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Factual Background:

The administrator ad litem of the estate brought suit against the former personal representative and State Farm (surety) alleging breach of fiduciary duty.  State Farm moved to dismiss on the basis that the administrator’s action was barred by the one year statute of limitations in §473.213.

Held:

Trial court dismissed the affirmative defense, denied the motion to dismiss, and after receiving evidence, entered judgment for administrator and ruled that surety was jointly and severally liable for the amount of the bond.

On Appeal:

Affirmed.  Removal of the personal representative was not a “discharge” that commenced the running of the one-year statute of limitations.  For discharge to occur, specific procedures must be followed and an order of discharge issued by the court.  In this case, the trial court had not entered an order of discharge to allow the one-year clock in §473.213 to begin running.