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Curator vs. Personal Representative

Written by on Dec 14, 2015| Posted in: General

 

There are several scenarios that we are presented with wherein the appointment of a curator (or neutral fiduciary) is warranted for the administration of an estate.  However, what happens when the alleged tortfeasor (whether a brother, sister, step-mother, etc.) has already been appointed as the personal representative of the estate, but we know that he/she should not be because of some prior bad conduct regarding the Estate’s assets.  Regardless of the bad conduct, who would administer the estate while you are trying to prove that case?

Fla. Stat. §731.201 defines a “curator” as a person who is appointed by the probate court to take charge of the estate until letters of administration are issued (in other words, until a specific personal representative is appointed).  A curator is essentially someone neutral who is appointed to temporarily administer an estate.  Many probate attorneys request that a curator be appointed while there is a pending dispute over the qualifications of a currently-appointed personal representative.

Such an instance took place in Gordin v. Estate of Maisel, 2015 WL 7566353 (Fla. 4th DCA).  In this case, the decedent had executed a Will that nominated the grandson to serve as the personal representative.  After the filing of a petition for administration, the probate court entered letters of administration appointing the grandson as the personal representative.  One of the two biological children of the decedent subsequently filed a petition to revoke the probate of the Will and also sought to remove the grandson as the personal representative in favor of curator.

Thereafter, the probate court held a hearing and appointed the curator to administer the estate; however, it did not other address the fact that the grandson was still the personal representative.  As a result, the grandson filed an appeal asserting that the probate court erred in appointing the curator because it essentially gave two people (the curator and the grandson) concurrent powers.

The appellate court conceded that there is little guidance as to the precise situations in which a curator should be appointed, but it did point to certain case law (specifically In re Estate of Miller, 568 So.2d 487 (Fla. 1st DCA 1990), in which the court held that the typical situation that the curator is appointed is where there is a delay in the appointment of a personal representative and a fiduciary needs to take charge of the administration.

However, in the Gordin case, there was no such delay—a personal representative had already been appointed.  Regardless, the Gordin court held that the probate court should have either removed or suspended the grandson as the personal representative prior to appointing the curator.  To allow otherwise would cause confusion as to who actually has the power and responsibility to administer an estate.  Given that there should not have been this concurrent power between the curator and the grandson personal representative, the appellate court reversed the order that appointed the curator.

This case is a perfect example of why an experienced probate attorney is needed such matters, where the smallest detail or timing of events can have drastic, long-term effects on the administration of an estate.

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