Florida Probate Statute 733.607: Possession of Estate
If you are interested in petitioning the probate court to be appointed as the personal representative of a loved one’s estate, it is important that you understand the responsibilities that go along with the job. The personal representative must inventory assets in the estate, pay estate debts, and distribute the property in the estate to the beneficiaries or heirs. Before the personal representative can complete any of these tasks, he (or she) must take possession of the estate. If you have questions about the responsibilities of a personal representative with respect to the assets of a decedent’s estate, including the requirements of Florida Statutes, section 733.607- Possession of estate, contact a skilled Fort Lauderdale probate lawyer at the Law Offices of Stephen Bilkis & Associates who understandings Florida probate law and can help you with the estate administration process.Possession of Estate
Once the personal representative has received letters of administration from the probate court, he can move forward with the tasks required to settle the decedent’s estate and distribute the assets. The first step is for the personal representative to take control of the assets in the probate estate. The appointed personal representative has the right to take possession of or control of the decedent’s property. In fact, according to Florida Statutes, section 733.607- Possession of estate, the personal representative must take control of such property. It is acceptable for the property that was gifted to a specific beneficiary to be transferred to that beneficiary. However, if the personal representative needs the property for a legitimate reason related to the administration of the estate, the beneficiary must surrender it.
Taking control of estate assets means more than locating them and physically possessing them when possible. It also involves safeguarding them. For personal items of value, such as jewelry or cash, the personal representative should put them in the place where they can not be taken. For real estate, the personal representative should make sure it is secure and maintained. He should also continue to make mortgage payments and pay property taxes to avoid penalties or default. For cars and other vehicles, the personal representative must make sure that they are secure. In other words, the personal representative must take reasonable steps to ensure that estate property is not damaged, wasted, or stolen so that the value of the estate decreases. As an experienced Fort Lauderdale probate lawyer will explain, if the personal representative fails to take proper control over estate property, he make face personal liability over an losses suffered by the estate as a result.Probate Assets
The personal representative’s authority is limited to property that is part of the decedent’s probate estate. Generally speaking, probate property is property owned by the decedent individually and property that does not have a designated beneficiary.
Real property. Real property owned in severalty- solely owned by the decedent, or real property owned by the decedent as a tenant in common.
Personal property. Personal property that would be probate property includes clothing, jewelry, vehicles, and life insurance proceeds that is payable to the decedent’s estate.
Debts owed. Debts owed to the decedent is considered probate asset. This would include mortgages, promissory notes, loans, rents, income tax refunds, interest, and royalties.
Government benefits. Government benefits and payments including Social Security, Railroad Retirement, and Veterans Administration benefits are probate assets.
Lawsuit awards. Money damages from civil lawsuits such as personal injury claims are probate assets.Non-Probate Assets
Property that is not subject to the probate court administration proceedings and over which the personal representative does not have control includes the following.
Joint tenancy property. Real or personal property that is owned and held in joint tenancy, tenancy by the entirety with the right of survivorship is not probate property.
Living trust property. Property that the decedent transferred during his lifetime to a living trust is not probate property. It will be transferred to the beneficiaries of the trust according to the terms of the trust document.
Pay-on-death accounts. Money or securities that are in a pay-on-death (POD) or transfer-on-death (TOD) is not probate property. It will be transferred to the stated beneficiary upon the death of the account owner.
Life insurance proceeds. Proceeds of life insurance policies payable to named beneficiaries and not the decedent’s estate are not probate property. The proceeds will go to the named beneficiaries outside of probate.
Retirement benefits. Retirement benefits with a named beneficiary that is not the estate are not probate assets. This would include IRAs, 401(k) plans, ESOPs, and self-employed retirement plans.
If you are unsure whether a specific piece of property is a probate asset, an experienced probate attorney in Fort Lauderdale can help.Related Statutory Provisions
- General power of the personal representative: § 733.608, Fla. Stat.
- Improper exercise of power; breach of fiduciary duty: § 733.609, Fla. Stat.
- Sale, encumbrance, or transaction involving conflict of interest: § 733.610, Fla. Stat.
- Persons dealing with the personal representative; protection: § 733.611, Fla. Stat.
- Transactions authorized for the personal representative; exceptions: § 733.612, Fla. Stat.
- 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, but any real property or tangible personal property may be left with, or surrendered to, the person presumptively entitled to it unless possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration, in any action against the beneficiary for possession of it. 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.
- If, after providing for statutory entitlements and all devises other than residuary devises, the assets of the decedent’s estate are insufficient to pay the expenses of the administration and obligations of the decedent’s estate, the personal representative is entitled to payment from the trustee of a trust described in s. 733.707(3), in the amount the personal representative certifies in writing to be required to satisfy the insufficiency, subject to the exclusions and preferences under s. 736.05053. The provisions of s. 733.805 shall apply in determining the amount of any payment required by this section.
The job of personal representative can be challenging. It is important that he understands the specifics of what the law requires. Otherwise, the personal representative may unintentionally damage the estate and face personal liability. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing personal representatives, beneficiaries, heirs, and other parties in matters related to the administration. If you have questions related to the duties and authority of a personal representative, including the application of Florida Probate Code, section 733.607- Possession of estate to your specific situation, we can help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.