PROBATE CORNER
Relation Back of Personal Representative ’ s Powers
DAVID M . GARTEN
Post death , certain activities may be needed to preserve the assets of the decedent ’ s estate and arrange for the decedent ’ s funeral and burial [§ 497.005 ( 43 )( a )] prior to the appointment of a personal representative (“ PR ”). The necessity to undertake these preadministration activities is recognized by § 733.601 , F . S . which validates the activities of the PR prior to his / her appointment . This statute reads : “ The duties and powers of a personal representative commence upon appointment . 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 .” [ Emphasis added ]. The following cases are instructive :
In Berges v . Infinity Insurance Co ., 896 So . 2d 665 ( Fla . 2004 ), Berges was the defendant in a wrongful death action . After receiving an adverse jury verdict that substantially exceeded his policy limits , Berges sued his insurance company claiming it had acted in bad faith by failing to settle or to advise him of a settlement offer made by the decedent ' s husband . The jury agreed with Berges , finding that the insurance company acted in bad faith , and the trial court entered an amended final judgment in favor of Berges , which the insurance company appealed . On appeal , the Second District reversed , finding that , since the decedent ' s husband had not been appointed as PR when he offered to settle the case , he was without the authority to make a valid settlement offer . The Second District found that the insurance company , therefore , as a matter of law , could not have acted in bad faith in failing to advise Berges of the offer . The Florida Supreme Court , however , reversed the Second District rejecting its conclusion that a settlement offer for a wrongful death claim is not valid if the person who made the offer has not yet been appointed as a PR . The court explained that : “ the statutory scheme governing estates anticipates valid negotiations prior to court involvement . Specifically , the legal acts of a personal representative relate back after court appointment , thereby validating the previous acts of the personal
representative on behalf of the estate . Thus , the statutory schemes governing both minor and estate claims contemplate the completion of settlement negotiations prior to court approval . This scheme is consistent with the purposes of settlement , which are to simplify and shorten litigation , save costs to parties , and ease the burden on the courts by obviating the necessity of trial .” The Florida Supreme Court , therefore , concluded that the Second District erred in determining that the decedent ' s husband did not make a valid offer to settle the case .
In Depriest v . Greeson , 213 So . 3d 1022 ( Fla . 1st DCA 2017 ), the court found that the PR had no legal duty to prevent the decedent ' s daughter from using the decedent ' s car after his death and prior to his appointment . Thus , plaintiffs could not demonstrate implied consent , which was an essential element of their claim under the dangerous instrumentality doctrine , following the decedent ' s daughter getting into a motor vehicle accident with them .
In Estate of Harrison , 2010 Bankr . LEXIS 306 ( Bankr . M . D . Fla . 2010 ), the debtor was a United States citizen who owned assets in Florida and the United Kingdom . Almost two years after his death , counsel sent a letter to one of his English creditors disclosing Florida real estate . One day after the expiration of the two-year non-claim period under § 733.710 , the debtor ’ s son filed to open a probate in Florida and was appointed PR . The creditor filed an involuntary bankruptcy case in England against him . The debtor was declared “ bankrupt ” under English law and a trustee was appointed . The Florida court held that prior to his appointment , the PR had no fiduciary relationship with the English creditors and had no duty to notify them of the Florida legal structure or their opportunity to open a probate estate or file a claim . It was not a breach of duty for him to keep his silence for two years and a day . The existence of a Florida asset was disclosed before the expiration of the two-year period , and it was incumbent on the English creditors to familiarize themselves with Florida law , open a probate , and file a claim . In addition , the court rejected the fraudulent transfer and equitable lien claims .
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PBCBA BAR BULLETIN 18