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.

How Is A Curator or Personal Representative Paid?

What does a curator or personal representative do when they have performed their duties, acted as a faithful fiduciary, and there are not enough assets in the estate to be pay their fee? This was the question raised in the Fourth District Court of Appeals in Herrilka v. Yates, –So.2d–, 2009 WL 1531772, 34 Fla.L.Weekly D1117a (Fla. 4th DCA, June 3, 2009).

In Herrilka, the Broward County Probate Court appointed a curator, attorney Yates, when a dispute arose as to who should be named personal representative (at least two persons claiming to be the surviving spouse.) After her appointment, Yates performed work for the estate, however, it was argued that her services were not conducted for the specific purpose of preserving, insuring, and protecting the homestead property. The homestead property was occupied by one of the persons claiming to be the decedent’s surviving spouse, Constance Herrilka.

Since there were insufficient funds in the probate estate to pay Yates’ legal bill, she asked the probate court under Fla.Stat. §733.608 for a lien to be imposed against the homestead property. The pertinent parts of section 733.608 are:

(2) If property that reasonably appears to the personal representative 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 its homestead status. If the personal representative takes possession of that property, any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive.

(3) If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures and obligations incurred, including, but not limited to, fees and costs, shall constitute a debt owed to the personal representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section. The debt shall include any amounts paid for these purposes after the decedent’s death and prior to the personal representative’s appointment to the extent later ratified by the personal representative in the court proceeding provided for in this section. § 733.608(2)-(3) (emphasis added).

On appeal, the Fourth District Court of Appeals reversed the Broward County Probate Court because: (1) Yates has not, and cannot, take possession of the property, as it is occupied by an “interested person;” and (2) the fees incurred by Yates for which the lien was imposed were not incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property. According to the Fourth District, these requirements must be met by the statute’s clear language as a precondition to a curator requesting a lien in lieu of payment of her legal bill from an insolvent estate. Further, the Fourth District was concerned that Constance Herrilka still lived in the property and was an “interested person” as defined by the probate code:

“In this case, the trial court erred in imposing the lien because the homestead property was never taken into possession, either legally or factually, by Yates, as Constance still occupies it. This failure to take possession negates a claim for the imposition of the lien because, to do so, section 733.608 first requires that the personal representative take possession of the property “for the limited purpose of preserving, insuring, and protecting it.” § 733.608(2). Furthermore, Yates cannot legally take possession of the property because it is “occupied by a person who appears to have an interest in the property,” id., i.e., Constance. Constance is an “interested person” because, by potentially being Joseph’s surviving spouse and joint owner of the property, as well as being the property’s current occupant, she is a “person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Id. § 731.201(23)….Even if Yates met the threshold possession requirement of section 733.608, the lien was still not properly imposed. This is because the expenses the lien represents were incurred for legal services having to do with the administration of the Estate. The services, as required by section 733.608(3), were not incurred for the specific purpose of preserving, maintaining, insuring, or protecting the homestead property.”

Personal Representatives and Curators need to be mindful that in order to have a lien on homestead property the threshold requirements that the property not to be occupied by a person who appears to have an interest and that the personal representative or curator take possession must be meet.

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.

Why is this Property Protected? As a matter of public policy, the purpose of the constitutional homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her relatives and loved ones may live beyond the reach of financial misfortune and the demands of creditors who have extended credit to the now deceased property owner. Callava v. Feinberg, 864 So.2d 429 (Fla.DCA 2003). There are, however, a few exceptions to homestead protection: consensual liens (mortgages); taxes and assessments (homeowners associations) debts for improvement (mechanics liens), and fraud.

What if the Property is in Foreclosure? The question of whether the homestead protection is afforded to the surviving spouse for property owned by decedent in order to protect it from foreclosure was recently answered in Bayview Loan Servicing v. Giblin, —So.2d—, 2009 WL 1139236 (April 29, 2009) an opinion issued by the Fourth District Court of Appeals.

The facts of Bayview involved the marriage of Decedent and Mrs. Giblin who married in 1959, had one child, and separated (but never divorced) in 1981. In 2000, decedent purchased a piece of residential property in Broward County. Title to the property was placed in the decedent’s name. The wife and daughter lived in the home, but decedent never did. Decedent died in 2001.

Decedent bequeathed his estate to his children and grandchildren. While probate was pending, the personal representative of the estate took out a mortgage on the property with the lender, Bayview Loan Servicing. Later, the Lender brought a foreclosure action against the estate. The wife filed a petition to determine the homestead status of the property.

After an evidentiary hearing, Broward County Probate Judge Mel Grossman found that the property was decedent’s homestead within the meaning of article X, section 4 of the Florida Constitution. As such, the court ordered that “the title to the Property descended and the constitutional exemption from the claims of decedent’s creditors inured to the decedent’s surviving spouse, Nivia Giblin, as to a life estate, with a vested remainder in the descendents of the decedent in being at the time of the decedent’s death.”
Article X, section 4 of the Florida Constitution provides, in relevant part:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, . . . if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;. . .
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The 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. . . .

The Fourth District Court of Appeals agreed with Judge Grossman:

“The language of article X, section 4 is clear and unambiguous. Here, decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is homestead. Because decedent died leaving a spouse, the descent of his property is controlled by section 732.401(1), Florida Statutes (2001). As such, the wife is entitled to a life estate in the homestead with a vested remainder to the descendants. § 732.401(1), Fla. Stat.”

This decision by Judge Grossman at the trial court and appellate court is consistent with the purpose of Florida Constitution’s homestead exemption, which is to preserve the home as shelter for the family so as to prevent a family from becoming a public charge.