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Preservation of Assets During a Will Contest

Written by on Mar 24, 2012| Posted in: Probate Litigation

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. 3rd 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. 3rd 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.

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