Is it permissable for a personal representative of an estate to make interest-free loans to himself from the assets of the estate?

The personal representative is also one of the 3 heirs of the estate. The Will does not make any provision for the PR to loan money to himself. He is one of 3 siblings who were each bequeathed 1/3 of the estate. The other 2 heirs did not know he was making these loans to himself. The loans have been repaid, without interest. Should we speak to a probate attorney? In Winter Haven, FL.

Asked on November 30, 2010 under Estate Planning, Florida


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

A personal representative has a "fiduciary duty" to an estate and the beneficiaries. And it appears that he has breached this duty.  Basically, a fiduciary duty is a legally implied duty which imposes the highest standard of care under the law.  Accordingly, a fiduciary is expected to put the best interests of the entity/person they owe the duty to above all else. This relationship is highlighted by good faith, loyalty and trust. Therefore a fiduciary must not put their personal interests before their duty, and must not profit from their position as a fiduciary.  The failure of a fiduciary to properly perform their duties may give rise to a claim.  

In your case, the fiduciary (PR) has engaged is self-dealing (making loans to himself without proper approval) and has wasted estate assets (not paying interest).  At this point, you need to contact an attorney.  You should also notify the probate court of his breach and request his removal as PR.  Additionally, you will then need to have someone else appointed who can challenge any transfers and transactions that may have been made which were not in the best interests of the estate (and get the money refunded), and move to have an accounting of the estate.  If the PR, in his capacity as executor, is bonded (insured) you may also be able to go after any insurance money to recoup losses, if any. Again, a probate lawyer can best guide you in this.

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