In re Estate of Faskowitz, __ So.2d __ (Fla. 2d DCA Mar 31, 2006)
The decedent left no surviving spouse or lineal descendants. At a hearing on a petition for determination of heirs, Highlands County Probate Judge J. David Langford ruled that the petitioners were the decedent’s paternal heirs, and thus entitled to one-half of the estate. So far, so good. The probate court then went on to rule that because no evidence had been presented by the alleged paternal heirs that no maternal heirs existed, one-half of the estate would be held by the clerk of the court in accordance with 2005->Ch0733->Section%20816#0733.816″>F.S. § 733.816 for the unknown maternal kindred, where presumably it would escheat to the State if no maternal heirs claimed the funds within the 10-year claims period. This is where the probate court got it wrong.
The Second DCA reversed the probate court’s ruling regarding the half of the estate set aside for the decedent’s maternal kindred, providing the following excellent summary of the statutory framework governing unclaimed assets in Florida probate proceedings:
Under section 2005->Ch0732->Section%20103#0732.103″>732.103(4)(c), “[i]f there is no paternal kindred or if there is no maternal kindred, the estate shall go to such of the kindred as shall survive.” Pursuant to this provision, in the absence of any maternal kindred of Irving Faskowitz, his paternal kindred– namely, the appellant and his sisters–are entitled to inherit the whole estate. The State does not have a right to half of an intestate estate when there are lawful heirs under section 2005->Ch0732->Section%20103#0732.103″>732.103. The two specific provisions of the Florida Probate Code governing the escheat of estate property–sections 2005->Ch0732->Section%20107#0732.107″>732.107 and 2005->Ch0733->Section%20816#0733.816″>733.816–do not in any way displace the rule of descent set forth in section 2005->Ch0732->Section%20103#0732.103″>732.103(4)(c).
Section 2005->Ch0732->Section%20107#0732.107″>732.107(1) simply provides that “[w]hen a person leaving an estate dies without being survived by any person entitled to it, the property shall escheat to the state.” [FN1] Here, the paternal kindred have established their status as lawful heirs under section 2005->Ch0732->Section%20103#0732.103″>732.103(4)(c). Accordingly, the predicate for the operation of 2005->Ch0732->Section%20107#0732.107″>732.107(1) –that “a person leaving an estate [has] die[d] without being survived by any person entitled to it”–does not exist in this case.
Similarly, the provisions of section 2005->Ch0733->Section%20816#0733.816″>733.816 concerning the disposition of unclaimed property held by personal representatives do not defeat the rights the paternal kindred here have under section 2005->Ch0732->Section%20103#0732.103″>732.103(4)(c). Section 2005->Ch0733->Section%20816#0733.816″>733.816(1) addresses circumstances where “unclaimed property in the hands of a personal representative … cannot be distributed or paid … because of inability to find [the lawful owner] or because no lawful owner is known.” Neither of these circumstances have been established here. Unless it is shown that there are maternal kindred entitled to inherit from the estate, the paternal kindred are the “lawful owner[s]” of the entire estate. Contrary to the trial court’s ruling, there is nothing in the statutory scheme suggesting that once claimants have established their status as lawful heirs the State is entitled to escheat of a portion of the estate simply because there is uncertainty concerning whether there may be other lawful heirs.
Based on the clear language of the governing statutes, the Second DCA dismissed the probate court’s evidentiary burden-shifting ruling as follows:
Nothing in the case law cited by the appellees undermines this straightforward interpretation of the relevant statutory provisions. The appellees rely primarily on two cases to support the trial court’s ruling. The appellees cite In re Estate of Tim, 180 So.2d 161 (Fla.1965), and In re Estate of Russell, 387 So.2d 487 (Fla. 2d DCA 1980), for the proposition that the paternal heirs had the burden of proving the nonexistence of maternal heirs in order to avoid the operation of the statutory provisions providing for escheat of unclaimed estate property. Neither Estate of Tim nor Estate of Russell supports the position advanced by the appellees.