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.

Comments

Post a Comment

Popular posts from this blog

Goodstein v. Goodstein

Goodstein v. Goodstein ,  263 So.3d 78 (Fla. 4th DCA 2019) I started this blog in 2013, and this is the first time I have the opportunity to write about a case that I am actually involved in. This case involves a long-running dispute between the father of the decedent, the personal representative of the estate, and the decedent's children, the beneficiaries of the estate (the personal representative's grandchildren). The personal representative appealed a decision by the trial court which required all estate assets to be placed in a restricted depository. Restricted depositories have been common-place in Miami-Dade County for quite some time. Recently, South Palm Beach County has instituted as similar requirement. As a matter of course, all estates opened since the introduction of this policy have been required to place all assets in a restricted depository and assets may only be withdrawn with a court order. Here, the beneficiaries had concerns about their actions a...
Read more

Malleiro v. Mori, Mori and Corallo

Malleiro v. Mori , 182 So.3d 5 (Fla. 3d DCA 2015) This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code. The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and st...
Read more

Cantero v. Estate of Caswell

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, ...
Read more