Brothers fight over Florida Estate

In January 2010, a Florida father of adult children died. He was a Florida resident, he had a Florida will, and was not survived by a spouse. For some reason, the probate proceeding in the Florida Circuit Court for the County where this father passed away did not begin until July 2011.

The will of the deceased Florida citizen left some Florida real estate to a son, who was also appointed the Florida personal representative of the Florida estate, “to divide between my heirs, as he sees fit and proper.”  Everything else in the Florida estate, what is called the “residue” of the Florida estate, was to be divided equally among the heirs “as my personal representative sees fit.”

As you can see, this Florida will language gives great discretion to the personal representative of the Florida estate to divide property of the deceased Florida resident. In Florida probate circles, one issue that often comes up Florida wills like this one, is whether the inheritance is valid or not, whether the gift under the will is and “outright” inheritance, subject to the discretion of the son, or whether it is a gift in trust. Needless to say, it would appear to be a best practice for Florida probate lawyers to avoid granting such discretion to a personal representative, or a family member. It appears that it would be easier, from both a probate administration standpoint, and a Florida probate litigation standpoint, to merely determine, in the will , who specifically gets what property or what interest. Some Florida probate litigators might suggest that having a provision in a Florida will which gives a beneficiary the authority to divide estate assets among other beneficiaries invites needless litigation in a Florida probate court.

Later that year, two of the beneficiaries, who are brothers of the Florida personal representative, objected to the conduct of the Florida personal representative. The two brothers claim that their other brother, the personal representative, had been disposing of Florida estate assets and was not accounting for the value of those assets or any sale proceeds. What was interesting was there was no order by the Florida probate court which addressed the two brothers’ complaint against the personal representative.

About a month later, the two brothers were not done. They filed their own petition to “construe” the will and to “determine beneficiaries.” The two brothers raised a number of points, including who, which Florida beneficiary, was to receive the real property in the estate. Specifically, the two brothers complained that their other brother, the personal representative, wanted to keep an entire parcel of Florida real estate for himself.

A hearing took place but evidently there was no court reporter there because there was no transcript of what occurred, what was said at that hearing.  Most Florida probate trial lawyers, as a best practice, have a court reporter at every hearing. Nonetheless the probate court issued an order construing the will the following year, 2012. In that order, the Florida probate court found that a 6.25 acre piece of Florida real property was to be given to a grandchild. The grandchild was a child of one of the two brothers who is complaining about the conduct of the personal representative.

The Florida appeals court, that handled the appeal for this probate case, reversed the probate court’s order construing the will. Since the probate court never issued an order admitting a will to probate, there was no will to construe. The order construing the Florida will was, to say it politely, premature. An important part of Florida estate law is that a will may not be construed, or interpreted, until the will has been admitted to Florida probate. There is a statute in the Florida probate code which says this, section 733.213. The order issued by the probate court evidently misstated the name of the deceased Florida resident. It’s always good to know who the dead guy is, and whose money and Florida estate you are fighting over. Additionally, evidently the order from the probate court did not have an explanation why the granddaughter should receive a distribution of 6.25 acres of Florida real property, from the estate. Generally, orders from probate courts in Florida must contain findings of fact and conclusions of law. To determine who beneficiaries are under a will, a Florida probate court must make a finding that the will that is submitted to probate is unclear, and that a doubt exists. Evidently there was no such finding by the Florida probate court. Anytime a Florida probate court permits a distribution of an estate asset in a manner which is not called for by a Florida resident’s last will, there must be some finding, some judicial declaration, some written explanation based on evidence.  This is where Florida probate law coincides with Florida trial Law. Where the Florida probate rules coincide with the Florida rules of civil procedure and evidence.  In this particular case, we are dealing with Florida probate and estate Law, overlapping with Florida appellate law.

Finally, a very important point about a Florida will which leaves estate property to a person, but with  an express request, or intent, that that person will honor the request of the deceased Florida resident: under these circumstances the person who is to receive the property is the beneficiary of that property. Put another way, if you leave  property under a Florida will to someone with a wish or instruction that that person may distribute the property any way he or she likes, that person gets that property. The only exception to that is if there are conditions placed on that inheritance. If a Florida will leaves some property to a person and merely says “it’s my wish that you give it to my heirs as you see fit”, all that person is required to do is give it to an heir. If the person they received that is, himself, an heir, he can keep it. As long as there is no condition or restrictions in the will. Authority, or power, under a Florida will to divide properties as you see fit can include no division at all. If the other heirs disagree with the way the person is dividing the property, they are probably out of luck. The only exception to this would be if the terms of a Florida will require consent or permission from other people.

For those readers who have a similar case, or for those Florida probate lawyers or beneficiaries who are involved with a will or trust that permits or instructs somebody to divide or give away property as they see “fit”, you should consider reading this very recent case, as well as the other Florida probate cases cited by this appellate court. If you would like a complete copy of the opinion please email Michelle@pankauskilawfirm.com.