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October 20, 2022

The Probate action is an action over property and the distribution of Property among heirs and is often referred to as in rem (over property) jurisdiction as opposed to “in personam” jurisdiction which is jurisdiction over a person. This distinction is relevant because one of the primary jobs of a Personal Representative will be to marshal the assets of the decedent once appointed. Those assets can include a variety of things from personal property, homes, bank accounts, businesses etc…

One primary consideration of the Personal Representative in Florida will be how the particular asset is titled. One unique asset is the Florida Homestead. Under Florida Law, the homestead residence is a non-probate asset but is in the hands and control of the Personal Representative typically until it is released to the heirs at law. This may also apply to the other exemptions in the Florida probate code such as vehicles where a Personal Representative after appointment takes control or possession of the asset and then it ultimately passes, subject to an exemption to a beneficiary. Jones v. Federal Farm Mortg. Corp., 132 Fla. 807, 182 So. 226 (1938).

Notably the Florida Courts have recognized that the Personal Representative is charged with the marshalling of assets and have blessed authority to freeze, seize or hold even non-probate assets if there is a dispute as to the ownership of the same. Fla. Stat. 733.607(1) provides:

  1. Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead, but any real property or tangible personal property may be left with, or surrendered to, the person presumptively entitled to it unless possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration, in any action against the beneficiary for possession of it. The personal representative shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it.

So the Personal Representative in Florida has the statutory authority and obligation to protect assets of the Estate. This obligation and right extends to property that may be in dispute as to ownership among the beneficiaries and to maintain legal proceedings to recover questionable assets until the proper ownership can be determined. Even assets that may otherwise be non-probate assets. See for example Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004) In re Estate of Barsanti v. Cypen, 773 So.2d 1206 (Fla. 3d DCA 2000), In Markowitz the 4th DCA specifically recognized the Personal Representative’s ability to issue temporary injunctions freezing assets claiming to belong to a decedent’s Estate even though ultimate ownership is in dispute. Id citing Estate of Conger v. Congner, 414 So.2d 230 (Fla. 3rd DCA 1982).

The Florida Courts have armed the Personal Representative with the legal authority to marshal assets in a variety of ways. Our office handles Probate Administrations and Probate Litigation throughout the State of Florida. If you would like to discuss any of the information in this blog or anything related to Florida Estate Administration or Litigation give me a call for a free no obligation consultation.

-Brice Zoecklein, Esq.