Suing to Get Your Property Back in a Florida Conversion Lawsuit — what probate litigators need to know

Do you know how to recover property which someone has taken from you in an estate or trust?  A conversion lawsuit may be your way to get your money or property back, but you need to understand these three things from a September 21, 2016 Florida 1st District Court of Appeal opinion. 

How Does a Trustee Recover Money or Property?

Trustees and beneficiaries sometimes have to face, or deal with, what to do when somebody wrongfully took their property.  How do you get the estate or trust property back from someone who took it?

Can my Trustee sue for civil theft in Florida?

• Sometimes, probate lawyers want you to sue for civil theft.  After all, Florida has a specific statute on civil theft http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0772/Sections/0772.11.html.
• But will a civil theft Florida lawsuit work to get your property back?  And, what are the downsides of a civil theft lawsuit?
• Well, you should first know that civil theft requires some sort of felonious intent.
• Did the person who took your money or Florida property intend to commit a crime?
• Second, the burden of proof for a civil theft lawsuit in Florida is “clear and convincing.”
• This is a different burden, or a “higher” burden, of proof than in a typical estate or trust lawsuit, for, say, breach of fiduciary duty or conversion.
• So, before you file a civil theft lawsuit for a beneficiary or a Palm Beach probate, consider reading Florida’s civil theft statute at Florida Statute Section 772.11.
• You should also know about the “demand” provision of this “recover your property” law and the attorneys fees provision in 772.11.

What do I Need to Know About a Conversion Lawsuit?

• Most estate or probate litigators know that a conversion action or lawsuit may need to be filed.
• Conversion is a lawsuit which says that the person who has your money or property improperly has it,or has improperly used it.
• So, how do you get your money back to the estate or probate with a conversion action?
• Well, a twist to the lawsuit happens when the person who has your money or property was once in possession of it properly.
• To get your money or land back, you need to make a demand.
•  Actually this 1st DCA Florida case reminds us that  “before a conversion can occur when a party was previously in rightful possession of another’s property, the following three factors must be present: first, the party in possession must be informed that continued possession of the property is no longer permitted; second, the rightful owner must demand the return of the property; and third, the party holding the property must fail to comply with the demand”
• Here is the link to read the opinion of this First District Court of Appeal case on conversion:  https://edca.1dca.org/DCADocs/2015/5330/155330_DC13_09212016_022047_i.pdf