loss resulting from the breach of this duty." Selling estate real property without an appraisal and below market value, failing to inventory, failing to file the estate's income tax returns, and failing to pursue a wrongful death claim belonging to the estate are all potential breaches measured against that standard. The section also directs the court to award taxable costs including attorney's fees in such proceedings, which matters a great deal to whether pursuing this is economically sensible for you.

On the fee, Fla. Stat. § 733.617 sets presumptively reasonable compensation in a formal administration at 3% of the first $1 million of the compensable value of the estate, stepping down above that. The 3% taken here sits inside the statutory first tier, so it is facially reasonable as a percentage. Your challenge has to be that the services justifying it were not rendered — an argument about performance, not arithmetic.

Reopening is expressly authorized. Fla. Stat. § 733.903 provides that "the final settlement of an estate and the discharge of the personal representative shall not prevent further administration." Subsequent administration is the mechanism to enforce a right belonging to the estate that was never pursued — including, on your facts, an unfiled wrongful death claim and the difference between the market value and the sale price of the house. The one express limitation is that a discharge order may not be revoked merely because a will or a later will is discovered.

As sole beneficiary, the funeral, legal, and property costs you paid personally were ordinarily estate obligations. Documented, they are part of what a surcharge proceeding seeks to recover.

What you can do

1. Order the complete probate court file — petitions, the inventory (or the absence of one), the final accounting, the discharge order, and every fee petition. 2. Assemble your out-of-pocket proof: cancelled checks, card statements, and invoices for the funeral, the attorneys, and property expenses, in date order. 3. Get a retrospective appraisal of the house as of the sale date from a licensed appraiser, and pull the deed and closing statement. The gap between market value and sale price is the measurable loss. 4. Determine whether a wrongful death claim actually existed and whether its own deadline has passed. If it has, the lost claim itself may be the largest item of damage. 5. Confirm whether the estate's final income tax returns were filed, since unfiled returns can create ongoing liability. 6. Retain a Florida probate litigation attorney to petition for subsequent administration under § 733.903 and to seek surcharge and fee disgorgement under § 733.609. Raise the fee-shifting provision when you discuss cost.

⏱ Time limits apply. Deadlines to object to a personal representative's accounting and to bring a breach of fiduciary duty or surcharge claim after discharge are limited and can be short, and Fla. Stat. § 733.903 permits further administration without extending the deadline on any underlying claim — most importantly a wrongful death claim, which has its own separate and unforgiving period. Which deadlines control depends on your specific facts and on the dates in the court file.