Sec. 733.607, Fla. Stat. reads in relevant part:
Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead….The personal representative shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it.
The probate court has inherent jurisdiction to monitor the administration of an estate and to take such appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries. See, In Re: Estate of Barsanti, 773 So. 2d 1206 (Fla. 3rd DCA 2000); Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004) quoting, Estate of Conger v. Conger, 414 So. 2d 230, 233 (Fla. 3d DCA 1982).
A probate court has the authority to issue temporary injunctions freezing assets claimed to belong to a decedent’s estate, even though ultimate ownership of those assets may be in dispute. See, Markowitz v. Merson (the function of the temporary injunction was not to determine the ownership of the stock but to preserve the asset pending the outcome of that determination, consistent with the duty of the personal representative to marshal and preserve the assets of the estate for distribution).
A temporary injunction is properly granted where: (1) immediate and irreparable harm will otherwise result, (2) the moving party has a clear legal right thereto, (3) the movant has no adequate remedy at law, and (4) where the public interest will not be disserved. See, Fla. R. Civ. P. 1.610; Burtoff v. Tauber, 85 So. 3d 1182 (Fla. 4th DCA 2012); Net First Nat’l Bank v. First Telebanc Corp., 834 So. 2d 944 (Fla. 4th DCA 2003); In Re: Estate of Barsanti, supra. Clear, definite, and unequivocally sufficient factual findings must support each of the four criteria before the court may enter the injunction. See, Net First Nat’l Bank v. First Telebanc Corp., 834 So. 2d 944 (Fla. 4th DCA 2003) quoting, Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 824 So. 2d 226 (Fla. 4th DCA 2002).
IRREPARABLE HARM: Irreparable harm for the purposes of an injunction is not established where the harm can be compensated for adequately by money damages. “Even where the party seeking injunctive relief alleges that the opposing party may dissipate bank assets, a judgment for money damages is adequate and injunctive relief is improper, notwithstanding the possibility that a money judgment will be uncollectible.” Weinstein v. Aisenberg, 758 So. 2d 705 (Fla. 4th DCA 2000).
BOND: Additionally, pursuant to Fla. R. Civ. P. 1.610(b), no temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined. However, no bond shall be required for issuance of a temporary injunction issued solely to prevent physical injury or abuse of a natural person. But See, Guardianship of Brown, 611 So. 2d 1342 (Fla. 4th DCA 1993) (no bond was required because the assets in question are indisputably owned by the ward and the only issue is whether those assets are subject to the provisions of one or more trust agreements).
NO NOTICE: A probate court has the inherent power to enter a temporary injunction without notice. In addition to the four requirements enumerated above, an injunction without notice may only be issued where: (1) immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; (2) the movant’s attorney certifies in writing any efforts that have been made to give notice; and (3) the reasons why notice should not be required are stated. Fla. R. Civ. P. 1.610(a)(1). To justify issuance of a restraining order without notice, a motion seeking ex-parte relief must demonstrate (1) how and why the giving of notice would accelerate or precipitate the injury or (2) that the time required to notice a hearing would actually permit the threatened irreparable injury to occur. See, City of Boca Raton v. Boca Raton Airport Auth., 768 So. 2d 1191(Fla. 4th DCA 2000); Lieberman v. Marshall, 236 So. 2d 120 (Fla. 1970). Courts have upheld ex parte temporary injunctions where notice of a hearing will: (a) prompt a defendant to destroy records, (b) cause unsecured assets to be liquidated in the context of a fraudulent enterprise, (c) precipitate the disposal of the major asset of a partnership subject to an accounting, or (d) permit a husband in a dissolution action to transfer over $8,000,000 from a joint, marital account while forging the signature of the wife. See, City of Boca Raton v. Boca Raton Airport Auth., 768 So. 2d 1191 (Fla. 4th DCA 2000). Whether the injunction was entered with notice or without notice will influence who has the burden at the motion to dissolve the injunction. See, Department of Community Affairs v. Holmes Cty, 668 So. 2d 1096 (Fla. 1st DCA 1996); City of Ormond Beach v. City of Daytona Beach, 794 So. 2d 660 (Fla. 5th DCA 2001).