PBCBA BAR BULLETINS pbcba_bulletin_july2018 | Page 18

PROBATE C o r n e r
Part II:
In Florida, Does A Personal Representative Have Standing To
Challenge The Surviving Spouse’s Claim As An Omitted Spouse?
DAVID M. GARTEN
A. FLORIDA STATUTES:
●A PR is required by law to pursue assets and
claims of the estate, with value, including
those assets which are in the hands of a
former PR or her or his agents. As a result,
a successor PR may bring a cause of action
for legal malpractice against an attorney
hired by her or his predecessor to provide
services necessary to the administration of
the estate. See Bookman v. Davidson, 136 So.
3d 1276 (Fla. 1st DCA 2014).
A personal representative is a fiduciary
who shall observe the standards of care
applicable to trustees. See §733.602(1),
F.S. Pursuant to §736.0803, F.S., if a trust
has two or more beneficiaries, the trustee
shall act impartially in administering the
trust property, giving due regard to the
beneficiaries' respective interests. There
is no “good cause” provision in either the
Probate Code or the Trust Code.
●The person named as PR in an earlier will
had standing as an interested person to
B. CASE LAW:
contest a later will which named someone
else as a PR. See Engelberg v. Birnbaum, 580
●As a general rule, it is neither appropriate So. 2d 828 (Fla. 4th DCA 1991).
nor proper for a personal representative
(“PR”) to take an affirmative position for ●A PR has standing to file a complaint
or against any faction claiming a right to for declaratory relief which sought a
the estate of a deceased where all of the declaration that, pursuant to §689.07(1),
potential heirs of the estate are before the F.S. titled ““Trustee” or “as trustee” added
court. It is the responsibility of the various to name of grantee, transferee, assignee, or
claimants to establish their own rights in mortgagee transfers interest or creates lien
the estate. Under such circumstances the as if additional word or words not used”, six
PR is, in effect, a nominal party in order that parcels of real property titled in the name
he may be kept advised of the progress of the of "Norman Giller, Trustee" were actually
proceedings and be bound by the judgment owned in fee simple by the decedent as of
of the court determining the proper heirs the date of his death, and that the properties
of the estate. See In re Estate of Lynagh, became the assets of the estate subject to
177 So. 2d 256 (Fla. 2nd DCA 1965); Barnett probate administration as of the date of his
v. Barnett, 340 So. 2d 548 (Fla. 1st DCA 1976) death. See Giller v. Giller, 190 So. 3d 666 (Fla.
(While the trustee in his fiduciary capacity 3rd DCA 2016).
was required to do something more than
stand on the sidelines and watch, it was not ●A PR has no standing to invoke Fla. Const.
his duty to take a partisan stance and argue art. X, §4(c) [homestead] for the protection
the side of one or more of the claimants. In of either creditors of the estate or heirs who
order that the trustee might discharge his are not surviving spouses or minor children.
fiduciary responsibilities it was his duty However, a PR does have standing to obtain
to participate in the investigation of the a court order expressly approving a transfer
claims, secure relevant documents and of homestead property in order to establish
procure other evidence). See
clear title to the property. See In re Estate
of Morrow, 611 So. 2d 80 (Fla. 2nd DCA 1992).
●A PR had no standing to contest a will
under which she held her appointment, ●The PR is the only party with standing to
and she was immediately disqualified from bring a wrongful death action to recover
continuing in that capacity when s