Florida/Georgia Personal Injury & Workers Compensation

...did not belong to the estate. [21] See In re Hart's Estate, 51 Cal.2d 819, 337 P.2d 73 (1959) (in bank); In re Sidebotham's Estate, 138 Cal. App.2d 412, 291 P.2d 965 (1956). This duty is part of the general duty of the personal representative under section 733.607, Florida Statutes (1983), to take all steps reasonably necessary for the protection and preservation of the estate....

...tatives of Eastern Air Lines, and possibly to others. My clients request that you obtain a return of these drafts or copies immediately unless the present persons possessing such drafts can establish a proprietary interest. (Emphasis supplied.) [21] Section 733.607, Florida Statutes (1983), provides that a personal representative may bring an action to determine title to property.

...Under Florida law, the only party who has the capacity to sue on behalf of an estate is the duly appointed legal representative of the estate. Tennyson , 477 F. App'x at 611 (citing Brake v. Murphy , 687 So. 2d 842 , 843 (Fla. 3d DCA 1996) ; Fla. Stat. Ann. § 733.607 (1) )....

...lone or in conjunction with any other person, is liable for the expenses of the administration of the decedent's estate and enforceable claims of the decedent's creditors to the extent the decedent's estate is insufficient to pay them as provided in s. 733.607(2)....

...Damian, 723 So.2d 396, 397 (Fla. 4th DCA 1999), may suggest that such a direct action was available, each case's construction of the term "enforceable claims" in reference to a revocable trust's liability pursuant to section 733.707(3) must be read in conjunction with section 733.607(2). Section 733.607(2) entitled the personal representative to payment from a trust described in section 733.707(3) if the estate assets were insufficient to pay the expenses of administration and enforceable claims of the decedent's creditors. The trust's liability under section 733.707(3) to pay the expenses of administration and enforceable claims of the decedent's creditors in the event of an insufficiency of estate assets was established by express reference to section 733.607(2)....

...5th DCA 1989) (noting, "[h]omestead property, whether devised or not, passes outside of the probate estate"); Cavanaugh v. Cavanaugh, 542 So.2d 1345, 1352 (Fla. 1st DCA 1989) (holding transfer of probate jurisdiction to circuit court did not change law that homestead is not asset of probate estate). See also § 733.607(1), Fla....

...Such a result is contrary to Snyder, which prohibits a forced sale of protected homestead property to satisfy a general devise of cash. Florida's statutory scheme and cases from other Florida district courts of appeal support the result we reach today. Section 733.607, Florida Statutes (2004), provides that the personal representative takes possession or control of the decedent's property, except for protected homestead....

...Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995); Sanchez v. Solomon, 508 So.2d 1264 (Fla. 3d DCA 1987). We note that the record reflects that there is no sworn testimony to rebut the P.R.'s verified petition that established a clear legal right pursuant to section 733.607(1), Florida Statutes (1997), to recover possession of estate property, or to support Alfredo Patrone's claim to the stock certificates....

...The function of the temporary injunction the P.R. requested below was not to determine the ownership of the subject stock but merely to preserve the asset pending the outcome of that determination. This is consistent with the P.R.'s clear legal right under Florida's Probate Code, section 733.607(1) to "take all steps reasonably necessary for the management, protection and preservation of the estate until distribution." Thus, the lower court erred in denying the temporary injunctive relief requested in the P.R.'s Emergency Amended Petition for Recovery of Property....

...(2003) (defining "protected homestead" as "property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner's surviving spouse or heirs under s. 4(b), Art. X of the State Constitution"); § 733.607(1), Fla....

...Article XII of Edith's will is an administrative provision declaring how she wished her devises to abate to pay the expenses of her estate—if the devises were probate assets. In this case, at least one of those devises—Edith's devise of her residence—was homestead property. It was never a probate asset. See § 733.607(1), Fla....

...ale provision in a will to overcome a "protected homestead" challenge: Florida law specifically provides that homestead property is not subject to the administration of the court unless the will specifically requires that the property be sold. See §§ 733.607-608 Fla....

...defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration and obligations of the decedent's estate to the extent the decedent's estate is insufficient to pay them as provided in s. 733.607(2). Here, the trust was revocable. Even had the trust instrument been silent, the trust would have borne the responsibility of payment to the extent that the estate has no money to pay. Section 733.607(2), Florida Statutes, referenced in the statute above, states "the personal representative is entitled to payment from the trustee of a trust described in s....

...In this case, BankAtlantic’s possessory and contractual rights to setoff are impaired by the transfer to a different bank. 2 Reversed and remanded, with directions to order the return of the transferred funds (and any interest earned on such funds while in the transferee bank’s possession) to BankAtlantic. . § 733.607(1), Fla....

...[4] A personal representative may invoke the jurisdiction of the court to resolve judicial questions about an estate or its administration, section 733.603, Florida Statutes (1985), and may maintain an action to determine title to or recover possession of property, section 733.607, Florida Statutes (1985)....

...Nolan's life. It is the general duty of the personal representative to settle and distribute the estate. See § 733.602, Fla. Stat. (1993). The personal representative has specific statutory authority to recover estate assets and determine title to them. See § 733.607(1), Fla....

...Nowhere in Chapter 733 is there an indication that a personal representative has an unrestricted right to use estate assets as his own. [2] According to the chapter, the personal representative "shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution." § 733.607, Fla....

...The surcharge was imposed as a result of her mismanagement of Estate property during her service as the Estate's personal representative. The surcharge order inured to the Estate's benefit. As such, the personal representative is the proper party to bring an action on the Estate's behalf. § 733.607, Fla.Stat....

...lone or in conjunction with any other person, is liable for the expenses of the administration of the decedent's estate and enforceable claims of the decedent's creditors to the extent the decedent's estate is insufficient to pay them as provided in § 733.607(2)....

the decedent’s property, except the homestead. § 733.607, Fla.Stat. (1981). The powers of the representative

...s, because the estate was an intended beneficiary of the trust, in that the. trust was required to pay the expenses of probate administration upon the settlor’s death. Id. at 207-08 . The personal representative had notified the trust, pursuant to section 733.607(2), Florida Statutes, of the insufficiency of the estate to pay the expenses....

...Constitutional Reference [No Change] Statutory References § 731.104, Fla. Stat. Verification of documents. § 731.201(29)(31), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla. Stat. Devise of homestead. § 733.607, Fla....

...probate court has inherent jurisdiction to help the personal representative marshal and preserve the property pending a determination of ultimate ownership as of the date of death. Estate of Barsanti v. Cypen, 773 So.2d 1206 (Fla. 3d DCA 2000); see § 733.607, Fla....

...Rule History 1984 Revision: New rule. 1988 Revision: Editorial change in (a). Subparagraph (b)(4) amended to conform to constitutional change. Committee notes revised. Citation form change in committee notes. Statutory References F.S. 732.4015 Devise of homestead. F.S. 733.607 Possession of estate....

...Rule History 1984 Revision: New rule. 1988 Revision: Editorial change in (a). Subparagraph (b)(4) amended to conform to constitutional change. Committee notes revised. Citation form change in committee notes. Statutory References F.S. 732.4015 Devise of homestead. F.S. 733.607 Possession of estate....

...Constitutional Reference [No Change] Statutory References § 731.104, Fla. Stat. Verification of documents. § 731.201(3133), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla. Stat. Devise of homestead. § 733.607, Fla....

...e X, section 4 of the Florida Constitution. The jurisdiction of the court to determine constitutional homestead property was established by In Re Noble’s Estate, 73 So.2d 873 (Fla.1954). Rule History 1984 Revision: New rule. Statutory References F.S. 733.607 Possession of estate....

...any business activities on the properties. She alleged he was operating an unlicensed business. Her motion was set for hearing on the judge’s motion calendar. The appellant then moved the court to authorize occupancy by the beneficiaries. He cited section 733.607(1), Florida Statutes (2014), which provides in part, “[A]ny real property or tangible personal property may be left with, or surrendered to, the person presumptively entitled to it unless possession of the property by the personal r...

...g any evidence. See Lebioda v. Gastroenterology Grp., 544 So. 2d 242 (Fla. 5th DCA 1989) (reversing order granting preliminary injunction where appellant was denied due process by not being allowed to present all his witnesses). The PR relies on section 733.607(1), Florida Statutes (2014), which provides as follows: (1) Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent...

...partially performed, and thus were enforceable, the probate court erred in ordering that the administrator take possession without affording an evidentiary hearing on the factual issues which would determine the right of possession. Id. at 66. We agree with the appellant that section 733.607 does not eliminate the need to take evidence where a colorable factual issue exists over the right to possession of property, even if titled in the name of the decedent.3 See id.; see also Buchanan v....

...§ 731.104, Fla. Stat. Verification of documents. § 731.201(33), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. - 17 -  § 732.4015, Fla. Stat. Devise of homestead. § 733.607, Fla....

...oundation”), Gislhaine Whyte, Mario Simmen, Paul-Marie Jacques and Elizabeth Schwartz (collectively the “defendants,” not including Schwartz). 1 Count IV is a claim by the plaintiffs against the Foundation and its trustees pursuant to sections 733.607(2) and 733.707(3), Florida Statutes (2003), for payment to Anna Bronner’s estate due to insufficient funds in the estate to pay the expenses of administration and the obligations of the estate....

...On May 27, 2003, a final judgment on the pleadings was entered against Myers, as personal representative, awarding AMP, as assignee, $193,651,984.06 against the ancillary estate of Anna. After the ancillary estate judgment was entered, AMP and Thomas Myers sought statutory contribution to the estate pursuant to sections 733.607 and 733.707, Florida Statutes (2001), from the Foundation. In order to recover payment, plaintiffs brought this present action to enforce stat *349 utory contribution under the 2001 versions of these two statutes. However, the Foundation asserted in its motion to dismiss that the 1999 versions of section 733.607 and 733.707 2 , which were in effect at the time of Anna’s death in 1999, apply and that plaintiffs failed to state a cause of action for statutory contribution pursuant to the 1999 versions....

...ntive law and therefore should be applied retroactively. Myers asserts that if the 2001 versions applied, then the 2003 judgment would be considered an obligation of the estate which is to be paid by the decedent’s trust. Under the 1999 version of section 733.607(2), if the assets of the estate are insufficient to pay the expenses of the administration of the decedent’s estate and enforceable claims of the decedent’s creditors, then the personal representative is entitled to payment from the trustee of the trust for those specific items....

...those rights have vested. Nor may the legislature increase an existing obligation, burden or penalty as to a set of facts after those facts have occurred.” Bitterman v. Bitterman, 714 So.2d 356, 363 (Fla.1998) (citation omitted). The amendment to section 733.607(2) changing “enforceable claims of the decedent’s creditors” to “obligations of the decedent’s estate” increases the trust’s obligation to the personal representative....

...4 (Fla.2004) (citation omitted). Plaintiffs allege that the defendants were unjustly enriched by failing to make *351 their statutory contribution to Anna’s ancillary estate. Because there is no “enforceable claim” against the defendants under sections 733.607(2) and 733.707(3), they have not been unjustly enriched by their failure to contribute funds to satisfy the estate judgment....

...chment. The trial court properly dismissed with prejudice the unjust enrichment claim. Affirmed. TAYLOR and LEVINE, JJ., concur. . Whyte, Simmen, and Jacques are trustees of the Walanpatrias Foundation. . The 1999 versions of these sections provide: 733.607(2) If, after providing for statutory entitlements and all devises other than residuary devises, the assets of the decedent’s estate are insufficient to pay the expenses of administration of the decedent's estate and enforceable claims of th...

...or in conjunction with any other person, is liable for the expenses of the administration of the decedent's estate and enforceable claims of the decedent’s creditors to the extent the decedent’s estate is insufficient to pay them as provided in s. 733.607(2). . The 2001 versions provide: 733.607(2) If, after providing for statutory entitlements and all devises other than residuary devises, the assets of the decedent’s estate are insufficient to pay the expenses of the administration and obligations of the decedent’s estate, the p...

...n paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration and other obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them as provided in s. 733.607(2)....

...ined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration and obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them as provided in s. 733.607(2). Section 733.707(3) references section 733.607(2)....

...Those claims and causes of action against the grantor shall be presented and enforced against the grantor’s estate as provided in part VII of chapter 733, and the personal representative of the grantor’s estate may obtain payment from the trustee of a trust described in s. 733.707(3) as provided in ss. 733.607(2), 733.707(3), and 737.3054(1)....

...Constitutional Reference Art. X, § 4, Fla. Const. Statutory References § 731.104, Fla. Stat. Verification of documents. § 731.201(29), Fla. Stat. General definitions. *877 § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla. Stat. Devise of homestead. § 733.607, Fla....

...eeds in escrow. 2 We therefore reverse for the trial court to énforcé the Global Settlement. 3 " As .to the second issue, Julian contends that, because the ward has died, the ward’s estate should take control of the ward’s property pursuant to section 733.607(1), Florida Statutes (2016)....

...If a beneficiary or other person has possession of estate property and will not return it voluntarily, the personal representative is entitled to maintain an action, in the nature of replevin, to recover possession of the property or to determine the title to it. § 733.607, Fla....

...The father complains that the court was without jurisdiction to make the extension of time contingent upon the return of the *787 motorcycle. However, probate courts have the power to help marshall assets of an estate and to order those assets turned over through a personal representative. § 733.607, Fla....

...ainst the Plaintiff. . Cal.Civ.Code, § 700. Future interests; possibilities. A mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind. . Fla.Stat. § 732.514. . Fla.Stat. § 732.101(2). . Fla.Stat. § 733.607....

...Constitutional Reference Art. X, § 4, Fla. Const. Statutory References § 731.104, Fla. Stat. Verification of documents. *1130 § 731.201(29), Fla. Stat. General definitions. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla. Stat. Devise of homestead. § 733.607, Fla....

...Inheritance per stirpes. § 732.401, Fla. Stat. Descent of homestead. § 732.4015, Fla. Stat. Devise of homestead. § 732.702, Fla. Stat. Waiver of spousal rights. § 732.7025, Fla. Stat. Waiver of homestead rights by deed. § 733.607, Fla....

...her and husband, Joe Parker, Sr. (the “decedent”). Appellants have appealed the trial court’s final order dismissing their complaint with prejudice for failure to join the decedent’s estate as an indispensable party to the action pursuant to section 733.607, Florida Statutes....

...er that appellants join the estate in the suit. Another three years went by until September 2013, when appellees filed a motion to dismiss for failure to join the estate. Appellees argued that the decedent’s estate was an indispensable party under section 733.607, and that appellants lacked standing for failure to join it in the action....

...2006)). “Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder.” Citibank, N.A. v. 2 Villanueva, 174 So. 3d 612, 613 (Fla. 4th DCA 2015) (quoting Hertz Corp. v. Piccolo, 453 So. 2d 12, 14 n.3 (Fla. 1984)). Section 733.607 provides, in pertinent part: (1) Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the...

...The personal representative shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it. § 733.607(1), Fla....

...2d 846, 847 (Fla. 2d DCA 1960) (entertaining suit by decedent’s sister to void deed on the grounds that decedent executed it as a result of undue influence). By contrast, appellees have provided no authority supporting the proposition that under section 733.607 a decedent’s estate is an indispensable party that must be joined in a suit seeking to set aside inter vivos conveyances due to alleged undue influence....

... Here, Lanford concedes that Schell, as Decedent’s sister and the testamentary trust’s beneficiary, was Decedent’s heir for purposes of homestead protections.6 When protected homestead7 property is devised to an heir, it passes outside of the probate estate. See § 733.607(1), Fla....

...The court noted that the function of the temporary injunction was not to determine the ownership of the stock but to preserve the asset pending the outcome of that determination, consistent with the duty of the personal representative to marshal and preserve the assets of the estate for distribution. See id. at 1209 ; § 733.607(1), Fla....

...der of the court, for the best interest of interested persons, including creditors. Fla. Stat. § 733.602(1). [21] He was required to "take all steps reasonably necessary for the management, protection, and preservation of the estate...." Fla. Stat. § 733.607(1)....

...The Debtor was obligated to expeditiously and efficiently settle and distribute the estate of the Decedent in accordance with the terms of the Will pursuant to Florida Statute Section 733.602(1). He was obligated to manage, protect, and preserve the estate pursuant to Florida Statute Section 733.607(1)....