Florida Probate Litigation Lawyer Blog
Are Actions Taken Before Appointment as Personal Representative Valid? Yes, if the Actions Were Beneficial to the Estate
Florida law states that the duties and powers of a personal representative commence upon appointment. You may be named as personal representative in a decedent’s will, you are not legally considered a personal representative until the court appoints you. But what happens if you need to take action regarding an estate before a court officially appoints you as the personal representative of the estate, such as paying bills or filing a lawsuit? As it turns out, under the relation back doctrine, any act that you do on behalf of the estate becomes valid after you are appointed the personal representative, if such actions are beneficial to the estate. Florida courts have also clarified that performing the duties of a personal representative is considered beneficial to the estate.
Florida’s Relation Back Doctrine is found in Fla. Stat. § 733.601, which states, “The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.”
The Third District Court of Appeals attempted to clarify if the powers or duties of a personal representative are being addressed in this statute in Richards v. Richards. In this case, a co-personal representatives signed and published the first notice to creditors one day before being appointed co-representatives by the court. Several months later, one of the co-representatives untimely filed a statement of claim against the estate, arguing that she was entitled to $4 million in retirement benefits based on a prenuptial agreement between her and the deceased. One of the arguments asserted by the claimant was that the notice to creditors was null and void because it was not published by an appointed personal representative, as it was sent before the court had appointed a personal representative. The claimant’s basis was that § 733.601 only provided that personal representative’s powers related back, but duties do not relate back, and the filing of a notice to creditors was a duty. The trial court granted the claimant summary judgment, agreeing that the notice to creditors was null because it was published before the court appointed the co-personal representatives.
However, the Third DCA was not in agreement with the trial court. The court stated that the statute discusses acts of the person who is later appointed personal representative that relate back, as long as those acts are beneficial to the estate. The court emphasizes that an individual cannot have the duty to act unless they also have the power to act. It is not a question of power or duties, the question is about the acts of an individual, and should be limited to the characterization of that act as a power or a duty. The court ultimately holds that the act of publishing the notice to creditors was an act that was beneficial to the estate, and was validated by the relation back doctrine.
This article is intended to provide information about steps taken by individuals before they are appointed as personal representatives. Any individual who is acting on behalf of an estate, prior to being appointed as personal representative, should not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning and probate litigation needs. Bart Chepenik, 305-613-3548 or Brad Trushin, 305-981-8889 are always accessible for your inquires.
