Is a Florida Estate Vicariously Liable for Damages, When the Daughter of the Decedent Crashes the Decedent’s Car, if There is no Personal Representative Appointed yet?

Is the estate vicariously liable for damages, when the daughter of the decedent crashes the decedent’s car, if there is no personal representative appointed yet? What is Florida’s dangerous instrumentality doctrine? What should Palm Beach trust and estates litigators and probate lawyers know about this doctrine? What does it have to do with Florida probate litigation? A February 21, 2017 First District Court of Appeal opinion discusses this doctrine and a Milton, Florida estate.

Depriest v. Greeson, as Personal Representative of the Estate of Christian W. Schnitzspahn is a recent First DCA opinion. Here, an adult daughter was driving her deceased father’s car when she got into a car accident. The car was not directly left to anyone in her father’s Florida will, and the probate process for his estate had not yet started at the time of the accident. Her father’s will left everything to the daughter and his stepson as co-beneficiaries.

The stepson was named as personal representative in the will, but had not yet been appointed by the probate court. Is the stepson, as nominated personal representative, liable for the accident that the daughter caused while driving the decedent’s car ? The First DCA said no! This is because, although the stepson was the nominated personal representative in the will, he was not yet officially appointed. Therefore, he did not have a duty to prevent the decedent’s daughter from using the decedent’s car. Florida Statute 733.601 states that the personal representative of a Florida estate does not have a duty to act prior to appointment. Specifically, under Florida Probate Code, “acts performed by the person appointed, occurring before appointment and beneficial to the estate, have the same effect as acts taken after appointment.” HOWEVER, Florida law does NOT “impose on the nominated personal representative any statutory duty to act prior to appointment.”

IF the personal representative would have been officially appointed at the time of the accident, the estate may have been vicariously liable, under Florida’s dangerous instrumentality doctrine, for the damages that the daughter caused while driving the decedent’s car. This is because the personal representative would have had the duty to try to prevent the decedent’s daughter from driving the vehicle owned by the estate. For example, he could have removed the keys and car from the daughter’s property, which is where the decedent stored them. However, because no personal representative was officially appointed at the time of the accident, the estate was not vicariously liable. Click here to read the entire case.