Law Offices of James W. Mallonee, P.A.
Port Charlotte 941-206-2223
Venice 941-207-2223
Helping individuals & families across Florida with their legal matters since 2005

No One Wants to Probate – Now What?

A few days ago a situation came to this author’s attention regarding an unusual problem. A parent had died leaving a Will that devised property to the parent’s children. The Will also named one of the children as personal representative. The problem was that the nominated personal representative did not want to serve as personal representative or probate the estate. Why, you ask? Because the nominated personal representative had already received their bequest and saw no reason to probate the parent’s estate for the other named beneficiaries. Moreover, some of the estates property that was devised to the other children was in the hands of third parties that refused to surrender it to the named beneficiary. So what remedies are available to a beneficiary of an estate who is faced with this scenario?

Florida law provides solutions for the appointment of an individual (or entity) to manage an estate when no personal representative is serving. Florida law also gives powers to such person to demand the return of assets removed from an estate. Florida law further provides a means to sue for the value of property that has been converted by a third party (or other beneficiaries) along with damages caused to a decedent’s estate. The only problem is that someone needs to champion the recovery of an estate’s assets or at least sue for the value of the removed property. If the nominated personal representative of a decedent’s Will is unwilling to perform that task or cannot be located then someone needs to step in a take control, otherwise estate assets may be lost forever.

In those situations where there is a likelihood that an estate’s property is in danger of being wasted, destroyed, or removed beyond the jurisdiction of the Court, a person can be appointed by the probate Court to act in the place of a nominated personal representative when no letters of administration have been issued. These persons are called Curators. The Court can give a Curator the same powers as a personal representative or limit such powers to fit the need in the protection of a decedent’s estate. In most situations, the purpose of appointing a Curator is to protect an estate’s assets from being removed and liquidated before a nominated personal representative has received their letters of administration. This often occurs when a Will’s nominated personal representative cannot immediately be found or is avoiding appointment (e.g. being out of the country on vacation or service member serving in a foreign country).

Prior to a Curator being appointed, notice is to be served on the person entitled to serve as personal representative. Letters of administration granting a Curator authority to protect and marshal an estate’s assets will not be issued until such notice is served and the time to respond to such notice has passed (usually 20 days from receipt of the notice). However, if there is an immediate danger to an estate’s property being wasted, depleted or lost and if there would be a delay in appointing a Curator because of having to serve notice on a nominated personal representative, the Court can appoint a Curator without having to wait for service of notice. This might occur when an estate’s assets are being destroyed or removed from the decedent’s residence. It could also occur if an estate’s assets have a limited life (e.g. agriculture crops).

In addition, prior to a Court’s issuance of Letters of Administration, the Curator must post a bond. The value of the bond to be posted is determined by the Court. Once the bond is posted, Letters of Administration can be issued to the Curator giving him or her authority to begin administering the estate and marshalling its assets. When marshalling an estate’s assets, the Curator can take possession or control of the decedent’s property, except the decedent’s protected homestead. The Curator can distribute property (other than homestead) to persons presumptively entitled to it unless possession of the property is needed for purposes of administration expenses or payment of creditor claims. However, be aware that during a Curator’s service, he or she is responsible for administering the estate’s assets in conformance with the decedent’s Will and Florida law. As a result, any misappropriation of the estate’s assets by the Curator may lead to him or her being liable for such misappropriation.

With regard to the recovery of property inappropriately removed from a decedent’s estate by a beneficiary or third party; the Curator can issue a request demanding delivery or the return of any property possessed by a beneficiary or third party not entitled to it. Such request can serve as conclusive evidence that the return of such property is necessary for the purposes of administering the estate. In the event a beneficiary or third party resists the return of estate property following a demand made by the Curator, a lawsuit can be filed for such property’s recovery against the beneficiary or third party who has converted it to their own use.

Returning to the problem that was presented by this author in the opening paragraph of this article, the procedural steps to resolving the problem are: 1) File the Will with the Court; 2) Prepare a petition for administration naming a Curator; 3) Serve notice on the person nominated in the decedent’s Will as personal representative that a Curator may be appointed to act as personal representative; 4) In the event the nominated personal representative does not object to a Curator serving, the prospective Curator should request the Court to appoint the petitioner as Curator; 5) Once appointed, begin demanding the return of assets removed from the estate or make a determination that the person possessing such property is entitled to same and such property is not needed for administration purposes (e.g. payment of expenses or creditor claims); and, 6) If such assets demanded are not forthcoming, initiate a lawsuit for the value of the converted assets and damages.

As you can see, the remedy for preserving an estate from misappropriation sounds simple; however, it rarely is. There are always twists or turns that no one can predict, but at least there is a remedy that is available. If you are a beneficiary of an estate or are aware of assets being removed from an estate, consider talking with the attorney of your choice to discuss what can be done to protect those assets from being lost.

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