The Personal Representative’s Duty to Protect Estate Assets in Florida

By Desiree Sanchez, Esq.  |  Sanchez Law Group, P.A. |  Florida Probate

When a Florida court appoints a personal representative (PR) to administer an estate, it is conferring significant authority and responsibility. One of the most fundamental duties a personal representative carries from the moment of appointment is the duty to protect and preserve estate assets for the benefit of creditors and beneficiaries alike.

This duty is not aspirational. It is legally enforceable, and a personal representative who fails to meet it can be held personally liable for resulting losses. This post explains what the duty to protect estate assets means in practice, what specific obligations it creates, and what happens when a personal representative falls short.

What Is a Personal Representative?

A personal representative is the individual or institution appointed by the probate court to administer a decedent’s estate. The PR may be named in the decedent’s will or, if there is no will (or the named PR cannot serve), appointed by the court under Florida’s intestacy statutes.

Under Florida Statutes § 733.602, a personal representative is a fiduciary which is a role that demands the highest standard of loyalty, care, and good faith. The PR does not act for personal gain; they act for the benefit of the estate’s creditors and beneficiaries. Every decision the PR makes must be filtered through that lens.

The Legal Foundation: Florida Statutes §§ 733.602 and 733.612

The duty to protect estate assets flows from multiple provisions of Florida’s Probate Code. Florida Statutes § 733.602 establishes the general fiduciary standard: a personal representative must observe the standards of care that would be observed by a prudent person dealing with the property of another.

Florida Statutes § 733.612 enumerates the specific powers a personal representative has in furtherance of estate administration, including the power to collect assets, enforce claims, insure property, abandon worthless assets, and take any action necessary to protect the estate from loss.

Together, these statutes establish both the authority and the obligation to act. A personal representative who has the power to protect an asset and fails to exercise it may be just as liable as one who actively misappropriates estate property.

What the Duty to Protect Actually Requires

The duty to protect estate assets is broad and context-specific, but it generally encompasses the following obligations:

1.  Taking Inventory and Securing Assets Promptly

One of the first obligations following appointment is to locate, identify, and take control of all estate assets. Under Florida Statutes § 733.604, the personal representative must prepare and file an inventory of the estate’s assets within 60 days of appointment. This is not a paperwork formality, it is the mechanism by which the estate’s assets are identified, valued, and brought under the PR’s control.

Real property must be secured, bank accounts must be marshaled, personal property must be accounted for, and any ongoing business interests must be identified. Assets left unidentified or unsecured are at risk of loss, theft, or deterioration and the PR can be held responsible for that loss.

2.  Maintaining and Insuring Estate Property

A personal representative has an affirmative obligation to maintain estate property in good condition during the administration period. For real property, this means ensuring that utilities remain active where necessary, maintaining insurance coverage, making reasonable repairs to prevent deterioration, and ensuring that property taxes and mortgage payments are kept current to avoid foreclosure or tax deed proceedings.

For personal property, vehicles, artwork, jewelry, business equipment, the PR must take reasonable steps to prevent damage, theft, or depreciation. Allowing estate property to deteriorate through inaction is a breach of fiduciary duty.

3.  Collecting Assets and Enforcing Claims

The estate may have assets that are not immediately in the PR’s possession such as funds held by third parties, accounts receivable, promissory notes, legal claims, or other interests. The PR has both the authority and the duty under § 733.612 to collect these assets, demand payment, and if necessary, initiate legal proceedings to enforce the estate’s rights.

A personal representative who allows a valid claim to lapse due to inaction (for example, by missing a statute of limitations) may be held personally liable for the value of the lost claim.

4.  Managing Ongoing Financial Obligations

Estate administration rarely happens overnight. During the administration period, the estate may have ongoing financial obligations such as mortgage payments, HOA fees, utility bills, property taxes, insurance premiums, or business operating costs. The PR must manage estate cash flow to ensure these obligations are met so that assets are not lost to foreclosure, tax sale, or regulatory action.

Where estate funds are insufficient to cover ongoing costs, the PR must communicate promptly with beneficiaries and, if necessary, seek court guidance on how to proceed.

A critical and non-negotiable aspect of financial management is the prohibition on commingling. Estate funds must be held in a dedicated estate account and must never be mixed with the personal representative’s personal finances. Commingling, even when unintentional, is a serious breach of fiduciary duty that can expose the PR to personal liability, removal, and claims of misappropriation. Accurate, separate recordkeeping of all estate receipts and disbursements is not optional; it is a core fiduciary obligation.

5.  Preventing Unauthorized Distributions

The PR must not distribute estate assets before all valid creditor claims have been addressed. Premature distribution, even with good intentions,  can expose the personal representative to personal liability if estate funds are later needed to satisfy a creditor’s claim.

Florida Statutes § 733.705 establishes the order in which estate obligations must be paid, and the PR must follow this priority scheme carefully before making any distributions to beneficiaries.

6.  Avoiding Self-Dealing and Conflicts of Interest

A personal representative who is also a beneficiary, creditor, or has some other personal stake in the estate faces heightened scrutiny. Under Florida’s fiduciary duty framework, self-dealing — transactions in which the PR benefits personally at the estate’s expense — is presumptively a breach of duty.

This does not mean a PR who is also a beneficiary cannot serve — but it does mean every decision affecting their personal interests must be made with exceptional transparency and, in many cases, court approval or the informed consent of all interested parties.

Specific Threats to Estate Assets the PR Must Guard Against

In practice, estate assets face a variety of threats during administration. A competent personal representative must be alert to:

• Occupants or family members removing personal property from the estate premises before or during administration;
• Tenants failing to pay rent or refusing to vacate estate real property, requiring the PR to pursue eviction proceedings;
• Mortgage default or tax delinquency threatening foreclosure or tax deed proceedings against estate real property;
• Third-party creditors attempting to seize or encumber estate assets outside of the probate process;
• Co-beneficiaries or co-PRs acting unilaterally to transfer, encumber, or dissipate estate assets; and
• Fraud or financial exploitation targeting the estate, particularly in cases involving elderly decedents whose assets may have already been partially dissipated prior to death.

When the PR Is Also a Beneficiary or Creditor

Florida probate frequently involves personal representatives who are also beneficiaries of the estate such as a surviving spouse, an adult child, or a sibling who also stands to inherit. This dual role is legally permissible but creates inherent tension that the PR must manage carefully.

Where the PR is also a creditor of the estate (meaning they have a personal financial claim against the estate) the conflict intensifies. The PR must not use their position to give their own creditor claim preferential treatment over the claims of other creditors or the interests of beneficiaries. In contested estates, courts may appoint an Administrator Ad Litem or require independent counsel to address specific conflicted decisions.

Transparency and documentation are essential when a PR has a dual role. Every decision affecting a personal interest should be documented, disclosed, and, where required, submitted to the court for approval.

What Happens When the PR Fails to Protect Estate Assets?

A personal representative who breaches the duty to protect estate assets faces serious consequences under Florida law. Florida Statutes § 733.609 provides that a PR who commits a breach of fiduciary duty is personally liable to interested persons for resulting damages. This means the PR can be required to compensate the estate out of their own personal funds for losses caused by their failure to act.

Consequences of a breach may include:

• The court may order the PR to pay the estate the value of assets lost or damaged through the breach;
• The court may remove the PR from their position and appoint a successor;
• A PR who breaches their duty may forfeit their right to a PR fee; and
• Beneficiaries or creditors may bring a separate civil action for breach of fiduciary duty.

Beneficiaries: What to Do If You Believe the PR Is Not Protecting the Estate

Beneficiaries are not passive participants in the probate process. If you have reason to believe that the personal representative is failing to protect estate assets, you have legal options.

• Demand an accounting. Under Florida Probate Rules, beneficiaries have the right to an accounting of the estate’s assets, liabilities, and transactions. An accounting can reveal mismanagement or missing assets.
• File a motion for relief. The probate court has broad equitable powers to compel the PR to take specific actions, restrain the PR from taking others, or require the PR to post a bond.
• Petition for removal. Under Florida Statutes § 733.504, any interested person may petition the court to remove a PR who has wasted or misappropriated estate assets, failed to comply with court orders, or otherwise failed to perform their duties.
• Retain independent counsel. Beneficiaries concerned about the PR’s conduct should engage their own attorney, separate from the attorney representing the estate, to protect their individual interests.

Whether you are a personal representative seeking guidance on your obligations or a beneficiary concerned about how an estate is being managed, Sanchez Law Group, P.A. can help. Sanchez Law Group, P.A. handles probate administration and estate planning throughout Florida with offices in Orlando, Kissimmee, Delray Beach and Tampa.

DISCLAIMER

This blog post is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Florida probate law is complex and fact-specific; you should consult a licensed Florida attorney regarding your particular circumstances.