A Relative Took Property? Get Clear Answers From a Coral Gables Probate Litigation Attorney

If a family member took property before probate Florida courts ever opened an estate, the heirs and beneficiaries left behind still have options. A relative who removes jewelry, cash, vehicles or account funds may be asked to return them, and a court can be asked to step in. This page explains what counts as property taken before probate, which civil claims may apply, what evidence to keep now and the steps that usually follow.

What Counts as Property Taken Before Probate in Florida

Property taken before probate is anything a relative removed after the death but before a court opened the estate. Common examples include jewelry, cash, vehicles, furniture and household contents, bank and investment accounts, and personal papers. List each item and note where it came from, because a home and an account raise different questions.

Next of kin and beneficiaries are not always the same people. When there is no will, Fla. Stat. § 732.103 provides that the part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends first to the decedent’s descendants. If there are none, it goes to the decedent’s father and mother, and then to brothers and sisters and their descendants (§ 732.103).

A beneficiary is different. Florida defines a beneficiary as an heir at law in an intestate estate or a devisee in a testate estate (§ 731.201). A devisee is a person designated in a will or trust to receive a devise. A sibling can be next of kin and still receive nothing under a will that names someone else. That difference changes which steps are open to each person.

Some assets pass outside probate, such as joint accounts, payable-on-death accounts and accounts with named beneficiaries. Removing those funds can still raise a claim. The key questions are who owned the money and how the account was set up.

Civil Claims That May Apply to Property a Relative Took

Heirs and beneficiaries may have civil claims when a relative takes property that belongs to an estate or to another heir. The right claim depends on the facts of each case.

• Lawyers often call one version of this claim conversion.
• Courts look closely at the proof for this type of claim.
• Recovering estate property. Section 736.1001 applies to trustees: a trustee’s violation of a duty owed to a beneficiary is a breach of trust. A personal representative’s right to take possession of estate property is covered by a different section (§ 733.607). The personal representative may also sue to recover possession of property (§ 733.607).
• Removing a personal representative. A court may remove a personal representative for causes that include failing to account for property and wasting or maladministration (poor management) of the estate (§ 733.504).

Timing matters. Property that is moved, sold or spent is harder to trace, so early steps can make a difference.

Who Can Bring a Claim, and When a Relative Is the Personal Representative

Heirs, beneficiaries and other interested persons can ask a court to act. Florida defines an interested person as anyone who may reasonably be expected to be affected by the outcome of a proceeding (§ 731.201). A personal representative (often called an executor) is treated as an interested person in any proceeding affecting the estate.

A personal representative is a fiduciary. That person must observe the standards of care that apply to trustees (§ 733.602). The duty is the same as a trustee’s duty under an express trust. A personal representative is liable to interested persons for loss caused by a breach of that duty (§ 733.609).

What if the relative who took the property is the personal representative, or is about to be appointed? Tell your lawyer early. Holding conflicting or adverse interests against the estate is one listed cause for removal (§ 733.504). Fla. Stat. § 733.504 reads: “This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.” Compensation is also set by statute. A personal representative may take a commission from estate assets for ordinary services (§ 733.617).

Evidence to Preserve Right Away

Start by recording what was there and what has changed. Good records make a claim easier to prove.

• Photos and video of the home, closets, safes and rooms, compared with any earlier images you have.
• Insurance schedules, appraisals, receipts and any list of valuables.
• Bank and brokerage statements showing withdrawals, transfers, new signers or changed beneficiary forms.
• The death certificate and any will, trust or beneficiary forms.
• Texts, emails and letters where the relative mentions taking or moving property.
• Names of witnesses, such as neighbors, caregivers or movers who saw items removed.

If the decedent leased a safe-deposit box, the first opening must take place in the presence of any two of several people. Those people include an employee of the institution and the personal representative or the personal representative’s attorney. The personal representative must file the box inventory, together with a copy of the box entry record from a date 6 months prior to the date of death to the date of inventory, with the court within 10 days after the box is opened (§ 733.6065). Fla. Stat. § 733.6065 reads: “Unless otherwise ordered by the court, this inventory and the attached box entry record is subject to inspection only by persons entitled to inspect an inventory under s. 733.604(1).”

Once a personal representative is appointed, the personal representative must file a verified inventory of the estate unless one has already been filed (§ 733.604); a safe-deposit box inventory is filed within 10 days after the box is opened (§ 733.6065). It lists each item with its estimated fair market value at the date of death (§ 733.604). A beneficiary can ask in writing how an inventory value was set. A residuary beneficiary or heir in an intestate estate may receive this for all inventoried assets, and any other beneficiary for the assets distributed or proposed to be distributed to that beneficiary (§ 733.604).

Keep originals, and do not alter records. Avoid confronting the relative in ways that could lead to more removal.

How the Recovery Process Works, Step by Step

The process usually moves from a first consultation to a document review, a written demand and, only if needed, court action.

1. Free first consultation. The first consultation is free and confidential, with no obligation to continue. You explain what was taken, who took it and what papers you have.
2. Document review. The firm reviews the will, trust or account records. It builds a written list of what is missing, what remains and what evidence exists.
3. Written demand. A demand for return or an accounting goes to the relative or institution holding the property.
4. Court steps if needed. Depending on the facts, the matter may move into a probate proceeding or a civil action.
5. Resolution. The matter may end in a negotiated return, a settlement or a court judgment. Timelines vary with the complexity of the case.

Complete records make every step easier, so start gathering them now.

Why Trust Counsel Handles This Matter

Trust Counsel is a Florida trusts and estates law firm that represents beneficiaries, heirs and fiduciaries in probate and trust disputes. The firm’s only office is in Coral Gables, and it serves clients in Florida.

• Practice focus. The firm focuses on probate litigation, trust litigation, trust administration, guardianship and estate planning.
• Responsible lawyer. Leslie V. Marenco is the responsible lawyer for this page. The firm’s lawyers include Leslie V. Marenco and Tanya Vega, supported by assistants and office staff.
• Fiduciary roles. Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries.
• Firm role. The firm itself does not serve as trustee or personal representative.

Frequently Asked Questions

Being next of kin and being a beneficiary are not always the same thing. The two groups can overlap.