One of the first duties of the personal representative in a Florida probate administration is to take possession of the assets of the estate of the decedent (the person who passed away). It is the personal representative’s fiduciary responsibility to make sure that the assets of the estate are protected and held for distribution to the beneficiaries of the will, or the heirs of the decedent if there is no will. In this blog post, we will examine the responsibility for the personal representative to take possession of estate assets in a Florida probate administration.
What are the powers of a personal representative to take possession of decedent’s property?
Under section 733.607(1), Florida Statutes, “Except as provided in the decedent’s will, every personal representative has a right to, and shall take possession and 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 the purposes of administration.” Furthermore, if a person or beneficiary is already in possession of property of the estate, under section 733.607(1), “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.” Lastly, “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.
Section 733.607(1) gives the personal representative extensive powers in a Florida probate administration to gather the property of the probate estate. The personal representative can take these actions to take control and possession of the property of the probate estate without permission of the court. In fact, as is set out in section 733.607(1), just the request of a personal representative to another person holding property to turn it over to the estate is conclusive evidence that the property is property of the estate. Therefore, the personal representative holds considerable power to gather property of the probate estate. This makes sense because the personal representative is responsible for getting estate property to the right beneficiaries or heirs.
What about protected homestead?
Under section 733.608(2), Florida Statutes, “If property that reasonably appears to be protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of the homestead status.”
As you can see, the personal representative also has the power to take possession of homestead property, as long as the person occupying the property does not have an interest in it. It is important to remember that although the personal representative has the power to take possession of the homestead property, there is not authority to sell it without court approval, because homestead property is not considered property of the probate estate, unless the property is transferred to a person who is not an heir. If the homestead property is transferred to a person who is not an heir, then the property is considered part of the estate and can be sold just as any other estate property. The rules relating to homestead property can get a bit tricky and this is not the extent of the rules, so this is one of the areas where it is good to have an Florida probate attorney.
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If you have been named as a personal representative in a will or if you have a loved one who has passed away without a will, contact us today for a free consultation. We will be able to review the assets of the estate with you, go over the probate process, and give you an estimate of the cost to complete the Florida probate.