Florida Statute 733.609
“Improper exercise of power; breach of fiduciary duty”
What it means
The liability section. A personal representative's fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a PR who breaches it is liable to interested persons for damage or loss resulting from the breach.
The teeth are in the fee rule: in all actions for breach of fiduciary duty — or challenging the exercise of, or failure to exercise, a PR's powers — the court shall award taxable costs as in chancery actions, including attorney's fees. The court may direct that fees be paid from a party's interest in the estate, or enter a judgment against the party's other property, or both. The rule applies to whichever side loses the point.
- A PR's fiduciary duty is the same as a trustee's of an express trust — no softer estate-only standard.
- Breach makes the PR liable to interested persons for resulting damage or loss.
- In every breach or power-challenge action, the court shall award taxable costs, including attorney's fees.
- Fees can come out of a party's estate share, from a judgment against other property, or both — and the rule cuts both ways.
- Applies to proceedings regardless of the decedent's date of death.
How it plays out
The fee-shifting rule changes behavior on both sides. A beneficiary with a real breach claim is not doomed to spend the recovery on lawyers — and a beneficiary litigating a grudge can end up funding the PR's defense out of their own inheritance. Before we file or defend a surcharge case, the §733.609 fee analysis is part of the first conversation, because this statute makes the losing side's math ugly.
Questions people ask
