Delbrouck v. Eberling

Delbrouck v. Eberling, 177 So.3d 66 (Fla. 4th DCA 2015), 2015 WL 5948724

In this case, one of the sons of the decedent claimed a constructive trust over certain properties titled in the name of the decedent.  The personal representative moved to compel the son to surrender to her the properties and to cease his business activities on the properties.  This decision dealt with whether the probate court was required to hear evidence before directing the son to turn over possession of the property to the personal representative.

The personal representative relied on F.S. 733.607(1), which states that "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."  The Court found that this statute does not mean a personal representative's right to possession of property cannot be contested in a probate proceeding, and found that the term "conclusive evidence" in the statute implies that an evidentiary hearing may be necessary when the right to possession of a decedent's property is genuinely disputed.  

Thus, the Court held that when property is titled in the name of a decedent, but other claims of colorable right to possess the same property exist, the question of who should temporarily possess the property is a factual question that should be resolved by an evidentiary hearing. The Court noted that the probate court has broad discretion to determine the responsibilities of the personal representative and the person claiming the right to possession with respect to maintaining and using the property, and that the probate court has the discretion to craft appropriate conditions, such as the right of the personal representative to inspect and photograph the property and its contents, the right of the personal representative to co-possess the property, the need to insure the property, etc. to deal with these situations.

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