Can a Personal Representative Sell Freely Devisable Homestead Property?
Harrell v. Snyder, 2005 WL 2899461 (Fla. 5th DCA Nov. 4, 2005)
In this case, the decedent had divorced his wife several years before his death, but never got around to changing his will. So when he died, his ex-wife became personal representative of his estate under the terms of his last will (although she was deemed to have predeceased him for purposes of the will's dispositive provisions). The decedent was not survived by any minor children and had not remarried prior to death, so his homestead property was freely devisable . . . or was it?
Brevard County Judge Kerry I. Evander ruled that the personal representative had the authority to both take control of the freely-devisable homestead property and to sell it. The Fifth DCA disagreed, holding as follows:
- Under F.S. § 733.608(2), a trial court MAY authorize a personal representative to take possession of homestead property to preserve it for the heirs.
- This same statute does NOT grant to a personal representative the power to sell such property.
Bottom line, in the absence of specific instructions authorizing the personal representative to sell freely-devisable homestead property, such property passes to the residuary beneficiaries of the decedent's estate. In an opinion I wrote about here, the Florida Supreme Court provided the following directive regarding the sale of freely-devisable homestead property:
We therefore . . . hold that where a decedent is not survived by a spouse or minor children, the decedent's homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.
This case (Harrell v. Snyder) seems to be an example of the right result based on (at least partly) the wrong reasoning. It is unfortunate that the court relied on the recent holdings in McKean v. Warburton and Mahaney v. Keefe. In both those cases the respective courts were misdirected by arguments citing the inability of a PR to sell protected homestead, instead of focusing on how a will having multiple types of devise should work when protected homestead is the only asset passing by will. There has been more than a little criticism of the Supreme Court's opintion in McKean, and it is currently the subject of a motion for rehearing. The decision of the 2nd DCA in Mahaney has also been accepted for review by the Supreme Court, and in that case (arising out of a summary administration proceeding) there was not even a PR appointed. Hopefully the Supreme Court will take the opportunity to clarify the law in this area soon, before these decisions become any more engrafted into our decisional law.
Cord,
I agree, and stated many of your same points myself when I previously wrote about the 2nd DCA decision in Mahaney on this blog. As I see it, there are two fundamental policy goals driving Florida's testamentary homestead laws: (i) keeping homestead property away from creditors, and (ii) preserving homestead property for surviving spouses and minor children. Neither policy goal is furthered when a preresiduary devisee (who may have been the decedent's closest relative or friend) is disinherited because the decedent (who is not survived by a spouse or minor child) dies owning a home, but little else. For example, if a Florida widower with no minor children dies owning a $200,000 home and $100 in his checking account, he would never expect that the his $50,000 pre-residuary devise to the one nephew that always took care of him and visited every Christmas would be ignored as a matter of law in the absence of special authorizing language. Cutting that nephew out of the estate in no way furthers the creditor protection Florida law affords to homestead property or preserves the homestead property for minor children and surviving spouses.
Juan.