Gordin v. Estate of Maisel

Gordin v. Estate of Maisel, 179 So.3d 518 (Fla. 4th DCA 2015), 2015 WL 7566353

This decision centers around whether a probate court can appoint a curator without revoking the prior appointment of personal representatives.  The Court held that it was improper for the probate court to do so.

The probate court admitted the decedent's will to probate, appointing his daughter and grandson as co-personal representatives of the estate.  The decedent's son filed a petition for revocation of the will, claiming that he was entitled to a forced share of the estate because the decedent lived in Puerto Rico when he died, that the decedent lacked testamentary capacity and was subject to undue influence when he executed the will, and that he had three previous wills.  The son also filed a petition for administration seeking to admit one of those previous wills to probate, and a petition to remove the personal representatives and appoint a curator.

Without hearing evidence, the probate court appointed an attorney as curator.  The letters of curatorship gave the curator the full powers of a personal representative.  The personal representatives appealed, arguing that it was legally improper for the probate court to simultaneously appoint a curator and a personal representative to act on behalf of the estate.

The Court agreed with the personal representatives.  It noted that while there is little guidance in the law regarding when a curator should be appointed, the few cases and statutes that do exist are instructive in this situation.  The 1st DCA in In re Estate of Miller noted that a typical situation in which a curator is appointed is where there is a delay in the appointment of a personal representative. Similarly, F.S. 731.201 defines a "curator" as "a person appointed by the court to take charge of the estate of a decedent until letters are issued."  Further, FPR 5.122(e) provides instructions for a curator to account for and deliver estate property to the personal representative.  Thus, the role of the personal representative is intended to succeed the role of the curator in the administration of the estate.

The Court also found that the simultaneous appointment of a curator and a personal representative created an inherently conflicting scenario in which two persons have virtually the same power to exert over the estate.  The curator was not appointed to serve as a joint personal representative, in which case the law provides instructions as to how decisions are to be made.

Ultimately, the Court noted that the probate court has the authority to remove a personal representative and appoint a curator to serve until a successor personal representative can be appointed, however, where the personal representatives are not temporarily removed and their powers are not temporarily suspended, a curator cannot be appointed.

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