Court of Appeals Says Curator Cannot Impose Lien on Occupied Homestead Property

What is a Curator?

Sometimes curators are appointed by the probate court to administer the estate under certain circumstances where a personal representative or executor cannot serve. There are a variety of these situations, but what always remains the same is the general duty of the curator to collect the testator’s effects, pay claims against his estate, and distribute the residue to those entitled. Also uniform, is the well settled law in Florida that curator or personal representative does not have an unrestricted right to use estate assets as his own, and the probate code provides that assets of an estate shall be assets in the hands of personal representative or curator for specific purposes only, with significant restriction that he or she act reasonably for the benefit of the interested persons. A curator’s possession of estate assets derives from his appointment and is not an individual right of possession; thus, the personal representative or curator acquires interest solely as fiduciary, holding legal title, but the representative does not hold beneficial title to assets and has no right to dispose of estate assets for his own use. (more…)

Fourth District provides relief for loan burdened surviving spouses and relatives.

The distribution of homestead property in a probate estate is governed by the Probate Code, the Constitution and Florida decisional case law. Even though there is firm statutory, constitutional and judicial precedent dealing with homestead issues, there is always yet another novel issue or unanswered question to which there appears no clear answer. The Florida Fourth District Court of Appeals issued an opinion on April 29, 2009 answering the question whether real property that is facing foreclosure during the probate administration process may be distributed to the decedent’s surviving spouse.

What is Homestead Property?

Homestead property was recognized by the Courts long ago as the place where the owner and his or her family reside, the place where the home or the house is, and adjoining land, where the family dwells. The Florida Probate Code defines homestead property as the property described in such constitutional provision on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under the constitution. This refers to Article X section 4 of the Florida Constitution. (more…)