The Appointment of a Curator Without The Revocation or Temporary Suspension of Letters Issued to the Personal Representatives Was Error

Posted on December 15, 2015

In Gordin v. Estate of Maisel, 2015 WL 7566353 (Fla. 4th DCA 2015), the Fourth DCA held that it was improper for the probate court to appoint a curator without revoking or suspending letters of administration. In the subject case, Shelley Wilensky (“Decedent”) died leaving a will appointing her grandson, Gordin, as personal representative of his estate. After Decedent’s death, Gordin filed a petition for administration as the person chosen to serve as personal representative by Decedent. The probate court entered an order admitting Decedent’s will to probate, and appointing Gordin and Teresa Shelley (collectively, “Appellants”) as co-personal representatives. Teresa Shelley was appointed as co-personal representative since Gordin was on active duty in the military.

Daniel Shelley (“Appellee”) filed a petition for revocation of the will, claiming that Decedent was domiciled in Puerto Rico when he died and under the laws of Puerto Rico, Appellee was entitled to a “forced share” of the estate, despite being disinherited. Appellee also claimed that Decedent lacked testamentary capacity when he executed the will and that Decedent was under the undue influence of Teresa Shelley at the time. He also pointed out that Decedent had three previous wills, all executed in Puerto Rico. The next day, Appellee filed a petition for administration, seeking to admit one of Decedent’s previous wills to probate, to appoint himself as the personal representative of the estate, and to have the probate administration transferred to Puerto Rico.  Subsequently, Appellee filed a motion to remove the personal representatives and to appoint a curator.

Appellants then filed an amended petition for administration. On the same date, letters of administration were issued again appointing Gordin and Teresa Shelley as co-personal representatives. Without hearing evidence, the probate court heard the motion to appoint a curator and appointed an attorney as curator.  The order did not address the previously issued letters of administration.  The letters of curatorship gave the curator the full powers of a personal representative.  The personal representatives appealed, arguing that it was not proper for both a curator and a personal representative to act on behalf of an estate.

On appeal, the Fourth DCA reversed the trial court, noting that although there is not much guidance in the law as to when a curator should be appointed, there is applicable case law such as In re Estate of Miller, 568 So.2d 487, 488 (Fla. 1st DCA 1990), which noted that a typical situation in which a curator is appointed is when there is a delay in the appointment of a personal representative. In addition, Section 731.201(8), Fla. Stat. defines a “curator” as “a person appointed by the court to take charge of the estate of a decedent until letters are issued.”  The Fourth DCA interpreted the definition of “curator” in Section 731.201(8) and the definition of “letters” in Section 731.201(24), Fla. Stat., as an indication that the legislature intended that a curator be appointed before the letters of administration are issued to personal representatives.  Florida Probate Rule 5.122(e) also provides guidance as it requires the curator to account for and deliver all estate assets in the curator’s possession to the personal representative.  Therefore, the Fourth DCA concluded that the role of a personal representative is supposed to succeed the role of the curator in the administration of an estate. It concluded that “the concurrent service of a personal representative and curator cannot be legally justified.”

The Fourth DCA Court also found that the simultaneous appointment of a curator and a personal representative could cause conflicting opinions on how to make decisions regarding an estate. In the case before it, the concurrent appointment of a curator could lead to a never-ending loop because the trial court’s order requires possessors of estate assets (the co-personal representatives) to give the assets to the curator, and the rules require the curator to give possession of the same assets to the personal representatives.

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 gmednick@mednicklawgroup.com.

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