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Evidence Required to Determine Possession of Property During Florida Probate

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One of the hallmark principles of estate administration is the personal representative’s right to take possession of all of the decedent’s property during Florida probate.  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.  In the face of this language, disputes 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 Florida probate administration.

How Do You Determine The Right To Property In Florida Probate?

Recently, Florida’s Fourth District Court of Appeals rendered an illuminating opinion setting forth the procedure for adjudicating disputes over possession of property during probate.  In Delbrouk v. Eberling (Fla. 4th DCA 2015), an estate beneficiary and the personal representative were at odds 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.  See Fla. Stat. § 733.607(1).  Over the beneficiary’s request for an evidentiary hearing, the lower court in Delbrouck set both of the above motions for non-evidentiary hearings and ultimately ordered the beneficiary to vacate and surrender all property—other than a piece of property being used as his primary dwelling—titled in the decedent’s name.

Evidence Required For Who Is Entitled To Property During Probate

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 of the property during Florida probate requires an evidentiary hearing.  On appeal, the personal representative argued that her demand for property titled in the decedent’s name could not be contested by a beneficiary, relying on the following statutory language:

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.

Fla. Stat. § 733.607(1).

Personal Representative’s Need vs. Right To Take Possession of Property

The appellate court disagreed, stating that this language merely provides that a personal representative’s statement of need of property is irrefutable but that the right of possession of the property in the first instance is clearly contestable.  In articulating the law, the appellate court referenced the statute’s inclusion of the phrase “conclusive evidence” and the corresponding implication that evidence must be taken to resolve disputes over the right of possession of property during Florida probate.  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.

The Delbrouck opinion is significant in the holding that evidentiary hearings are required to resolve disputes concerning the right to possess property during estate administration.  The opinion highlights a pitfall practitioners face in seeking declarations of such rights without evidence, as any order issued by a trial court in the absence of evidentiary hearing will be subject to the de novo standard of review.  Of added import is the Fourth District’s eloquent distinguishing between a personal representative’s need to take possession of property and a personal representative’s right to take possession of property.

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