Contested probate proceedings often revolve around conflicting claims to specific property that’s titled in the decedent’s name but claimed by someone else.
If the dispute revolves around the decedent’s homestead property (a common scenario), we’ve developed a good amount of law over the years to guide us in how those cases should be handled. Basically, when it comes to homestead (“the” classic non-probate asset), who gets what is not a probate matter, it needs to be litigated in a separate civil action (see here); and the estate has no business using estate funds to litigate those disputes (see here).
On the other hand, if the property at issue was not the decedent’s homestead property, there’s a lot less guidance on how those claims should be handled by our probate judges, which is why the linked-to case above should be of interest to working probate lawyers.
This case involved the estate of Leon Delbrouck, originally from Belgium, who lived in Ft. Lauderdale since 1966 and owned a successful auto repair business (see here). At the time of Delbrouck’s death one of his sons occupied several parcels of real property that were titled in his father’s name, including a residence and the business. According to son, he and his father had operated the business together since 1977, and he continued to operate it after his father retired. This son claimed a constructive trust in the property, which the estate contested.
Am I entitled to an evidentiary hearing?
Son claimed he was entitled to continue occupying the contested property (and running the business) pending the outcome of his constructive-trust action. In support of his argument son pointed to F.S. 733.607(1), which provides in relevant part as follows:
[A]ny real property or tangible personal property may be left with, or surrendered to, the person presumptively entitled to it unless possession of the property by the personal representative will be necessary for purposes of administration.
The PR countered by arguing that anytime the estate wants to take possession of property titled in the decedent’s name all it has to do is say so, and that’s “conclusive evidence” of its right to possession; end of story, no questions asked. In support of its argument the PR also quoted F.S. 733.607(1), but relied on an alternate sentence, which provides as follows:
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.
If the PR’s argument holds, then who needs courts? That’s not how we adjudicate property disputes, not even in the alternate universe probate proceedings sometimes occupy. So saith the 4th DCA:
The emphasized language establishes that a PR’s need for the property requested for administration of the estate cannot be contested. We do not construe the statute to mean a personal representative’s right to possession or ownership after a decedent’s death cannot be contested in a probate proceeding. The very fact that the statute speaks of “conclusive evidence” implies that an evidentiary hearing may be required when the right to possession of a decedent’s property is genuinely disputed. If ownership of an asset can be contested during probate, it cannot be the case that a personal representative’s assertion of the right to possession can never be challenged. [FN2]
[FN2] Apart from a claim of ownership, a right of possession can arise under other circumstances; for example, a tenancy under a lease.
. . . We agree with the appellant that section 733.607 does not eliminate the need to take evidence where a colorable factual issue exists over the right to possession of property, even if titled in the name of the decedent.
So what’s a judge to do?
If there’s a dispute over who gets to keep certain property owned by the decedent pending the outcome of related litigation, the 4th DCA concluded probate courts should adopt the following procedure (which makes sense to me):
We conclude that, when property is titled in a decedent, but another claims a colorable right to possess the same property, the question of who should temporarily possess the property, pending final resolution of the claim of entitlement, is a factual question that should be resolved by a prompt preliminary evidentiary hearing.
This kind of common sense ruling interpreting a probate statute in a reasonable way, even if the specific text at issue could conceivable be read otherwise, carries a little more weight if appellate courts in other parts of the state have encountered similar situations and come to similar conclusions. Which is why the 4th DCA’s reliance on an analogous opinion by the 3d DCA is so helpful. If you find yourself in this situation it helps to be able to point to multiple appellate opinions standing for the same proposition. Here’s how the 4th DCA summarized its take (and reliance upon) the 3d DCA’s prior holding:
Swartz v. Russell, 481 So.2d 64 (Fla. 3d DCA 1985), is instructive. In Swartz, a decedent’s children and spouse were disputing ownership and possession of real property used in a restaurant business. Id. at 64–65. Because of the conflict and disputes, the administrator ad litem of the estate appointed by the court sought authorization to take possession of all real property, including the restaurant. Id. at 65. One of the sons objected, because he claimed that he had an oral agreement to purchase the business and property from his brother and mother, and he had an oral lease on the property. Id. The trial court ordered the administrator to take possession after a non-evidentiary hearing in which the court concluded that there were no factual issues as to the administrator’s right of possession. Id. The appellate court reversed, concluding that because there were factual disputes as to whether the oral agreements had been partially performed, and thus were enforceable, the probate court erred in ordering that the administrator take possession without affording an evidentiary hearing on the factual issues which would determine the right of possession. Id. at 66.