PROBATE CORNER

By: David M. Garten, Esq.

Part II: In Florida, Does A Personal Representative Have Standing To Challenge The Surviving Spouse’s Claim As An Omitted Spouse?

  1. FLORIDA STATUTES:
    A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. See §733.602(1), F.S. Pursuant to §736.0803, F.S., if a trust has two or more beneficiaries, the trustee shall act impartially in administering the trust property, giving due regard to the beneficiaries’ respective interests. There is no “good cause” provision in either the Probate Code or the Trust Code.
  2. CASE LAW:
    As a general rule, it is neither appropriate nor proper for a personal representative (“PR”) to take an affirmative position for or against any faction claiming a right to the estate of a deceased where all of the potential heirs of the estate are before the court. It is the responsibility of the various claimants to establish their own rights in the estate. Under such circumstances the PR is, in effect, a nominal party in order that he may be kept advised of the progress of the proceedings and be bound by the judgment of the court determining the proper heirs of the estate. SeeIn re Estate of Lynagh, 177 So. 2d 256 (Fla. 2nd DCA 1965); Barnett v. Barnett, 340 So. 2d 548 (Fla. 1st DCA 1976) (While the trustee in his fiduciary capacity was required to do something more than stand on the sidelines and watch, it was not his duty to take a partisan stance and argue the side of one or more of the claimants. In order that the trustee might discharge his fiduciary responsibilities it was his duty to participate in the investigation of the claims, secure relevant documents and procure other evidence). See
    A PR had no standing to contest a will under which she held her appointment, and she was immediately disqualified from continuing in that capacity when she filed suit and contested part of the will. See In re Estate of Lewis, 411 So. 2d 368 (Fla. 4th DCA 1982).
    A PR is required by law to pursue assets and claims of the estate, with value, including those assets which are in the hands of a former PR or her or his agents. As a result, a successor PR may bring a cause of action for legal malpractice against an attorney hired by her or his predecessor to provide services necessary to the administration of the estate. See Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014).
    The person named as PR in an earlier will had standing as an interested person to contest a later will which named someone else as a PR. See Engelberg v. Birnbaum, 580 So. 2d 828 (Fla. 4th DCA 1991).
    A PR has standing to file a complaint for declaratory relief which sought a declaration that, pursuant to §689.07(1), F.S. titled ““Trustee” or “as trustee” added to name of grantee, transferee, assignee, or mortgagee transfers interest or creates lien as if additional word or words not used”, six parcels of real property titled in the name of “Norman Giller, Trustee” were actually owned in fee simple by the decedent as of the date of his death, and that the properties became the assets of the estate subject to probate administration as of the date of his death. See Giller v. Giller, 190 So. 3d 666 (Fla. 3rd DCA 2016).
    A PR has no standing to invoke Fla. Const. art. X, §4(c) [homestead] for the protection of either creditors of the estate or heirs who are not surviving spouses or minor children. However, a PR does have standing to obtain a court order expressly approving a transfer of homestead property in order to establish clear title to the property. SeeIn re Estate of Morrow, 611 So. 2d 80 (Fla. 2nd DCA 1992).
    The PR is the only party with standing to bring a wrongful death action to recover damages for the benefit of the decedent’s survivors and the estate [§768.20, F.S.]. See Heiston v. Schwartz & Zonas, LLP, 221 So. 3d 1268 (Fla. 2nd DCA 2017).
    An alternate PR under a prior Will and a co-successor trustee under a prior trust may have standing to contest a later will. See Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008).
    A PR has standing, as an interested person, to file a motion for appointment of a trustee of a residuary trust for which she was not a trustee but a contingent remainder beneficiary. See Barley v. Barcus, 877 So. 2d 42 (Fla. 5th DCA 2004).
    A PR for the ward’s estate has standing to file objections to a guardian’s post-death final report and petition for discharge. See Sun Bank & Trust Co. v. Jones, 645 So. 2d 1008 (Fla. 5th DCA 1994).
    A PR lacks standing to seek to disqualify an attorney who never represented the PR and did not gain an informational advantage from the PR’s confidences. See Anderson Trucking Serv. v. Gibson, 884 So. 2d 1046 (Fla. 5th DCA 2004).
    When the language used in the will does not clearly and definitely express or convey the testator’s intent, the PR has a right to judicial construction of the will. See Douglass v. Griggs, 374 So. 2d 1097 (Fla. 1st DCA 1979).
    Fla. Probate Rule 5.360. Elective Share and Pre Existing Dower. The Committee Notes read in relevant part:It is intended that the role of the personal representative in this procedure would be as a neutral. Since he is a fiduciary owing duties to all interested persons, it is not appropriate that he should take a position for or against the award of the elective share and expend estate funds in that regard. See Barnett v. Barnett, 340 So.2d 548 (Fla. 1st DCA 1976); In re Estate of Lynagh, 177 So.2d 256 (Fla. 2d DCA 1965). However, the personal representative is not prohibited from advancing a position regarding the timing of payment or the assets to be used to satisfy the elective share or other such issue relating directly to the administration of the estate and is not intended to favor one beneficiary over another or over the surviving spouse. A personal representative as a fiduciary has a duty of full disclosure to all interested persons and the court, for instance regarding knowledge of the existence of a marital agreement or other relevant facts. The committee offers no opinion on whether a personal representative may have a duty to oppose the entitlement to the elective share based on the existence of an apparently valid marital agreement.
  3. ADMINISTRATOR AD LITEM
    An administrator ad litem is a court-appointed advocate for the interests of an estate, where those interests are jeopardized, and where the acting PR will not or cannot defend them. SeeWoolf v. Reed, 389 So. 2d 1026 (Fla. 3rd DCA 1980); See also Fla. Prob. R. 5.120(a) which reads in relevant part: “When it is necessary that the estate of a decedent…be represented in any probate…proceeding and there is no personal representative of the estate…, or the personal representative… is or may be interested adversely to the estate…, or is enforcing the personal representative’s… own debt or claim against the estate…, or the necessity arises otherwise, the court may appoint an administrator ad litem…without bond or notice for that particular proceeding.”PRACTICE POINTER:
    In Florida, a PR does not have standing to defend against the surviving spouse’s petition as an “omitted spouse” when other beneficiaries opposing the petition. As a result, it will be necessary to appoint an administrator ad litem to defend against the petition. However, if the sole beneficiaries of the estate are unnamed charitable beneficiaries, the PR may have standing to defend against the petition as long as the Attorney General does not oppose the PR’s position and there is “good cause” to oppose the surviving spouse’s petition.