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Florida Statutes

Fla. Stat. § 733.609 (2025)

Improper exercise of power; breach of fiduciary duty.

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733.609 Improper exercise of power; breach of fiduciary duty.—
(1) A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty. In all actions for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers, the court shall award taxable costs as in chancery actions, including attorney’s fees.
(2) When awarding taxable costs, including attorney’s fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.
(3) This section shall apply to all proceedings commenced hereunder after the effective date, without regard to the date of the decedent’s death.
History.—s. 1, ch. 74-106; s. 78, ch. 75-220; s. 1006, ch. 97-102; s. 132, ch. 2001-226; s. 11, ch. 2003-154.
Notes of Decisions
Cited in 54 cases (6 in the last 5 years), 1980–2026 · leading case: In Re Est. of Simon, 549 So. 2d 210 (Fla. 3d DCA 1989).
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In Re Est. of Simon, 549 So. 2d 210 (Fla. 3d DCA 1989). · cites it 22× “In all actions challenging the proper exercise of a personal representative's powers, the court shall award taxable costs as in chancery actions, including attorney's fees. Under the statute, a person claiming damages for breach of fiduciary duty or improper exercise of power by…”
Van Dusen v. Se. First Nat. Bank, 478 So. 2d 82 (Fla. 3d DCA 1985). · cites it 6× “See generally § 733.609, Fla. Stat. (1983). We conclude that the legislature intended for a modified res judicata concept to be applicable in probate cases.”
Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980). · cites it 4× “[4] The order also retained jurisdiction to tax attorney's fees in favor of Dawn [§ 733.609, Fla. Stat. (1977)] but that feature of the order is not challenged.”
In Re Est. of Pearce, 507 So. 2d 729 (Fla. 4th DCA 1987). · cites it 9× “Appellees point out that according to section 733.609, Florida Statutes (1983), a personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty, if the personal representative improperly exercises power concerning the…”
Florida Bar, 537 So. 2d 500 (Fla. 1988). · cites it 4× “F.S. 733.609 Improper exercise of power; breach of fiduciary duty.”
Zola v. Gordon, 685 F. Supp. 354 (S.D.N.Y. 1988). “See Fla.Stat.Ann. § 733.609 (West 1976). Such an action is governed by a four-year statute of limitations.”
Anderson v. Anderson, 468 So. 2d 528 (Fla. 3d DCA 1985). · cites it 3× “Turning to the second appeal filed in this cause, the trial court assessed attorney's fees in the amount of ,700 against appellant pursuant to section 733.609, Florida Statutes (1983) for the Petition for Removal of Personal Representative and for the Petition for Removal of…”
Brake v. Murphy, 636 So. 2d 72 (Fla. 3d DCA 1994). · cites it 4× “" § 733.609, Fla. Stat. (1991). The statute by its terms applies to improper conduct while exercising one's power as personal representative.”
Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995). · cites it 3× “Stokus and Olson filed a motion to tax attorney's fees and costs in accordance with section 733.609, Florida Statutes (1991).”
Kathleen G. Kozinski, etc. v. Amy Stabenow & Nora Faul, 152 So. 3d 650 (Fla. 4th DCA 2014). · cites it 3× “4th DCA 1987), we said: Inasmuch as section 733.609 likens the role of a personal representative to that of a trustee of an express trust, we find it helpful to see what is the usual law respecting surcharge, which is payment by a trustee .”
Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949 (Fla. 3d DCA 1984). “§ 733.609. See In Re Francis' Estate, 153 Fla.”
Sullivan v. Dep't of Transp., 595 So. 2d 219 (Fla. 2d DCA 1992). · cites it 2× “[4] We have not ignored section 733.609, Florida Statutes (1987) which permits an action against a personal representative for breach of a fiduciary duty.”
Show all 54 citing cases →
— 733.609(1) — 12 cases
Kathleen G. Kozinski, etc. v. Amy Stabenow & Nora Faul, 152 So. 3d 650 (Fla. 4th DCA 2014). “4th DCA 1987), we said: Inasmuch as section 733.609 likens the role of a personal representative to that of a trustee of an express trust, we find it helpful to see what is the usual law respecting surcharge, which is payment by a trustee .”
Est. of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013).
Langer v. Fels, 93 So. 3d 1069 (Fla. 4th DCA 2012).
Van Vechten v. Anyzeski, 157 So. 3d 350 (Fla. 4th DCA 2015).
Kaplan v. Kaplan, 903 F. Supp. 2d 1304 (M.D. Fla. 2012).
— 733.609(2) — 2 cases
Van Vechten v. Anyzeski, 157 So. 3d 350 (Fla. 4th DCA 2015).
Lowell Amey Van Vechten, as Pers. Rep. & Tr. of the Est. of Nicola H. Amey v. Erica Anyzeski, as Pers. Rep. of the Est. of Milton Lain Benjamin (Fla. 4th DCA 2015).
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