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What is a Florida Estate Conservator, and Why is the Florida Probate Court Appointing One?

Uncategorized Jan 12, 2016
post about What is a Florida Estate Conservator, and Why is the Florida Probate Court Appointing One?

Has the Florida court appointed an estate conservator? How is that  different then the personal representativeof a Florida estate? More importantly can you sue the conservator for breach of fiduciary duty like you can a personal representative? What about suing the conservator’s attorney for legal malpractice? Check out this recent probate appeal from California to learn more. 

What is an Estate Conservator

  • One goal of a Florida estate conservator is to conserve or protect the estate.
  • Florida estates and probates are a bit different than other states’
  • From Boca Raton to Delray Beach to Orlando, Florida estate attorneys know that the role of a fiduciary may have many names, but similar purposes
  • For example, in Florida, we have curators and temporary executors or trustees pendente lite or administrators ad litem
  • These fiduciaries are all required to handle certain legal matters, like an estate or trust, and to gather assets, account for them, deal with creditors or lawsuits, and then distribute money or property according to a will or trust or order from a Palm Beach probate judge
  • Some states call these fiduciaries by other names, including conservator
  • These are usually elected to take care of financial matters while the case is going through Florida probate litigation or estate litigation.
  • Why would the estate need a conservator during estate litigation Florida?
  • Keep in mind that an estate is not just personal property like a jewelry collection.
  • Probate litigation in Florida can take years.
  • What happens when the estate has real property?
  • Who is in charge of paying the real estate tax?
  • Who hires a care taker to make sure that the grass gets watered?
  • Florida estate attorneys know that without this the real estate could be foreclosed and become useless.
  • What about the financials?
  • Florida probate lawyers and the personal representative may not be versed in handling the stocks of the estate.
  • This is why your Florida probate attorney may be asking the Court to appoint a conservator.
  • Like a personal representative, a conservator owes a fiduciary duty to the estate.
  • That means that a will contest lawyer may be able to sue them for breach thereof.
  • But what about the conservator’s Florida probate attorney?
  • Can he be sued for malpractice by estate beneficiaries?
  • Check out this interesting case to start finding an answer.

Stine v. Dell’Osso

  • In this case a conservator of the estate was bringing suit against the previous conservator’s attorney for failing to prevent that conservator from misappropriating (i.e. stealing) assets.
  • Does the attorney have a duty to do that in Florida during probate litigation?
  • The Court had previously dismissed the case under a theory that can be well… hard to swallow.
  • Since it was technically the conservator who stole (although it was not plaintiff conservator it was the previous conservator) the trial court held that under something known as the doctrine of unclear hands, the conservator could not sue the attorney.
  • The doctrine of unclean hands basically says if you did something dirty in the transaction then you lose the right to ask the Court to fix the situation.
  • The Court held on appeal that doctrine did not apply, arguably because this was a different conservator.
  • Do you agree with that result?
  • Should a conservator’s attorney be liable when a conservator steals assets?

Before you make up your mind you may want to read more.

Check out a free copy of Stine v. Dell’Osso by clicking here. 

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