Can a Palm Beach probate distribute non-Florida real estate? July 15, 2015 4th DCA estate appeal

Can a Delray Beach personal representative of a Florida estate get a  Florida probate court to divide and distribute real estate, real property, located outside of Florida?  Not in Florida’s 4th District Court of Appeal.  If you are involved in a Florida estate which has out of state, non-Florida assets likereal estate located outside of Florida, and you want to “probate it”, that is, divide it and distribute it, you should read this July 15, 2015 Palm Beach estate appeal case.  You can divide the non-Florida real estate here in Delray Beach probate court, but you  can’t distribute it.  But wait…. I thought a Florida probate court could order the personal representative of the Palm Beach estate do any number of things?  To consider this Florida probate issue, consider the following:

Can a Palm Beach probate dispose of out of state real estate?

• On July 15, 2015, Florida’s 4^th District Court of Appeal issued its opinion in Brown v. Brown, No. 4D12-2446, which was an appeal from the Probate Court (Probate Division) in Delray Beach, Palm Beach County, Florida.
• The Brown decision, authored by 4^th DCA Judge Jonathan Gerber, recites what many Palm Beach probate attorneys already know: the general and overly-broad maxim that a Florida probate court does not have jurisdiction over the descent or distribution of real property which is located outside of the state of Florida. To deal with the non-Florida real property, personal representatives of Florida estates need to “go to” the state where the real property is located and “open up” an ancillary estateadministration proceeding.
• This rule of estate administration is in line with general legal principles of Florida law when it comes to whether a Florida court has subject matter jurisdiction over, or whether venue is proper regarding, real property. The “local rule” or the “local action rule” requires a plaintiff to file an action regarding real property in the county where the real property is located.

But, does the Brown opinion confuse the Florida probate lawyer and perhaps conflict with other existing Florida caselaw on the administration of Florida estates?

• In Brown, the 4^th DCA reversed the probate court’s final order directing a personal representative to divide and distribute a decedent’s assets which included Georgia real property and other assets.
• While the 4^th DCA’s opinion suggests that the Delray Beach probate court had jurisdiction (legal authority) to order the personal representative to divide the decedent’s assets among the estate beneficiaries, there was no jurisdiction or authority to command the personal representative to distribute the Georgia real estate.
• Isn’t the Florida personal representative subject to the commands and orders of the probate court?
• Can’t the probate court judge command the personal representative to do any number of things, and by doing, so, indirectly affect the Georgia real estate?
• Put another way, can’t the probate court’s jurisdiction over the personal representative, be “enough” to indirectly affect the Georgia real estate without requiring the Delray Beach personal representative to “go to Georgia”, hire a Georgia probate lawyer, and incur the time, cost and legal fees of an ancillary Georgia probate proceeding? Not in the 4^th District.

Does a Florida probate court have authority to order a personal representative to deal with out of state estate property?

• But what about Florida’s 5^th District, specifically in light of the first Hirchert case?Hirchert v. Hirchert Family Trust, 988 So. 2d 63.
• Florida’s Hirchert case (the first one, not Hirchert Family Trust v. Hirchert, 65 So. 3d 548 (rehear. den. July 19, 2011) ) is thought of among probate litigators Florida as standing for the trust maxim that a trustee should not treat trust assets as his or her own.
• A distribution (taking?) of trust real property in violation of the trust document terms caused a California judgment to be domesticated to Florida.
• In Hirchert, the 5^th DCA agreed with the trial court’s analysis that while jurisdiction exists over real property only in the circuit where the land is situated, there are other ways to skin that cat. How?
• Well, evidently that rule does not apply where a party seeks equity such as a resulting trust or a constructive trust as long as the court has personal (in personam) jurisdiction of the parties before the court.
• If the court has jurisdiction over, say, a Florida Trustee, the analysis goes, then by commanding the trustee to “do” or refrain from doing, certain things, the Florida court may indirectly affect the real property at the heart of the controversy.
• While the 5^th DCA concedes that a court of one state does not have the power to directly affect the title to land physically located in another state, a court of equity withauthority over a person, may indirectly affect real estate located elsewhere.
• But what about personal representatives who are trying to distribute non Florida real estate? Brown suggests that the reasoning of Hirchert doesn’t work in Florida’s 4^thDistrict, and that the personal representative needs to open an ancillary.

Want to read more about Delray Beach estates and Palm Beach probates?

Here is a free copy of the Brown opinion: http://www.4dca.org/opinions/July%202015/07-15-15/4D12-2446.op.pdf