Blogs from November, 2009


Fourth DCA overturns Broward Probate Court’s eviction of a son from his deceased mother’s apartment.

My blog has previously discussed the Fourth District’s view, articulated in Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009) on the limitations on an estate fiduciary in taking or encumbering homestead property.  Herrilka involved a dispute between two women who both claimed to be married to the decedent; consequently, a curator-Christine Yates-was appointed to marshal the estate assets.  One of the women, Mrs. Herrilka, occupied the real property that was, without dispute, the decedent’s homestead.

After the curator performed legal services for the estate, she filed a lien against the homestead property to protect her unpaid fee and the Broward County Probate Court said the lien was valid.  The Fourth District, however, reversed the Broward County Probate judge and determined that an estate fiduciary, including a curator, cannot take possession or encumber homestead property if “it is occupied by a person who appears to have an interested in the property.”    The court further stated that “for purposes of probate litigation, the Florida Legislature has defined an interested person as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.”  Obviously, because Mrs. Herrilka was claiming to be the decedent’s spouse and was occupying the decedent’s homestead, she qualified as an interested person and therefore, Yates could not encumber the property.

The same reasoning was again applied by the Fourth District in reversing another Broward County Probate judge last week in Buettner v.Fass, –So.3d–, 2009 WL 3446478, 34 Fla.L.Weekly D2212b (Fla. 4th DCA October 28, 2009).  Buettner involved the appeal by Heinrich Buettner who resided in an apartment complex owned by his deceased mother.  The probate court had determined two of the apartment units (there were four in the complex) where the decedent’s homestead.  After Mr. Buettner allegedly thwarted the personal representative’s ability to maintain the other two units of the complex, the personal representative sought to evict the son from the entire premises of the apartment building and recover possession of the entire premises.  The Broward County probate court granted the personal representative’s request and tried to evict Mr. Buettner from the entire apartment complex.

The Fourth District reversed, relying on its prior holding announced in Herrilka:

“[The] order evicting [Mr. Buettner] from the entire premises of the apartment building and directing the personal representative to recover possession of the entire premises…is fundamentally erroneous on its fact in that it purports to evict appellant from the homestead premises and place them in the possession of the personal representative.  As the court had already determined that the property as a homestead, and thus not part of the decedent’s estate, the personal representative had no possessory interest in it.”

In my view, the personal representative should have sought remedies other than trying to evict Mr. Buettner from his apartment.  The probate court is vested with a wide range of equitable and legal power to assist an estate fiduciary in marshaling estate assets.  These powers can be invoked to remedy many injustices, including wrongdoing by undue influencers, personal representatives, beneficiaries, and other players involved in the inheritance, wills and trusts, legal process.


Most Recent Posts from November, 2009