♠ Posted by Marc J. Soss in florida estate planning,florida probate attorney,florida probate lawyer,Last Will and Testament,Revocable Trust,Sarasota attorney at Monday, October 19, 2015
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.”
