Richard v. Richard,  — So.3d —-, 2016 WL 2340787 (Fla. 3d DCA May 04, 2016)

looking-back
The “relation back” doctrine enjoys virtually unanimous application throughout the fifty states, and dates back, by some accounts, more than 500 years. See generally, Relation back of letters testamentary or of administration, 26 A.L.R. 1359 (1923).

Just because someone’s Will says you’re their personal representative (PR) doesn’t make it so. First, you’re not a PR until a judge says you are. Second, you don’t have to take the job; you can always say no. And if something goes wrong in the interim, you’re not on the hook; you have zero fiduciary duties to anyone until after a court appoints you PR (see here).

What’s the “relation back” doctrine?

But what if the testator’s died and something needs to get done before a judge gets around to appointing a PR? Say a bill needs to get paid before the power’s shut off, or a house needs to get sold before a sale contract’s breached, or a lawsuit needs to get filed before a limitations period is blown. What then? Think “relation back” doctrine. Under this doctrine anything you do on behalf of an estate gets validated after the fact once you’re appointed PR (see here).

Getting stuff done during the gap period between the day a person dies and the day his PR gets appointed is a problem that’s been around for a long time, and the relation back doctrine is a fix that’s been around just as long. According to the 3d DCA:

The relation back doctrine enjoys virtually unanimous application throughout the fifty states, and dates back, by some accounts, more than 500 years. See generally, Relation back of letters testamentary or of administration, 26 A.L.R. 1359 (1923).

The doctrine’s codified in section 3-701 of the Uniform Probate Code, which in 1974 was adopted almost verbatim as section F.S. 733.601 of Florida’s Probate Code. The Florida statute currently provides as follows:

Time of accrual of duties and powers.—The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.

Note the difference between the first and second sentence of the statute. A PR’s “duties” kick in once he’s appointed (first sentence), but his “powers” relate back prior to his appointment (second sentence). This distinction’s at the core of the 3d DCA’s ruling in this case.

Case Study:

In this case a $4 million creditor claim was filed against an estate over three months after the “notice to creditors” was first published, which means the claim was time barred under F.S. 733.702. But what if the notice to creditors wasn’t validly published? Then the time-bar defense vanishes, and the $4 million claim springs back to life. So was it valid? Claimant said NO; because under F.S. 733.2121 only a PR can validly publish a notice to creditors, and the order appointing the PR in this case was entered one day after the notice was first published.

But what about the relation back doctrine? Claimant argued it didn’t apply because publishing a notice to creditors is a “duty” — not a “power” — and duties only kick in after the PR’s appointed, they don’t relate back. Clever argument, but did it work? NOT with the 3d DCA. Here’s why:

Although the statute provides that the “powers … relate back in time,” the same sentence goes on to clarify that they relate back “to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.” § 733.601 (emphasis added). Therefore, it is the acts of the person, who is later appointed personal representative of the estate, taken before his or her actual appointment that are granted “the same effect as those occurring after appointment,” so long as those acts are beneficial to the estate. Id. Certainly one cannot have the duty to act unless one also has the power to act. Taking the instant case as an example: implicit in the nature of the duty to publish a notice to creditors is the existence of the power to publish the notice to creditors . . .

In addition, the publication of the notice to creditors can reasonably be described as both a duty and a power of the personal representative. The personal representative is the only person authorized to publish a valid notice to creditors and the personal representative is obligated to publish the notice promptly. See § 733.2121(1), Fla. Stat. (2012). Thus, to the extent [claimant’s] proposed construction of section 733.601 is plausible, the “act” of publishing a notice to creditors, prior to the order appointing personal representatives, was validated by the relation back doctrine.

According to the 3d DCA, not only was the claimant’s statutory construction argument flawed textually, it also failed the “what’s practical” test.

Were we to adopt [claimant’s] construction of the statute, it would create significant and substantial uncertainty for a personal representative, who would now be required in each instance to determine whether the act undertaken is considered to have been taken pursuant to a “duty” or a “power” such that the former would not relate back but the latter would. This would be in conflict with the duties of a personal representative to “settle and distribute the estate of the decedent … as expeditiously and efficiently as is consistent with the best interests of the estate,” § 733.602(1), and to “promptly publish a notice to creditors.” § 733.2121. . . .

We hold that the relation back doctrine, codified in section 733.601, applies to the personal representative’s act of publishing the notice to the creditors, and that the order appointing personal representative relates back and validates the preappointment act of publication of the notice to creditors. We reverse the orders on appeal and remand this cause to the trial court for further proceedings with this opinion.

So what’s the takeaway?

Anything you do before a PR gets appointed that benefits an estate is subject to after-the-fact validation by a court-appointed PR under the relation back doctrine, as codified in F.S. 733.601. And it doesn’t matter if the thing that needed getting done is called a “duty” or a “power”, it’s all the same under F.S. 733.601. I like it; nice clear rules are good for all concerned.