Do a Florida Personal Representative’s Powers Relate Back To Acts Prior To Appointment?

In Estate of McKenzie v. Hi Rise Crane, Inc. an August 19, 2021 opinion from Florida’s First District Court of Appeal, the Court reversed the decision of the Judge of Compensation Claims and held that a petitioner’s appointment as Florida personal representative after filing a petition for benefits does relate back to the filing of the petition.

The Facts Of Estate of McKenzie v. Hi Rise Crane, Inc.

Before decedent Ronald McKenzie died in August 2018, he filed petitions for benefits (PFBs) through his attorney. The attorney dismissed the PFBs after decedent’s death.

In January 2020, the attorney filed a PFB on behalf of Terry McIntosch, in her capacity as personal representative of decedent’s Florida estate.  McIntosch was not the personal representative at the time of filing.  Attached to this PFB was a copy of a combined certificate of good faith and “fraud acknowledgement” signed by decedent in February 2018 and attached to the earlier PFBs filed before decedent died.

After filing the PFB, McIntosch petitioned the circuit court for appointment as personal representative.  She was appointed as personal representative in July 2020.

The Employer/Carrier (E/C) moved to dismiss the pending PFB alleging that, because McIntosch was not the personal representative when she filed the PFB, it was a nullity, and asserting that the PFB was statutorily non-compliant because McIntosch was not the one who signed the attached acknowledgement.

McIntosch then moved to amend the PFB contending her appointment as Florida personal representative should relate back to the January 2018 filing date, which was just before the statute of limitations ran.  McIntosch accompanied the motion with an amended PFB, attached to which was an acknowledgement signed by her.

The Judge of Compensation Claims dismissed McIntosh’s petition, finding that her appointment as Florida personal representative after filing the PFB did not relate back to the filing.

Florida Probate Code Section 733.601

Section 733.601 of the Florida Probate Code states:

The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.

Can You File a Petition For Benefits Before Being Appointed As Personal Representative?

Yes, you can file a petition for benefits before being appointed as personal representative of an estate, because your appointment will relate back to the filing. The Florida First District Court of Appeals held:

[S]ection 733.601, Florida Statutes (2020), provides that a personal representative’s powers “relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.” See also Cunningham v. Florida Dep’t of Child. & Fams., 782 So. 2d 913, 916 (Fla. 1st DCA 2001) (holding “when letters of administration are granted, they relate back to the intestate’s or testator’s death”) (citing Griffin v. Workman, 73 So. 2d 844 (Fla. 1954)). In Cunningham, we further held that, if a personal representative is improperly appointed and a substitute is later named, the second appointment relates back to the original complaint and the substituted personal representative may go forward with the action. Id. “It follows, from the fact that the plaintiff can amend to reflect his capacity as personal representative, that claims which are properly recoverable by the personal representative . . . will also relate back.” Id. (quoting Talan v. Murphy, 443 So. 2d 207, 209 (Fla. 3d DCA 1983)).

Here, McIntosch was prematurely identified as personal representative in the PFB because she had not yet attained that status. Logically, therefore, applying section 733.601 and the rationale in Cunningham requires that McIntosch’s appointment in July 2020 related back to January 2020 when the PFB was filed.

The Florida appellate court held that the JCC erred by dismissing the PFB.  While it is probably better practice to obtain appointment as personal representative before filing claims in your capacity as personal representative, sometimes you do not have a choice but to file (such as when you are faced with a looming statute of limitations).  A Florida personal representative’s powers will relate back to acts beneficial to the estate which occurred prior to appointment.

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