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Florida Personal Representatives and Curators Cannot Serve Concurrently

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In Gordin v Estate of Shelley, the Florida personal representatives of the estate of Shelley Wilensky appealed the Florida probate court’s order appointing a curator for the estate, without the personal representatives’ letters of administration being revoked or suspended.

Ori Gordin and Teresa Shelley (Decedent’s grandson and daughter, respectively), were appointed as the co-personal representatives of Decedent’s estate.  Decedent’s will was admitted to probate in Florida.  Decedent’s son, Daniel, petitioned to revoke Decedent’s will on numerous grounds.  Daniel filed a petition for administration of an earlier Puerto Rican Will and sought to have the Florida probate administration transferred to Puerto Rico.  Daniel also filed a petition to remove the Florida personal representatives and for the appointment of a curator.

After a non-evidentiary hearing, the Florida probate court appointed a curator for the estate. The order appointing curator did not address the previously issued letters of administration, thus leaving the letters of administration in place.  The order stated:

NOW, THEREFORE, I, the undersigned Circuit Judge, do grant [Curator’s name], the curatorship of the Estate, with full power of a personal representative to administer the estate according to law, to collect and preserve the assets that belonged to the Decedent in his lifetime, at the time of his death and as collected by his Estate, and to ask, demand, sue for, recover, receive and sell these assets for the Estate; and all persons in possession of assets of the Decedent and records of the Estate are ordered and directed to deliver them to [Curator’s name], as Curator.

The Florida personal representatives appealed the order, arguing that it is legally improper to simultaneously have a curator and a personal representative acting on behalf of the estate.

The Florida appellate court agreed with the personal representatives, looking at case law, the Florida Probate Code, and the Florida Probate Rules to reach the holding that curators and personal representatives cannot serve concurrently.

Florida Probate Curators Are Generally Appointed When A Fiduciary Is Needed To Take Charge of Estate Assets

First, the Florida appellate court looked at In re Estate of Miller.  The Miller court stated that “[a]lthough the circumstances calling for the appointment of a curator are not specified in the statute, a typical situation is where there is a delay in the appointment of a personal representative and a fiduciary is needed to take charge of the estate assets.” In Miller, the court reversed an order appointing curator, reasoning that a pending petition to appoint a personal representative should have been resolved before considering the appointment of a curator.

Florida Probate Code Definitions of “Curator” and “Letters”

Second, the Florida appellate court examined the Florida Probate Code. Section 731.201(8) defines a “curator” as “a person appointed by the court to take charge of the estate of a decedent until letters are issued.”

“Letters” are defined as “authority to act on behalf of the estate of the decedent and refers to what has been known as letters testamentary and letters of administration.  Section 731.201(24).

These definitions in the Florida Probate Code show that the legislature intended that a curator be appointed prior to the issuance of letters of administration to a personal representative.  In the instant case, however, the curator was appointed after the personal representatives were appointed and after letters of administration were issued, at a time when much of the estate remained to be administered.

First Comes The Curator, Next Comes The Personal Representative

Finally, Florida Probate Rule 5.122(e) states: “ When the personal representative is appointed, the curator shall account for and deliver all estate assets in the curator’s possession to the personal representative within 30 days after issuance of letters of administration.”  This rule demonstrates that the role of a personal representative is supposed to come after the role of curator in an estate administration.

Florida Personal Representatives and Curators Cannot Serve Concurrently

The Florida appellate court noted that the concurrent service of a personal representative and curator could not be legally justified, stating:

In viewing the powers  and duties of the personal representatives and the curator, the reason that the concurrent representation is not only problematic, but legally unjustifiable, is clearly seen.

Since the curator in the instant case was given the “full power of a personal representative,” which is specifically authorized by section 733.501(1), Florida Statutes (2014) (“The curator may be authorized to perform any duty or function of a personal representative.”), there is an inherently conflicting scenario created when both a curator and a personal representative are simultaneously authorized to act on behalf of the estate. An intolerable situation is created because two representatives with logically speaking different functions (hence the difference in title), separate but equal, have virtually the same power to exert over an estate. In such situations, neither the heirs nor the creditors have a clear understanding of who is in control of the estate.

Also, a “never-ending, and insatiable, transfer loop between the curator and the personal representatives” was created: “the trial court’s order requires possessors of assets of the estate (the personal representatives) to give the assets to the curator, and the rules require the curator to give possession of these same assets to the personal representatives.”

The Florida appellate court was careful to note that a situation could exist in which a curator could be appointed after the appointment of a personal representative, such as after removal of a personal representative or after temporary revocation or suspension of the letters of administration issued to a personal representative.  But in this case, without the temporary or permanent revocation or temporary suspension of letters issued to the personal representatives, the appointment of the curator was in error.

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