Section 733.607(1) does not Extinguish the need to take Evidence when a Factual Issue Exists as to who is Entitled to Possession of Property Claimed by the Personal Representative

Posted on October 19, 2015

In Delbrouck v. Eberling, 2015 Fla. App. LEXIS 15247 (Fla. 4th DCA 2015), the Fourth DCA found that the trial court erred by granting, in part, a personal representative’s motion to compel surrender of real property held in the name of a decedent because Section 733.607(1), Fla. Stat. did not eliminate the need to take evidence since a colorable factual issue existed over the right to possession of the property.  In the subject case, a residence, an automotive repair shop and sales business were titled in the name of Leon G. Delbrouck (the “Decedent”). One of his three sons, Georges Delbrouck, (“Appellant”) filed a claim against the estate, alleging that he and father had operated the business together since 1977, and he continued to operate it after the Decedent retired. He claimed a constructive trust in those properties alleging that one of his brothers occupied a condominium owned by their father and that the third brother occupied a warehouse owned by the Decedent. The Personal Representative (“PR”) of the subject estate denied the Appellant’s claim and moved to compel Appellant to surrender to her the real properties titled in the Decedent’s name and to cease any business activities on the properties because the PR alleged Appellant was operating an unlicensed business. Appellant then moved the court to authorize occupancy by the beneficiaries. Appellant’s motion to continue to occupy the disputed properties pending his constructive trust action was heard at the same time as the PR’s motion to compel surrender of the property.

Two non-evidentiary hearings were held on the motions, during which Appellant promptly asked that the matter be set for an evidentiary hearing. After the second hearing, the trial court granted in part the PR’s motion to surrender real property. It directed Appellant to turn over possession of all real property titled in Decedent’s name, including the personal property within, except that he was not required to vacate the real property where he was residing and the PR initially was not to interfere with Appellant’s auto repair business. Appellant was enjoined from transferring any of the Decedent’s personal or business assets, other than customer assets. The order was temporarily stayed until an evidentiary hearing was held on Appellant’s motion seeking a stay during the appeal which Appellant intended to file. After the evidentiary hearing, a stay during the appeal was denied, and Appellant was directed to turn over possession of all real property titled in the Decedent to the PR.

The Fourth DCA agreed with Appellant that Section 733.607, Fla. Stat. does not eliminate the need to take evidence where a colorable factual issue exists over the right to possession of property, even if titled in the name of the Decedent. The court concluded that when property is titled in a decedent, but another claims a colorable right to possess the same property, the question of who should temporarily possess the property, pending final resolution of the claim of entitlement, is a factual question that should be resolved by a prompt preliminary evidentiary hearing. If the probate court were to determine that a person or entity other than the personal representative is entitled to possession pending final resolution of possession or ownership (or pending distribution of the assets of the estate to the beneficiaries), the probate court may make appropriate determinations and craft appropriate conditions. Thus, The Fourth DCA found that the trial court erred by granting, in part, the Personal Representative’s motion to compel surrender of the subject property without first hearing any evidence.  The Fourth DCA did not construe Section 733.607(1) to mean a personal representative’s right to possession or ownership after a decedent’s death cannot be contested in a probate proceeding.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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