Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.


During the Florida probate administration the personal representative may take possession of all of the decedent’s property.  Fla. Stat. § 733.607(1).  However, this provision of the Probate Code also provides that such property can be left with the person presumptively entitled to it.  As a result, it is very common for disputes to arise as to (i) whether property is, in fact, the decedent’s property; and (ii) whether someone other than the personal representative has a right to possession of the property during administration.
Florida’s Fourth District Court of Appeals recently addressed this issue in Delbrouck v. Eberling, et al., __ So.3d __ (Fla. 4th DCA 2015). In Delbrouck, an estate beneficiary and the personal representative argued over the right to possess certain real property in the decedent’s name while estate administration was pending.  The personal representative filed a motion seeking surrender of the assets in question because the assets were titled in the decedent’s name.  The beneficiary countered by moving for authorization to occupy the properties, arguing that the Probate Code provides for a person presumptively entitled to possession of property to retain possession (Fla. Stat. § 733.607(1)). 
On appeal, the Fourth District reversed, holding that where a claim of possession is made on property titled in the decedent’s name, the determination as to who is entitled to temporary possession during probate requires an evidentiary hearing.  The appellate court reasoned that if “ownership of an asset can be contested during probate, it cannot be the case that a personal representative’s assertion of the right to possession can never be challenged.”