There are situations when a Florida probate is required for certain assets, but a personal representative has not yet been appointed. There may be certain assets that beneficiaries or creditors of the probate estate want to make sure are protected or there may be a business owned and operated by the decedent (person who died) that needs immediate attention. In any probate case, it is typically the personal representative that files the petition for administration and the court will eventually name the personal representative in the letters of administration. What is the beneficiary or creditor to do in the time before a personal representative is appointed?
In these situations, the appointment of a curator by the court may be appropriate. A curator basically is a person in control of a probate estate before a personal representative is able to be appointed. Curators are appointed by the court only if there is some need to have a person in control of estate assets, in order to prevent damage from occurring to beneficiaries or creditors.
Under section 733.501(1), Florida Statutes, “When it is necessary, the court may appoint a curator after formal notice to the person apparently entitled to letters of administration. The curator may be authorized to perform any duty or function of a personal representative. If there is great danger that any of the decedent’s property is likely to be wasted, destroyed, or removed beyond the jurisdiction of the court and if the appointment of a curator would be delayed by giving notice, the court may appoint a curator without giving notice.” Furthermore, a curator is entitled to compensation for his or her services.
An example of the required appointment of a curator is when the marshaling and safekeeping of the decedent’s assets is needed, pending a determination by the court regarding whether the assets are part of the probate estate. In re Estate of Katz, 501 So. 2d 68, 69 (Fla. 3d DCA 1987). In Katz the court determined “The order to ‘turn over’ assets was particularly appropriate in light of allegations that the beneficiary claiming ownership of joint account property adverse to the interests of other beneficiaries was also making distributions of those assets.” Id.
It is also important to remember that a curator cannot be appointed at the same time that a personal representative is appointed. The purpose of a curator is to take care of assets that are assets of the decedent’s probate estate or may be assets of the probate estate before a personal representative is able to be appointed by the court. Gordin v. Estate of Maisel, 179 So. 2d 518, 520-521 (Fla. 4th DCA 2015). “[T]he concurrent service of a personal representative and curator cannot be legally justified.” Id. at 521. A curator has all the powers of a personal representative, which creates an inherent conflict and cannot support the appointment of both at the same time. Id. A personal representative takes precedence over a curator, so once a personal representative is appointed by the court, the curator’s job is over.
From this brief exploration, it is important to remember that a curator is only appropriate before a personal representative is appointed by the probate court. Second, there needs to be an appropriate need for a curator to be appointed before the court will appoint one. There needs to be some pressing need for the preservation and care of assets of the probate estate or assets that may be part of the probate estate.
The determination to request the appointment of a curator in a Florida probate estate is something that an attorney will need to make. If you think that the appointment of a curator may be necessary, you need to act quickly and contact an attorney right away. Contact our firm today to schedule a free consultation to discuss your case.
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