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Successor Personal Representative Had Duty To Pursue Legal Malpractice Claims

June 5, 2014

Authors

Luke Lantta

Successor Personal Representative Had Duty To Pursue Legal Malpractice Claims

June 5, 2014

by: Luke Lantta

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

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Liability of Successor Personal Representatives

August 17, 2011

Authors

Luke Lantta

Liability of Successor Personal Representatives

August 17, 2011

by: Luke Lantta

The general rule is that a successor personal representative is not liable for the acts of its predecessor absent certain circumstances (e.g., the successor knew of a breach and permitted it to continue, neglected to take proper steps to redress a breach, etc.).  So, do these certain circumstances arise when the predecessor and successor personal representatives are partners in the same small law firm?  The Wisconsin Court of Appeals recently dealt with that issue and many more in In re Elegreet.

In addition to the successor personal representative liability question, the Court was faced with issues that come up all the time at the trial court level but which don’t often get appellate scrutiny: fees where the executor is also an attorney, attorney’s fees to a successful (or partially successful) beneficiary, and reduction in the personal representative’s fees.  So what led to this tangled web?

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