2013 Florida Statutes
General power of the personal representative.
General power of the personal representative.
733.608 General power of the personal representative.—
(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.
(2) If property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status. If the personal representative takes possession of that property, any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive.
(3) If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures and obligations incurred, including, but not limited to, fees and costs, shall constitute a debt owed to the personal representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section. The debt shall include any amounts paid for these purposes after the decedent’s death and prior to the personal representative’s appointment to the extent later ratified by the personal representative in the court proceeding provided for in this section.
(a) On the petition of the personal representative or any interested person, the court having jurisdiction of the administration of the decedent’s estate shall adjudicate the amount of the debt after formal notice to the persons appearing to have an interest in the property.
(b) The persons having an interest in the protected homestead shall have no personal liability for the repayment of the above noted debt. The personal representative may enforce payment of the debt through any of the following methods:
1. By foreclosure of the lien as provided in this section;
2. By offset of the debt against any other property in the personal representative’s possession that otherwise would be distributable to any person having an interest in the protected homestead, but only to the extent of the fraction of the total debt owed to the personal representative the numerator of which is the value of that person’s interest in the protected homestead and the denominator of which is the total value of the protected homestead; or
3. By offset of the debt against the revenues from the protected homestead received by the personal representative.
(4) The personal representative’s lien shall attach to the property and take priority as of the date and time a notice of that lien is recorded in the official records of the county where that property is located, and the lien may secure expenditures and obligations incurred, including, but not limited to, fees and costs made before or after recording the notice. The notice of lien may be recorded before adjudicating the amount of the debt. The notice of lien shall also be filed in the probate proceeding, but failure to do so does not affect the validity of the lien. A copy of the notice of lien shall be served in the manner provided for service of formal notice upon each person appearing to have an interest in the property. The notice of lien must state:
(a) The name and address of the personal representative and the personal representative’s attorney;
(b) The legal description of the property;
(c) The name of the decedent and also, to the extent known to the personal representative, the name and address of each person appearing to have an interest in the property; and
(d) That the personal representative has expended or is obligated to expend funds to preserve, maintain, insure, and protect the property and that the lien stands as security for recovery of those expenditures and obligations incurred, including, but not limited to, fees and costs.
Substantial compliance with the foregoing provisions renders the notice in comportment with this section.
(5) The lien shall terminate upon the earliest of:
(a) Recording a satisfaction or release signed by the personal representative in the official records of the county where the property is located;
(b) The discharge of the personal representative when the estate administration is complete;
(c) One year from the recording of the lien in the official records unless a proceeding to determine the debt or enforce the lien has been filed; or
(d) The entry of an order releasing the lien.
(6) Within 14 days after receipt of the written request of any interested person, the personal representative shall deliver to the requesting person at a place designated in the written request an estoppel letter setting forth the unpaid balance of the debt secured by the lien referred to in this section. After complete satisfaction of the debt secured by the lien, the personal representative shall record within 30 days after complete payment, a satisfaction of the lien in the official records of the county where the property is located. If a judicial proceeding is necessary to compel compliance with the provisions of this subsection, the prevailing party shall be entitled to an award of attorney’s fees and costs.
(7) The lien created by this section may be foreclosed in the manner of foreclosing a mortgage under the provisions of chapter 702.
(8) In any action for enforcement of the debt described in this section, the court shall award taxable costs as in chancery actions, including reasonable attorney’s fees.
(9) A personal representative entitled to recover a debt for expenditures and obligations incurred, including, but not limited to, fees and costs, under this section may be relieved of the duty to enforce collection by an order of the court finding:
(a) That the estimated court costs and attorney’s fees in collecting the debt will approximate or exceed the amount of the recovery; or
(b) That it is impracticable to enforce collection in view of the improbability of collection.
(10) A personal representative shall not be liable for failure to attempt to enforce collection of the debt if the personal representative reasonably believes it would have been economically impracticable.
(11) The personal representative shall not be liable for failure to take possession of the protected homestead or to expend funds on its behalf. In the event that the property is determined by the court not to be protected homestead, subsections (2)-(10) shall not apply and any liens previously filed shall be deemed released upon recording of the order in the official records of the county where the property is located.
(12) Upon the petition of an interested party to accommodate a sale or the encumbrance of the protected homestead, the court may transfer the lien provided for in this section from the property to the proceeds of the sale or encumbrance by requiring the deposit of the proceeds into a restricted account subject to the lien. The court shall have continuing jurisdiction over the funds deposited. The transferred lien shall attach only to the amount asserted by the personal representative, and any proceeds in excess of that amount shall not be subject to the lien or otherwise restricted under this section. Alternatively, the personal representative and the apparent owners of the protected homestead may agree to retain in escrow the amount demanded as reimbursement by the personal representative, to be held there under the continuing jurisdiction of the court pending a final determination of the amount properly reimbursable to the personal representative under this section.
(13) This act shall apply to estates of decedents dying after the date on which this act becomes a law.
History.—s. 1, ch. 74-106; s. 29, ch. 77-87; s. 131, ch. 2001-226; s. 10, ch. 2003-154; s. 15, ch. 2010-132.
Note.—Created from former s. 733.01(1).