PROBATE CORNER
Beneficiary ’ s Standing to Sue Third Parties ( Continued )
DAVID M . GARTEN
In All Children ' s Hosp . v . Owens , 754 So . 2d 802 ( Fla . 2d DCA 2000 ), there were twenty-eight charities listed as residual beneficiaries of the estate . The plaintiffs were eight charities entitled to receive 24 % of the residue . The other twenty charities are not involved in the litigation . Defendant was the decedent ’ s caretaker . The personal representative arranged for the appointment of a administrator ad litem to pursue claims against the caretaker . The charities filed a civil suit against the caretaker seeking a constructive trust and damages for tortious interference with an expectancy which was denied on the basis of standing . The appellate court affirmed finding that the charities claim for tortious interference with an expectancy had not yet accrued because the estate administration was still pending so the charities had not yet been damaged . The court concluded that any attempts to retrieve estate property from the caretaker should be left to the personal representative or administrator ad litem through proceedings in probate .
In Parker v . Parker , 185 So . 3d 616 ( Fla . 4th DCA 2016 ), after being advised of his terminal medical condition 15 days before his death , the decedent and his wife transferred title to a total of seven properties to their son and an entity solely owned by their son . Seven months later , the decedent ' s children from former marriages sued to set aside the transfers on the basis of tortious interference with inheritance , unjust enrichment , and replevin . Defendants filed a motion to dismiss for failure to join the estate as a party . Defendants argued that the personal representative was an indispensable party under § 733.607 and that plaintiffs lacked standing for failure to join the PR it in the action . The trial court granted defendants ’ motion to dismiss with prejudice . The appellate court reversed . The court held that because the decedent transferred the subject properties prior to
his death , the properties were not part of the decedent ' s estate at the time he died because they had already been conveyed inter vivos ; therefore , the estate is not an indispensable party . In support , the court cited to numerous cases where family members were allowed to pursue claims to set aside inter vivos conveyances without requiring that the PR to be joined as a party to the suit .
Practice Pointer :
Did the PR / trustee refuse to pursue recovery from the third party ? If so , does the PR / trustee have an interest that is adverse to or which conflicts with the interests of the estate / trust ?
Is the transfer at issue an inter vivos / testamentary transfer and therefore not part of the estate / trust ?
Is there more than one affected beneficiary that is not part of the litigation ? If so , it may be necessary to appoint a separate fiduciary ( special fiduciary , administrator ad litem , curator ) to pursue recovery on behalf of all affected beneficiaries .
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