In the Florida Probate Code, the legislature has taken into account the various attorney’s fees and costs incurred during an estate or trust proceeding, including when there are contested matters and allegations of breach of fiduciary duty.  No attorney can guarantee that your attorney’s fees will be paid from the other side; however, there are several statutes that allow a petitioner to seek such financial relief.

Fla. Stat. 733.106 states, in relevant part, as follows:

(1)   In all probate proceedings costs may be awarded in chancery actions

….

(3)   Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.

(4)   When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid.

Fla. Stat. 733.609 states, in relevant part, as follows:

(1)    A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from breach of this duty.  In all actions for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s power, the Court shall award taxable costs in chancery actions, including attorney’s fees.

(2)   When awarding taxable costs, including attorney’s fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.

Using these statutes, a savvy probate litigator may be able to get the other party (or the other party’s beneficial interest) to pay for the attorney’s fees that you incurred in bringing a successful breach of fiduciary duty action in Court.

Client’s often call Adrian Philip Thomas, P.A. to ask “how do I contest a Will?”  There are specific grounds and legal reasons needed to challenge a Will in Florida and a skilled Florida probate lawyer can provide guidance.

First, the Will should be scrutinized to see if it was properly executed, witnessed and notarized.  In Florida, there are very specific laws regarding the formality of how a Will is signed.  It must be signed by the Testator and witnessed by two witnesses in the same room and the same time who actually witness the Testator executing the Will.  Each witness must sign in the presence of the other, and then the Will needs to be notarized.

Second, under Florida law, the Testator is required to have the appropriate mental capacity to sign the Will.  This would include the Testator understanding the nature and value of his assets, who should inherit those assets, and the legal effect of signing the Will.  A Will can be declared invalid if the Testator lacked the appropriate capacity to execute the Will.  In the case of Miami Rescue Mission, Inc. v. Roberts, 943 So.2d 274 (Fla. 3^rd DCA 2006), the decedent had executed a new will in 2005 while in the hospital with severe pain and under the influence of strong medications. The decedent’s physicians testified that the medications the decedent had been taking changed her personality, and a psychiatrist testified that the decedent was delusional.  The Court found that through testimony of a caretaker and physicians, the decedent was suffering from an insane delusion at the time the Will was executed, and therefore lacked testamentary capacity which invalidated the Will.  Id.  The Court further defined an insane delusion as a spontaneous conception and acceptance as fact of that which has no real existence except in imagination.  Id.  This case was unusual.  Generally, lack of capacity is established through medical records and testimony of caretakers and relatives.

Third, even if the Testator had capacity, he may have been influenced or coerced to sign the Will, which are grounds for setting the Will aside.  Nagging, threats and verbal abuse are not enough to prove undue influence.  The undue influencer would actually perform certain acts, such as contact the Testator’s attorney, tell the attorney what language is to be placed in the Will, pay for the Will to be drafted, accompany the Testator to the signing of the Will, hold the original Will in their possession, and isolate the Testator from family and friends.  The undue influencer could be a healthcare provider/aide who threatens to withhold care and treatment of the Testator unless the new Will is executed in his favor.  The case of In re Estate of Carpenter, 289 So.2d 410 (Fla. 4^th DCA 1974) is the most followed Florida case regarding undue influence standards.

Also, Florida law holds that if a Will is procured by fraud, wherein the Testator is tricked into signing the Will, then the Will can be contested and could be deemed invalid.  Usually the testimony of the witnesses and notary to the Will are needed to prove what the Testator thought he or she was signing at the time the Will was executed.

If you would like to know “how do I contest a Will?” and would like to speak with a Florida probate lawyer, call Adrian Philip Thomas, P.a. toll free for a free initial consultation.

If an individual elects not to execute a Last Will and Testament, then Florida law makes provisions for distribution of his assets at death.  One area where this is of particular note is Florida’s Simultaneous Death Law, found in Florida Statute § 732.601.  The Simultaneous Death Law is triggered when two (or more) people die and there is insufficient evidence that that the persons have died other than simultaneously.  This is common in fatal accidents, where it is not readily known which individual died first.  This can be important when it comes to determining the ownership of joint accounts (passes to survivor but who was survivor?), determining the correct beneficiary of a life insurance policy, or who takes under a Last Will and Testament.

Under Florida Statute 732.601(1), “[w]hen title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.”  The statute also contemplates when two or more beneficiaries are designated to take successively by reason of survivorship, disposition of property held by joint tenants or tenants by the entirety, and insurance policies where the insured and beneficiary both die and there is insufficient evidence that they died otherwise than simultaneously.

The practical effect of Florida Statute 732.601 is that when two people die and their order of death can’t be readily determined, each person’s property will be treated as if they outlived the other.  In other words, if a mother has her son as primary beneficiary of a life insurance policy and her sister as the contingent beneficiary, and both mother and son perish in a plane crash with no evidence as to order of death, then the policy would be payable to the sister as contingent beneficiary.

As a probate attorney this distinction is very important, as contingent beneficiaries may have rights of which they are unaware due to the Simultaneous Death Law.  The language contained in a Last Will and Testament or Trust (or policy of insurance) can provide differently, but in the event of a Simultaneous Death it may be to your advantage to speak to a Florida probate attorney regarding the facts.

Assuming there is no pre-marital agreement, a surviving spouse who is not included in the decedent’s Will may take a pretermitted share or an elective share.  Which one to take requires an analysis of what the decedent owned and – more importantly – how he owned it.

A “pretermitted” spouse is one who becomes a spouse after the decedent created his Will.  The law assumes that the decedent intended to provide for the spouse but simply did not get around to updating his Will.  The pretermitted share is the same as the intestate share, which is 50% of the probate estate.  The elective share makes no assumption about what the decedent intended and is a mechanism for enforcing Florida’s public policy against disinheriting one’s spouse.  The elective share is 30% of the elective estate.  The elective estate is much broader than the probate estate and may include revocable trusts, jointly-owned property, pay-on-death accounts, life insurance, etc.  Accordingly, an informed decision about whether to take a pretermitted share or an elective share requires information not only about what the decedent owned but also about how he owned it.

For example, let’s say Roger has two children from a prior marriage and prepares his Will in 2004 leaving his entire estate to them.  In 2008, Roger marries his long-time girlfriend, Susan, and neither signs a pre-marital agreement.  The newlyweds are so busy that they forget to change Roger’s Last Will and Testament to add Susan as a beneficiary.  Roger unexpectedly dies in 2012.  Is Susan cut out of Roger’s estate because she is not provided for in Roger’s 2008 Will?  The simple answer is “no.”  The more complicated question is whether Susan should seek the pretermitted spouse’s share or an elective share.  The answer to that question requires more analysis and information.

Let’s break the example down into two simple hypotheticals:

Hypothetical #1:  Roger has $1,000,000 in assets.  He owns $900,000 of stocks and bonds in his revocable trust but he left $100,000 in his sole name at Main Street Bank.  Roger’s probate estate is $100,000 and his elective estate is $1,000,000.  Susan is trying to decide whether to take her pretermitted share or her elective share.  The pretermitted share is 50% and the elective share is 30% so she thinks she should take the higher percentage.  This would be a huge mistake.  The pretermitted share is 50% of the probate estate ($100,000 x 50% = $50,000).  The elective share is 30% of the elective estate ($1,000,000 x 30% = $300,000).  In this scenario, Susan comes out better by taking her elective share.

Hypothetical #2:  Roger has $1,000,000 in assets.  He owns $900,000 in his sole name at Main Street Bank and $100,000 in a pay-on-death account for his children.  Susan is again trying to decide whether to take her pretermitted share or her elective share.  The pretermitted share is 50% of the probate estate ($900,000 x 50% = $450,000).  The elective share is 30% of the elective estate ($1,000,000 x 30% = $300,000).  In this scenario, Susan is much better off taking her pretermitted share of the probate estate and forfeiting any interest in the pay-on-death account.

It is important for a surviving spouse to hire his or her own lawyer to represent them in connection with a decedent’s estate and to advise them about which statutory election is best for them.  If you or a loved one needs to speak to an attorney about pretermitted share or elective share matters, please call the attorneys at Adrian Philip Thomas, P.A.

As a Florida probate attorney, it is customary to encounter issues and disputes arising from a former spouse of the decedent.  For some time the Florida Legislature has provided a statutory scheme which provides a presumption preventing former spouses from inheriting from wills and revocable trusts (Florida Statutes §§ 732.507(2) and 736.1105, respectively).  Florida Statute 732.507(2) provides that any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage, absent the will or dissolution or divorce judgment expressly providing otherwise.

Similarly, Florida Statute §736.1105 provides that a revocable trust executed by a spouse prior to annulment or dissolution of the marriage becomes void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce, absent the trust instrument or a judgment expressly providing otherwise.  The two statutes have provided a mechanism for modifying the decedent’s estate planning documents when they still provide for a former spouse (provided there is not an intent shown by the Decedent or a court other specifying otherwise).

Oftentimes people have assets which do not pass through their Last Will and Testament or Trust, such as pay on death bank accounts, annuities, other securities or life insurance.  Under Florida Statutes §§7322.507 and 736.1105 this previously could be problematic in the event of divorce, where one spouse did not modify the beneficiary of such an account upon a decree of divorce and then untimely died.   However, effective July 1, 2012 Florida Statute § 733.703 became effective.  This new law provides that a designation made by or on behalf of the decedent providing for the payment of transfer on death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order.  The decedent’s interest would then pass as if the former spouse predeceased the decedent.

Florida Statue § 732.703 does not override an order of the court from a divorce or dissolution proceeding, nor does it apply to the extent controlling federal law provides otherwise.  However, it acts as a practical tool for the estate and trust lawyer in Florida to seek to uphold the intent of the Decedent when there is no evidence of a desire or obligation to provide for the former spouse. 

If you have a question about the inheritance rights of a former spouse in a trust, estate, or pay on death account of a decedent, call to speak with an attorney at the Law Offices of Adrian Philip Thomas, P.A. for a no obligation consultation at 800-249-8125.       

WHEN OUT-OF- STATE ESTATE PLANNING DOCUMENTS DO NOT ACHIEVE THEIR OBJECTIVES UNDER FLORIDA LAW

 “There is nothing more important than a good, safe, secure home.”  Rosalynn Carter

            Often, out-of-state residents own property in Florida, and have their estate planning documents prepared out-of-state, without consulting with competent Florida counsel to inquire if their estate planning documents will achieve their objectives and goals under Florida Law.

            In July of 1996, Hillard J. Aronson resided in Massachusetts with his second wife, Doreen Aronson, and Mr. Aronson was the owner of a condominium located in Key Biscayne, Florida.    He decided to create a revocable trust in which he was both a life beneficiary and a trustee, and upon his death, his trust created a life-time irrevocable martial trust for his wife, Doreen, with remainder to his two sons from his prior marriage.  Mr. Aronson then deeded the Florida condominium to himself as the trustee of his revocable trust.  Mr. Aronson’s plan was that the trust was to provide the use of the trust assets for his wife, Doreen, for her lifetime, and upon her death, the remainder was to go to his two sons from his prior marriage.  In addition, Doreen had the right to require the successor trustees (who were Mr. Aronson’s two sons) to annually distribute to her an additional 5% of the trust or $5,000.00, whichever was greater.

            Then, in December of 1996, Mr. Aronson deeded the Florida condominium to his wife, Doreen by quit claim deed.  Several years later, Mr. and Mrs. Aronson sold their home in Massachusetts and permanently moved into the Key Biscayne, Florida condominium, which became their homestead property.  Approximately a year later, Mr. Aronson died, and the only asset in his trust was the Florida condominium.

            Mr. Aronson’s two sons individually and in their capacity as successor trustees of Mr. Aronson’s trust, filed a Complaint seeking a declaratory judgment to invalidate the conveyance to Doreen on the ground that the property has already been conveyed to Mr. Aronson’s trust in July of 1996.  In 2006, the Third District Court of Appeal of Florida held that the quit claim deed transferring the Florida condominium to Doreen was invalid, which would ensure that the Florida condominium remained a trust asset.

            Doreen Aronson responded by filing suit to enforce all of her rights to the Florida condominium under the terms of the marital trust.  Doreen sued for reimbursement of all of the expenses related to the condominium she paid with her own funds, and for payment of all mandatory principal distribution rights under the marital trust.  At this time, Mr. Aronson’s trust owned only one asset, which was the Florida condominium. The two options that Court could rule upon were as follows: 1) sell the condominium and pay Doreen from the sales proceeds (but this would force Doreen out of her home); or 2) transfer a percentage of the condominium’s ownership interest to Doreen.  Mr. Aronson’s two sons wanted the Court to require the sale of the condominium and pay Doreen from the sales proceeds, which would force her to move, and the two sons won at the trial level. Doreen Aronson appealed the Court’s decision because the Florida condominium was Mr. Aronson’s homestead property, and he was survived by his wife, Doreen, so she believed the condominium was not subject to disposition through Mr. Aronson’s trust.

            In Aronson v. Aronson, 81 So.3d 515 (Fla. 3^rd DCA 2012), the Court ruled that because the condominium was homestead property, a life estate in the condominium passed to Mr. Aronson’s surviving spouse, Doreen, with the vested remainder to Mr. Aronson’s two sons, who had no power as the successor trustees to sell or transfer the condominium.  The Court ruled that it was undisputable that the Key Biscayne, Florida condominium was Mr. Aronson’s homestead property at the time of his demise, and that Article X, Section 4 of the Florida Constitution provided that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” Id.  “The Florida legislature had made clear its command that this provision shall apply equally to property held by a revocable trust as to testamentary bequests.”  Aronson v. Aronson, 81 So.3d 515 (Fla. 3^rd DCA 2012).

            Therefore, because the Key Biscayne, Florida condominium was Hillard Aronson’s homestead, and because his wife, Doreen, survived him, the condominium was not subject to disposition through Mr. Aronson’s trust document, as he had intended.  Instead, it passed outside of the trust to Doreen for her life, with the remainder to his two sons, leaving the trust completely empty, and Mr. Aronson’s Massachusetts estate plans completely derailed. 

            Florida property owners with out-of-state estate planning documents should consult with a competent Florida attorney to insure that their estate plan will achieve their goals under Florida law instead of having completely unintended consequences, as in the case of Aronson v. Aronson, 81 So.3d 515 (Fla. 3^rd DCA 2012).

CAVEATOR BEWARE:  Rocca v. Boyansky, 80 So.3d 377 (Fla. 3d DCA 2012)

Matthew Rocca is the grandson of decedent, Sidney Boyansky.  Sidney had included Matthew in his estate planning documents until he executed November 2007 documents that cut Matthew out.  Sidney died on April 23, 2009.  On June 10, 2009, Sidney’s surviving spouse filed a Petition for Administration to admit the 2007 will to probate.  On August 21, 2009, Matthew filed a caveat. 

In Florida, a caveat is a document that an interested person or a creditor may file with the probate court that alerts would-be personal representatives or proponents of wills to the existence of this person and his claim in the estate.  Florida Statute §731.110(1) provides that “any interested person who is apprehensive that an estate, either testate or intestate [meaning with a will or without a will, respectively], will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court.  The caveat of the interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered.”

The filing of a caveat triggers a procedural rule, namely Fla.R.Probate 5.260(f), which states that “after the filing of a caveat by an interested person other than a creditor, the court must not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the caveator’s designated agent.”

So on August 25, 2009, four days after Matthew filed his caveat, the surviving spouse filed an Amended Petition for Administration and served it via Formal Notice on Matthew.  Formal Notice involves a copy of the pleading (in this case the Amended Petition for Administration) being served on the interested person together with a notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice and to file the original of those defenses with the clerk of court.  The notice also notifies the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded.”  Fla.R.Probate 5.040(a)(1)  [The word “may” is important because it means the court has discretion.]

Matthew received his formal notice on August 31, 2009 but he filed his objection one day late on September 21, 2009.  He then obtained an extension from the court to file more detailed objections by December 15, 2009.  The surviving spouse set her Amended Petition for Administration for motion hearing on December 22, 2009.  She scheduled it for a date after the time for Matthew to file his objection and provided notice to Matthew of the hearing.  Matthew again failed to timely file his amended objections.  Instead, he delivered it to the court one-half hour before the scheduled hearing.  The surviving spouse took the position that no objection was filed (because it was late).  The lower court agreed and admitted the 2007 will.  Matthew appealed and won.  [This does not mean that the earlier will is admitted, it just means fresh life was breathed into Matthew’s caveat and the lower court has to entertain his objection.]

In its analysis, the appellate court made much of the mandatory language of Fla.Stat. 731.110(3), which formerly stated that “when a caveat has been filed by an interested person other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative until the petition for administration has been served on the caveator or the caveator’s designated agent by formal notice and the caveator has had the opportunity to participate in the proceedings on the petition.”  [emphasis added]

This version of the statute was easily harmonized with Rule 5.260(f) which, as noted above, says the court “must not” admit a will without formal notice on the caveator.

On appeal, the surviving spouse addressed both prongs of Matthew’s due process argument, i.e. notice and opportunity to be heard.  First, she argued that formal notice had been provided and Matthew had missed the deadline for filing his objection so the lower court did not need to consider it.  Second, she argued that Matthew had received notice and been provided an opportunity to be heard and participate in the hearing on the Petition for Administration.

The appellate court disagreed, primarily because it reasoned that the “opportunity to participate” is a “statutorily-created due process right” requiring the caveator to be given a full and fair opportunity to be heard before his substantial interests are determined.  The appellate court went on to say that in the context of a will contest, this includes the right to introduce evidence at a meaningful time and in a meaningful manner and includes the right to cross-examine witnesses and to be heard on questions of law.  The hearing on the Amended Petition for Administration was not noticed as an evidentiary hearing (meaning no evidence could be offered), so the appellate court said Matthew was denied a meaningful opportunity to participate. 

The appellate court was unconcerned by Matthew’s chronically-late filings, opining that Rule 5.040(a)(1) is “neither a statute of limitations nor a mandatory non-claim provision.”  It is simply a procedural rule and cannot act as a bar to a caveator’s procedural due process rights, which leads to the next issue.

Since the underlying proceedings in 2009, Florida Statute 731.110(3) has been amended by the legislature to read “if a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until the petition for administration has been served on the caveator or the caveator’s designated agent by formal notice and the caveator has had the opportunity to participate in the proceedings on the petition.”  [emphasis added]  The distinction between “may” and “shall” in the law is not merely one of semantics.  It would appear that the court now has the discretion to admit a will or appoint a personal representative even if the two prongs of notice and a hearing have not been satisfied. 

So assume Sidney died this year and further assume all of the same facts as above – Matthew received formal notice, filed everything late, and was denied a meaningful opportunity to participate – does the new language mean that the lower court has the discretion to admit the will and/or appoint a personal representative even if one or both of the two prongs of the rule are not satisfied?  Due process that is discretionary is meaningless and arguably not due process at all.    So did the legislature make a mistake when it modified the language of the statute to change it from mandatory to discretionary or do the caveator’s rights currently not rise to the level of procedural due process? 

While it is not clear what the implications of this opinion are given the small but significant difference between the language of Fla. Stat. 731.110(3) in 2009 and 2012, there are a couple of important lessons for practitioners to be gleaned from the opinion:

First, if you filed the petition for administration and a caveat has been filed, set the hearing on the petition as an evidentiary hearing to avoid the argument that the caveator was not given a meaningful opportunity to participate.

Second, if you are the caveator, file everything timely so that the judge is not inclined to rule against you out of a perception that your tardiness is a procedural bar and insist on an evidentiary hearing on the petition for administration and/or petition to admit will.  While you may win on appeal, it’s far better to avoid the need for one.

Florida Probate Litigation

Florida Probate Litigation law suits in Florida are ones involving estates, trusts, guardianships and probate.  They may involve documents including: Last Will & Testament, Living Trust, Durable Power of Attorney, etc.  These cases are filed on a daily basis throughout the State of Florida.  Many of these lawsuits include counts for undue influence, lack of capacity, and tortious interference but regardless on the title of the lawsuit they all involve some level of exploitation of the elderly.  Exploitation can occur when a person who stands in a position of trust and confidence with a vulnerable adult knowingly, by deception or intimidation, obtains or uses a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.  Ignoring this sophisticated definition, what we are really speaking of is some form of stealing.

If you need to speak with an attorney about a Florida Probate Litigation matter, please contact the attorneys at Adrian Philip Thomas, P.A. for a free consultation.

CREDITOR CLAIMS IN THE FLORIDA PROBATE PROCESS

            As is often the case, people pass away with a debt owed to another person or entity.  When this occurs, the proper manner for a creditor to collect on such a debt is to file a Statement of Claim in the decedent’s estate pursuant to Fla. Stat. §733.703.  The primary time limitation that creditors must be wary of stems from Fla. Stat. §733.702, which states that the claim must be filed within three (3) months after the time of the first publication of the notice to creditors (which is published by the personal representative near the commencement of the estate administration) or, if the creditor is a known and/or reasonably ascertainable creditor, thirty (30) days after being served with the notice to creditors.  Typically, the proper person to file an objection to any such claim is the personal representative.  However, under the Florida Probate Code, any interested person in the estate, whether a beneficiary or another creditor, may also file an objection to a filed claim.

            Fla. Stat. §733.705 describes the procedure of paying and objecting to claims that are filed in an estate.  In regards to objections, the statute states as follows:

(2)   On or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later, a personal representative or other interested person may file an objection to a claim. 

 An “interested person” under the Florida Probate Code is one who may be reasonably expected to be affected by the outcome of a particular proceeding involved.  Of course, a beneficiary or a creditor of an estate would come under this definition and have the authority to file an objection to a filed claim.  This often occurs when a beneficiary or creditor does not believe that the personal representative has been performing his or her duties diligently and in the best interest of the estate and/or if there is a suspicion of a conflict of interest.  Although such impropriety is not required for an interested person to file an objection to a claim, this is the typical scenario where one would see a non-personal representative filing an objection to a creditor claim.

Once the objection is filed, however, the claimant has their own time limitation to consider.  Pursuant to Fla. Stat. §733.705(5), a claimant is limited to thirty (30) days from the date of service of this objection to bring an independent action upon the claim filed.  In other words, the creditor has to file a separate lawsuit against the estate in order to collect on his, her or its claim.  Moreover, Florida case law is clear that this lawsuit must be an “independent” lawsuit, meaning that it cannot be filed in the probate estate.  Williams v. Estate of Williams, 493 So.2d 44 (Fla. 5^th DCA 1986); In re Estate of Fornash, 372 So.2d 128 (Fla. 2d DCA 1979). 

If you are involved in an estate administration that requires some attention to the collecting or defending of a creditor claim, it is in your best interest to consult with an attorney experienced in the Florida probate process in order to ensure that the proper steps are being taken to prosecute or defend such a claim.

A Will Contest can often be a lengthy process involving extensive motion practice, discovery, and various other pre-trial matters that can arise during the litigation. A Will Contest can begin both before and after the appointment of a personal representative.  Whether a dispute arises before or after the appointment of the personal representative, the concern becomes how one can protect and preserve the estate’s assets for the ultimate beneficiaries, pending a final determination by the court.

The circuit court, sitting in its probate capacity, 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 Estate of Conger, 414 So.2d 230 (Fla. 3^rd DCA 1982).  Furthermore, 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 Patrone v. Cypen (In Re: Estate of Barsonte), 773 So.2d 1206 (Fla. 3^rd DCA 2000).  If a Will dispute arises after a personal representative is appointed, through the filing of a Petition for Revocation, the personal representative also has a clear legal right under Fla.Stat. §733.607(1) to take all steps reasonably necessary for the management, protection and preservation of the estate until distribution. Any interested person who’s interests would be affected by the result of a Will contest could invoke the probate court’s jurisdiction to take such appropriate action as necessary to preserve the assets of the estate.

Whether sought by the personal representative or an interested party, a temporary injunction freezing assets claimed to belong to a decedent’s estate is often a necessary action through which the court can monitor and preserve assets prior to determining the ultimate ownership and/or beneficiaries of those assets.

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) the public interest will not be disserved. Failure to seek a temporary injunction freezing assets of an estate during a Will Contest or any adversarial proceeding involving a determination of a beneficiary’s rights could result in immediate and irreparable harm to the estate due to dissipation of the assets during the litigation.  The function of the temporary injunction in a Will Contest is not to determine the ownership of the subject assets but merely to preserve the assets pending the outcome of the Will Contest or other adversarial proceeding.