According to Florida law, the assets that must go through probate include all real and personal property of the decedent, except the protected homestead (see below), within Florida and the rents, income, issues, and profits from it. This includes any property a decedent has at death as well as any property transferred before death which can or should be recovered or brought into the estate for testamentary or intestate administration by the fiduciary, including:
Bank accounts, real estate, vehicles, cash, all in the sole name of a decedent. Life insurance policies, annuity contracts, or individual retirement account payable to the decedent or the decedent’s estate. All personal property like art work, fine wine and other fine spirits, watches, furniture, coins, jewelry, figurines, books, toys, and firearms that are not otherwise disposed of or gifted by the decedent prior to death.
Note: According to Florida statutory these assets are controlled by the personal representative for the payment of estate administration expenses, for devises, claims against the estate, and obligations of the decedent’s estate, among other reasons:
(1) All real and personal property of the decedent, except the protected homestead, within this state and the rents, income, issues, and profits from it shall be assets in the hands of the personal representative:
(a) For the payment of devises, family allowance, elective share, estate and inheritance taxes, claims, charges, and expenses of the administration and obligations of the decedent’s estate.
(b) To enforce contribution and equalize advancement.
(c) For distribution.
See: Florida Statute 733.608
Additionally, a Personal representative who takes possession of decedent’s homestead property pursuant to his or her statutory authority to protect the property for the benefit of decedent’s heirs did not have authority to sell the homestead property, even though will gave her the authority to dispose of “all or any part of the assets of the estate”; homestead property was not property of the probate estate:
Having concluded that section 733.608(2), Florida Statutes (2002), was properly invoked by the trial court as authorizing the personal representative to take possession of the Baker Road property for the protection of the heirs, the remaining question concerns the actual authority of the personal representative to then sell the property. The trial court noted that the decedent’s will gives the personal representative the authority to sell real estate and to dispose of “all or any part of the assets of the estate.” However, as recently reiterated in McKean, protected homestead property is not property of the probate estate. While section 733.608(2) gives the personal representative authority to take possession of homestead property to preserve it, it does not grant to the personal representative the power to sell said property.
In connection with the actual sale, the trial court referenced two decisions, In re Granger, 318 So.2d 509 (Fla. 1st DCA 1975) and Estate of Price v. West Florida Hospital, Inc., 513 So.2d 767 (Fla. 1st DCA 1987), which the court stated would control whether the sale to Yost was in good faith and thus valid. Neither addresses the authority of the personal representative to sell homestead property under the facts presented here. Granger did not involve sale of protected homestead property, but concerned the principles applicable where a personal representative, in accordance with authority contained in a will, seeks court approval to sell real property in order to pay expenses of administration. The appellate court stated that factors to be considered in the decision to approve/disapprove such sale include adequacy of consideration, good faith, whether the transaction will benefit one or more of the beneficiaries to the detriment of others, and whether or not fraud is involved.
Price involved a situation where, unlike here, the will expressly directed sale of the homestead property with proceeds to be divided among the decedent’s adult children. The appellate court affirmed the ruling that, given the directive, the proceeds of such sale lacked homestead protection and were available to satisfy the claims of the decedent’s creditors.
We are sympathetic to the attempt by the able trial judge to fashion a pragmatic solution to a difficult problem. Because we are unable to discern any legal authority for the personal representative to sell the protected homestead property, the personal representative acted without legal authority in conveying the protected homestead property to Yost. That portion of the *754 order on appeal ruling that the personal representative had authority to sell the homestead property is reversed. The cause is remanded for further proceedings consistent with this opinion.
See: Harrell v. Snyder, 913 So. 2d 749
Related:
- Who Has Preference as a Personal Representative in Florida
- Powers and Duties of a Personal Representative in Florida
- Selling Real Estate During Probate in Florida
- Transfer of Florida Real Estate after Death
- Is A Widow Responsible For Her Husband’s Debt In Florida?
- Formal Probate Administrations
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