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Florida Probate Court Can Order Return of Decedent’s Out-of State Real Property

We are often confronted with Florida probate and trust cases that involve out-of-state real property.  For example, a Florida decedent may have owned real property in New York, but shortly before the decedent’s death, an unlawfully procured deed was executed transferring the real property to another person.  Many people assume that if out-of-state real property is involved, that any issues concerning the real property must be addressed by a court located in the other state where the real property is located. This is not true. A distinction is drawn between a court acting on the real property itself, and the court ordering a defendant to take action concerning the real property.  The latter is permitted, the former is not.  In Florida,

[T]he simple involvement of real property in an action does not render that action in rem and subject to the [local action rule]. The rule applies to suits that primarily seek the transfer of title to real property. It does not apply “with its full rigidity to suits in equity,” that may incidentally pass the title to real property in another jurisdiction.

 Luskin v. Luskin, 616 So. 2d 559, 561(Fla. Dist. Ct. App. 4th Dist. 1993) (Internal citations omitted). 

The local action rule dictates that when real property is in controversy, “jurisdictional authority exists over the property only in the circuit where the land is situated.” Ruth v. Dep’t of Legal Affairs, 684 So. 2d 181, 185 (Fla. 1996).   Said another way, when the real property is the primary dispute, and the parties are seeking to act directly on the property or title, the action is classified as in rem, and can proceed only in the circuit and state where the property is located.  Therefore, if a petitioner is requesting partition of land, such a suit must occur in the county where the land is located. 

However, the local action rule does not apply with its full rigidity in suits in equity.  A court of equity can order a person over which it has jurisdiction to convey real property situated in another state.  Hirchert v. Hirchert, 65 So. 3d 548, 551 (Fla. 5th DCA 2011). Because the Florida court has in personam jurisdiction, the court can order a defendant to do something with respect to the land.

This law is important in the context of Florida probate and trust disputes requesting rescission of deeds on the grounds of lack of capacity and undue influence.  These suits are grounded in equity. Therefore, if a defendant in Florida is found to have unlawfully procured a deed transferring out-of-state real property away from a Florida decedent or out of a Florida trust, the Florida court can order the defendant to convey the real property back to its rightful owner.  It is important to request relief requiring the defendant to take action, as opposed to relief directly over the land or title.

Complete Guide to Florida Probate

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