Relation Back Of Personal Representative’s Powers

Post death, certain activities may be needed to preserve the assets of the decedent’s estate and arrange for the decedent’s funeral and burial [§497.005(43)(a)] prior to the appointment of a personal representative (“PR”). The necessity to undertake these pre-administration activities is recognized by §733.601, F.S. which validates the activities of the PR prior to his/her appointment. This statute reads: “The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.” [Emphasis added]. The following cases are instructive:

In Berges v. Infinity Insurance Co., 896 So. 2d 665 (Fla. 2004), Berges was the defendant in a wrongful death action. After receiving an adverse jury verdict that substantially exceeded his policy limits, Berges sued his insurance company claiming it had acted in bad faith by failing to settle or to advise him of a settlement offer made by the decedent’s husband. The jury agreed with Berges, finding that the insurance company acted in bad faith, and the trial court entered an amended final judgment in favor of Berges, which the insurance company appealed. On appeal, the Second District reversed, finding that, since the decedent’s husband had not been appointed as PR when he offered to settle the case, he was without the authority to make a valid settlement offer. The Second District found that the insurance company, therefore, as a matter of law, could not have acted in bad faith in failing to advise Berges of the offer. The Florida Supreme Court, however, reversed the Second District rejecting its conclusion that a settlement offer for a wrongful death claim is not valid if the person who made the offer has not yet been appointed as a PR. The court explained that: “the statutory scheme governing estates anticipates valid negotiations prior to court involvement. Specifically, the legal acts of a personal representative relate back after court appointment, thereby validating the previous acts of the personal representative on behalf of the estate. Thus, the statutory schemes governing both minor and estate claims contemplate the completion of settlement negotiations prior to court approval. This scheme is consistent with the purposes of settlement, which are to simplify and shorten litigation, save costs to parties, and ease the burden on the courts by obviating the necessity of trial.” The Florida Supreme Court, therefore, concluded that the Second District erred in determining that the decedent’s husband did not make a valid offer to settle the case.

In Depriest v. Greeson, 213 So. 3d 1022 (Fla. 1st DCA 2017), the court found that the PR had no legal duty to prevent the decedent’s daughter from using the decedent’s car after his death and prior to his appointment. Thus, plaintiffs could not demonstrate implied consent, which was an essential element of their claim under the dangerous instrumentality doctrine, following the decedent’s daughter getting into a motor vehicle accident with them.

In Estate of Harrison, 2010 Bankr. LEXIS 306 (Bankr. M.D. Fla. 2010), the debtor was a United States citizen who owned assets in Florida and the United Kingdom. Almost two years after his death, counsel sent a letter to one of his English creditors disclosing Florida real estate. One day after the expiration of the two-year non-claim period under §733.710, the debtor’s son filed to open a probate in Florida and was appointed PR. The creditor filed an involuntary bankruptcy case in England against him. The debtor was declared “bankrupt” under English law and a trustee was appointed. The Florida court held that prior to his appointment, the PR had no fiduciary relationship with the English creditors and had no duty to notify them of the Florida legal structure or their opportunity to open a probate estate or file a claim. It was not a breach of duty for him to keep his silence for two years and a day. The existence of a Florida asset was disclosed before the expiration of the two-year period, and it was incumbent on the English creditors to familiarize themselves with Florida law, open a probate, and file a claim. In addition, the court rejected the fraudulent transfer and equitable lien claims.

In McKenzie v. Hi Rise Crane, Inc., 2021 Fla. App. LEXIS 12192 (Fla. 1^st DCA 8/19/21), the decedent filed a petition for benefits (“PFB”) resulting from a worker’s compensation claim. The PFB was voluntarily dismissed shortly after the decedent’s death in 2018 and was re-filed in 2020 by the designated personal representative (“PR”) under the decedent’s will. The PR was appointed by the probate court six months later. The employer moved to dismiss the pending PFB alleging that the PR had not been appointed by the court at the time she re-filed the PBF and the statute of limitations has run on the claim. In response, the PR moved to amend the PFB contending her appointment as PR should relate back to the original filing date. The JCC rejected the PR’s relation back argument on procedural grounds. The appellate court, in reversing the JCC, reasoned in relevant part as follows: “In rejecting the relation back doctrine, the JCC relied on Rogers v. Concrete Sciences, Inc., 394 So. 2d 212 (Fla. 1st DCA 1981). In Rogers, the E/C made a settlement offer, and the claimant died a few days later without having accepted it. Shortly after the claimant died, his attorney accepted the offer and, when the E/C declined to follow through with the settlement, moved to enforce it. We held that the claimant’s death terminated the attorney-client relationship and extinguished the attorney’s authority to accept the E/C’s offer. Id. at 213. Thus, in Rogers we affirmed the JCC’s denial of the motion to enforce. Id. But here, Busch filed the January 2020 PFB on behalf of McIntosch as personal representative of decedent’s estate, not on behalf of decedent, and so Busch did not act beyond his authority. Finally, although McIntosch was not yet personal representative at the time of filing, section 733.601, Florida Statutes (2020), provides that a personal representative’s powers “relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.” See also Cunningham v. Florida Dep’t of Child. & Fams., 782 So. 2d 913, 916 (Fla. 1st DCA 2001) (holding “when letters of administration are granted, they relate back to the intestate’s or testator’s death”) (citing Griffin v. Workman, 73 So. 2d 844 (Fla. 1954)).”

In Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016), the decedent passed away and his surviving spouse (Karen) and his son (Joel) filed a petition for administration. One day prior to the court’s order appointing Karen and Joel as co-PR’s, Karen and Joel signed and published the first notice to creditors. Both signed the notice as PR. Thereafter, more than three months after the first notice to creditors was published, Karen filed a statement of claim and a petition for declaration that her claim was timely, or in the alternative, to extend the time to file her claim based on estoppel or insufficient notice. Both Joel and a beneficiary objected to Karen’s claim on the basis that it was not timely filed. Karen later filed an amended petition for a declaration that her claim was timely filed or, in the alternative, to extend the time to file her claim. She asserted in relevant part that the notice to creditors was null and void because it was not published by a duly appointed PR as required by Florida law due to the fact that she and Joel were not appointed until the day after the notice was published. The appellate court held that the relation back doctrine applied to the PR’s act of publishing the notice to the creditors, and that the order appointing PR relates back and validates the pre-appointment act of publication of the notice to creditors.

In Talan v. Murphy, 443 So.2d 207 (Fla. 3d DCA 1983), a father instituted a wrongful death action for the loss of his minor son without being appointed as PR. After the statute of limitations had expired, the father procured appointment as PR, and in this capacity, filed an amended complaint in behalf of his son’s estate and on behalf of himself and his wife, individually, and as survivors of their son. The trial court entered a final summary judgment in favor of the defendants on the grounds that the amended complaint was barred by the statute of limitations because it was not filed by the PR within two years of the child’s death. The appellate court reversed, finding that the alterations to the complaint relate back to the original filing. The court noted that when the father assumed the responsibility of bringing the action without having the appointment, he did so as an executor de son tort. Further, said the court: “When he was later appointed executor, his letter related back to the death of the intestate and his acts as executor de son tort were thereby validated insofar as they were acts he could have performed had he been duly qualified as a personal representative.”

In Univ. of Miami v. Wilson, 948 So. 2d 774 (Fla. 3rd DCA 2006), the designated co-PR’s were appointed after they sent a pre-suit malpractice notice to the University. The court found that the PR’s powers related back to the date of appointment and that a representative had the power to ratify acts done prior to appointment. The court reasoned in part as follows: “As the Florida Supreme Court has held [in Berges v. Infinity Insurance Co] that the relation back doctrine applies to settlement offers made by individuals prior to their appointments as personal representatives, we reject the University and the dissent’s argument that the University could not settle the claim with Ms. Wilson and Ms. Salmon because when they submitted their presuit notice, they had not yet been appointed personal representatives of the estate. Under Berges, an agreement to settle between the University and Ms. Wilson and Ms. Salmon could have been held in abeyance and could have been validated upon their subsequent appointment as personal representatives. Thus, we conclude that the purpose of promoting settlement, which underlies the presuit notice requirement, was served by the notice filed in the instant case.”