If you are the personal representative of a loved-one\u2019s estate, there are generally three types of property that you\u2019ll encounter during estate administration: real property (homes and land), intellectual (intangible) property, and tangible personal property. This post deals with the last category, tangible personal property, which I will shorten to \u201cTPP\u201d from here on out.<\/p>\n\n\n\n
TPP can pose some very interesting questions and, as you might imagine, lead to squabbles among family members. As personal representative, you will almost certainly encounter one or more of the following TPP classifications: exempt property<\/u>, property named in a separate writing<\/u>, jointly-owned property<\/u>, allegedly gifted property<\/u>, and items that are not<\/i><\/em> considered \u201cprobate property\u201d for the purpose of administration. Since it will be your responsibility to gather and protect the estate\u2019s TPP (called \u201cmarshaling\u201d the property), you may encounter people who don\u2019t want to give up possession of certain items. You\u2019ll need to figure out the best way to assign value to TPP, since things like tax liability and the estate\u2019s inventory depend on your valuation of the property in the estate. And then, eventually, you\u2019ll need to figure out how to distribute the property to heirs and beneficiaries in a way that respects the decedent’s will and the requirements of Florida law.<\/p>\n\n\n\n Obviously, you will have an attorney whose responsibility it is to guide you through all of these issues. In fact, having an attorney is required by Florida law (except in very rare instances), since probate administration is a legally complex task even in relatively simply cases. But it certainly helps to understand the basic property-related issues that occur during the process. Hopefully this will provide you with some answers to the questions & difficulties that you have encountered or might face when trying to deal with your loved one\u2019s \u201cstuff.\u201d This article is divided into the following five broad questions:<\/p>\n\n\n\n There is no technical definition of \u201ctangible personal property\u201d in the Florida Probate Code. \u201cStuff\u201d is probably the best general description of what falls into this classification of property, although there are some surprising things that Florida law deems to be TPP. With some notable exceptions that I will explain below, TPP is all of those things, other than real property, that can be touched – in other words, things that are corporeal. The following are considered TPP for the purpose of estate administration (and equitable distribution during divorce, for that matter):<\/p>\n\n\n\n A side note about pets<\/u>: because they are considered personal property, there is no such thing as court-ordered \u201ctime sharing\u201d of pets in the context of a divorce settlement. The court must determine which party gets the animal, and it\u2019s up to the two parties to privately work out an acceptable living and\/or visiting arrangement. (When you think about it, this makes the most sense. Courts and judges are busy enough without having to enforce \u201cpet parenting plans.\u201dIn Bennett, cited above, a lower court had created a time sharing order for the family\u2019s dog. As you can imagine, one of the parties accused the other of failing to abide by the order and took the ex-spouse to court. The appellate court overturned the lower court\u2019s time sharing order, explaining that while the trial court was trying to be sympathetic and compassionate, this type of court-ordered plan was simply unworkable. Courts don\u2019t have the time for it.)<\/p>\n\n\n\n The following things are <\/i><\/em>NOT<\/i><\/b><\/u><\/em><\/strong> TPP<\/i><\/em>:<\/p>\n\n\n\n Human remains pose an interesting problem and, not surprisingly, disputes often arise in the context of people who don\u2019t agree on where a body should be buried, who gets a decedent\u2019s ashes, or where the ashes should be spread or kept. Since human remains are not considered property, they are not subject to court-ordered division – meaning the court cannot order cremains divvied up between two or more people (which was the question explored in Wilson<\/i><\/em>, cited above). The person who had legal authority to order\/direct the cremation has the right of possession and the right to determine disposition of the remains – but this right of possession is not<\/u> a property right.<\/p>\n\n\n\n This principle was very recently codified at \u00a7 497.607(2), Fla Stat. (2016), which states:<\/p>\n\n\n\n \u201cCremated remains are not property, as defined in s. 731.201(32), and are not subject to partition for purposes of distribution under s. 733.814. A division of cremated remains requires the consent of the legally authorized person who approved the cremation or, if the legally authorized person is the decedent, the next legally authorized person pursuant to 497.005(43). A dispute regarding the division of cremated remains shall be resolved by a court of competent jurisdiction.\u201d<\/p>\n\n\n\n Determining ownership can be a difficult task. For certain items like cars, there will usually be a title that creates a presumption of ownership, although title is only <\/u>evidence<\/b><\/u><\/strong> of ownership and not required<\/u> to prove it. See In re: Kalter<\/i><\/em>, 292 F. 3d 1350 (11th<\/sup> Cir. 2002). Note, however, that a title only creates a presumption; a title can be rebutted, such as by the testimony of a witness who saw a later sale take place. What\u2019s more, most items don\u2019t have a title. Perhaps the dog has registration papers, but otherwise, there is no piece of paper saying \u201cJim Bob hereby owns this Dogs Playing Poker crushed velvet tapestry.\u201d<\/p>\n\n\n\n In situations where ownership may be unclear, it is helpful to remember the old adage about possession<\/u> being 9\/10 of the law. Possession is prima facie evidence of ownership<\/i><\/em>, although this, like title, can be rebutted with evidence demonstrating otherwise. The burden of proof is on the person attacking the apparent title or ownership.<\/p>\n\n\n\n Florida law (\u00a7 732.515, Fla. Stat.) allows an individual to have what is called a \u201cseparate writing\u201d along with his or her will. The separate writing is a list, referenced in the will, that leaves specific TPP to named individuals.The language of the will that refers to the separate writing usually looks something like this: \u201cFrom time to time I may prepare a written memorandum regarding the disposition of all or part of my tangible personal property that I might own at the time of my death\u2026\u201d<\/p>\n\n\n\n The reason separate writings are allowed is because the process for creating and amending a will is very strict and formal, and the law recognizes that it would be too burdensome to create an official amendment (called a codicil) to a will each time the testator decides to change his or her mind about specific personal items. In other words, Uncle Jimmy doesn\u2019t have to go through the formal will amendment process when he decides he would rather give his old watch to his nephew Bob instead of his brother Billy; he can just change his separate writing. This writing can be prepared before or after the creation of the will, so most wills will have a separate writing provision whether one exists or not – just in case the testator decides to make a separate writing later.<\/p>\n\n\n\n There are certain rules, however, about whether separate writings (or the specific provisions contained within them) are valid. A separate writing:<\/p>\n\n\n\n Note that if there is more than one separate writing, and they are in conflict with one another, the one that was written last controls. You can imagine how this may create problems if the testator failed to date the writings or made amendments to items within the writing. If you have a will, it is well worth it to go through your separate writing each year to make sure it still reflects your wishes and is up-to-date with respect to the items you own.<\/p>\n\n\n\n Florida law (\u00a7 732.402, Fla. Stat.) creates exemptions for certain types of TPP, meaning that creditors cannot pursue the property to pay debts, and the property doesn\u2019t go through estate administration. These exemptions only<\/u> apply if there is a surviving spouse or, if no surviving spouse, children of the decedent. (In other words, If there is no surviving spouse and the decedent left no children, the following exemptions don\u2019t apply. There are other types of exempt property that are not TPP, like prepaid tuition plans, and these won\u2019t be discussed here).<\/p>\n\n\n\n Exemptions don\u2019t apply to any property that is specifically devised in the decedent\u2019s will, even if the property would otherwise fall into the statutory category. For example, furniture that is specifically devised in the will to the decedent\u2019s son is not exempt from creditor claims. See Babcock v. Estate of Babcock<\/a><\/i><\/em>, 995 So. 2d 1044 (Fla. 4th<\/sup>\u00a0DCA 2008). However, the law has been updated so that if the person (in the referenced case, the son) appropriately petitions the court to have the property deemed exempt, the court may apply the exemption.<\/p>\n\n\n\n In any case, spouses and children who are entitled to exempt property must<\/u> petition the court to make a determination on the exemptions, and this petition must<\/u> be made within a certain time frame (your attorney can explain those details) or else the exemptions are waived.<\/p>\n\n\n\n Unlike the exempt property listed above, there are two other types of exempt property that inure to a decedent\u2019s heirs at law – and not just the decedent\u2019s surviving spouse and\/or children. One is an exemption found in the Florida Constitution, which protects up to $1,000 of personal property (Article X, Section 4(a)(2)). In addition, up to $1000 of the value of an automobile is protected from creditors under Section 222.25, Fla. Stat. Again, these two exemptions do not only apply to spouses and children; they also apply to the decedent\u2019s heirs generally.<\/p>\n\n\n\n Community property<\/a> (\u201cCP\u201d) is a type of joint ownership that exists in a handful of states other than Florida (see list below). CP status transfers even when a person moves out of the community property state. When property is determined to be CP, it passes pursuant to \u00a7 732.219, Fla. Stat.: one half to the decedent\u2019s spouse (if there is a surviving spouse), and one-half to the decedent\u2019s estate. For the purpose of estate administration, you as the personal representative should be vigilant and notify your attorney<\/u> if the decedent or the decedent\u2019s spouse lived in a community property state at any point<\/u>. These include: Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin<\/b><\/strong>.<\/p>\n\n\n\n It\u2019s very important that your attorney know about the decedent\u2019s time in a community property state, because this can drastically affect how the decedent\u2019s property is handled and whether devises in the decedent\u2019s will are valid and enforceable. When it comes to TPP, any TPP that was purchased with funds that came from the sale of community property real estate counts as community property for the purpose of division and distribution.<\/p>\n\n\n\n The concept of \u201ctenancy by the entireties\u201d or \u201cright of survivorship\u201d is important to know. For this article, I will use the terms interchangeably. Very broadly, they mean that property owned \u201cby the entireties\u201d or with a \u201cright of survivorship\u201d automatically passes by operation of the law to the co-owner after a person\u2019s death; the property is not subject to probate administration.<\/p>\n\n\n\n Both real property and TPP can be owned by the entireties (or with rights of survivorship). Joint bank accounts<\/u> between spouses are presumed under \u00a7 655.79, Fla. Stat., to be owned by the entireties, meaning that when one spouse dies, the rest of the funds automatically pass to the surviving spouse.<\/p>\n\n\n\n However, pursuant to \u00a7 689.15, Fla. Stat., TPP is not<\/u> presumed to be owned by the entireties unless the document creating ownership clearly states that survivorship is intended. In other words, TPP does not automatically pass to a joint owner – it must go through the estate probate process – unless the document showing title or ownership explicitly states that there is a right of survivorship.<\/p>\n\n\n\n There are two laws that come into play when it comes to opening safe deposit boxes after a person\u2019s death<\/a>: Sections 655.937 and 733.6065, Fla. Stat. For our purposes, it is only important to note that there is no presumption that property in a safe deposit box that is held in the names of two or more people creates joint ownership (or survivorship) between them. Thus it is often a race between the joint owner of the deposit box and the personal representative of the estate to get to the box first and ensure that the property inside is obtained. If the joint owner gets to it first, there is really no way for the personal representative to even know or prove that it was ever there (in order to include it in the estate property). If the joint owner gets there first, there is nothing stopping him or her from removing the property inside, despite that there is no automatic presumption under the law that the property in the box belonged jointly to the box holders.<\/p>\n\n\n\n Chapter 319 of the Florida Statutes governs co-ownership of cars. This is a somewhat tricky area of the law and depends on the precise wording of the registration. The following rules apply even if the co-owners are husband and wife<\/u>.<\/p>\n\n\n\n If the registration separates the two (or more) names of the co-owners with the word \u201cor\u201d – as in, \u201cThis car is registered to Betty Boop or Charlie Chaplin\u201d – then either party acting alone can transfer or dispose of the vehicle. Thus, after one of them dies, the other gets ownership by operation of law; the car isn\u2019t probate property, and ownership doesn\u2019t need to be determined in probate proceedings.<\/p>\n\n\n\n If the registration separates the names of the co-owners with the word \u201cand\u201d – as in, this car is registered to Betty Boop and Charlie Chaplin\u201d – then both parties\u2019 signatures are needed to transfer or dispose of the vehicle. See<\/i><\/em> \u00a7 319.22(2)(a)2., Fla. Stat. After one co-owner dies, the car is probate property, and the co-owner must demonstrate proof of ownership and right to possession. Section 319.28, Fla. Stat., provides the rules for transferring title of the vehicle in this situation:<\/p>\n\n\n\n When a person comes across property that appears to be lost or misplaced – or when someone alleges that property that was in the possession of the deceased, or in his or her home, is not actually the deceased\u2019s property – the law divides such items into four basic categories: lost, abandoned, mislaid, and \u201ctreasure trove.<\/a>\u201d For these purposes, we will skip the fourth category; broadly speaking, treasure trove is buried or hidden coin (gold or silver, generally) that has been buried or hidden long enough that the owner is unlikely to come back and claim it. The finder owns it except in certain cases of trespass.<\/p>\n\n\n\n Without getting into the nitty gritty of the law as it applies to lost, misplaced, and abandoned property (which can get pretty complicated), keep in mind that as noted above in the section on title, the burden of proof is on the person who is challenging the presumptive ownership of the individual who has possession of the item. In the context of probate administration, this means that the burden of proof is on the person who is challenging you, the personal representative, by claiming that the item did not actually belong to the decedent.<\/p>\n\n\n\n The critical element that defines abandoned property is that the former owner intended<\/i><\/em> to give up possession of the item. Obviously, when it comes to lost and misplaced items, they are not characterized by any intent to relinquish the property. To avoid a situation in which the title of property stays in a a perpetual state of uncertainty after it is lost or misplaced, Florida law has put a statutory time limit on an owner\u2019s ability to claim lost or misplaced property: six months from the time it is found<\/i><\/em> (not<\/u> the time it is lost, mind you). If six months passes after it is found, and the true owner does not claim the property, it belongs to the finder.<\/p>\n\n\n\n While issues surrounding lost, mislaid, and abandoned property do not come up frequently, they do come up. For example, a somewhat recent case<\/a> concerned an individual who had a habit of hiding things of value around his house and property. After he died, his daughter took possession of his home and eventually sold it. Later, a contractor working on the home for the new owner found several boxes containing items of considerable value. The question was whether the original owner (the man who died) intended<\/i><\/em>\u00a0to give up possession of the boxes. The court found that he did not – that they were lost rather than abandoned (or treasure trove) property. Keep in mind when it comes to that case that this was a jurisdiction that didn\u2019t have Florida\u2019s six-month time limit on claiming lost or mislaid property.<\/p>\n\n\n\n Sometimes during the process of administration, a person will come forward and claim that property that was in the decedent\u2019s possession had actually been gifted to them before the decedent\u2019s death. It is a critical question that must be answered; if the property had properly been given as a gift during the decedent\u2019s lifetime, then it passes by operation of law to the person to whom it was given. If it was not found to be gifted, then the property is part of the decedent\u2019s estate and must be taken through the probate process. See the section on alleged gifts below.<\/p>\n\n\n\n Section 733.607(1), Fla. Stat., gives the personal representative express authority to take possession and control of the decedent\u2019s property (except the protected homestead). It\u2019s best to do this ASAP, and to take pictures of everything, before items start walking off. However, you can leave it to those who are presumptively entitled to it as beneficiaries or heirs, as long as the property is not needed for administration – as when it needs to be sold order to make the estate liquid to pay debts. If you do leave property with the presumptive beneficiary or heir, you want to have a signed, written agreement with them in order to avoid personal liability for damage or loss. See \u00a7 733.812, Fla. Stat.<\/p>\n\n\n\n Some personal representatives get worried about the expense of taking over all of the decedent\u2019s property. Section 733.801, Fla. Stat. states that the storage, sale, and inventory of TPP can be charged to the estate as an expense of the administration (and this is in addition to the 3% that the personal representative gets paid from the estate for his or her time and effort).<\/p>\n\n\n\n Sometimes it is not enough for the personal representative to request that a person turn over property. As you can imagine, there may be disputes as to whether they are required to give up the property, or whether the property actually belongs to the estate or is perhaps exempt from administration. If a person refuses to relinquish control and possession to the personal representative, the PR must file an action before the court to determine whether the property must be given up to the PR, per \u00a7 733.607, Fla. Stat. If the person who refuses to turn over property damages or loses it, that person is liable to the personal representative for the value lost but only as long as the PR made a request to obtain possession, and the request was denied<\/u>. This is another reason why it\u2019s important to start marshaling assets as quickly as possible and to document what happens as thoroughly as possible – to avoid liability issues.<\/p>\n\n\n\n Unfortunately, litigation over disputed property can take a long time. One can petition the court to freeze the estate\u2019s assets under these circumstance. This is also a good situation in which to get a curator<\/b><\/u><\/strong><\/a> to take over and safeguard the property; a curator is an independent third party who is appointed by the court for the express purpose of taking care of estate property when there are disputes as to its legal status (i.e., who owns it) vis a vis the estate.<\/p>\n\n\n\n\n
WHAT IS TANGIBLE PERSONAL PROPERTY?<\/h2>\n\n\n\n
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WHO OWNS TPP?<\/h2>\n\n\n\n
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General Provisions<\/h3>\n\n\n\n
Separate Writings<\/h3>\n\n\n\n
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Exempt Property<\/h3>\n\n\n\n
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Community Property<\/h3>\n\n\n\n
Joint Ownership<\/h3>\n\n\n\n
<\/i><\/b>Joint Safe Deposit Boxes<\/i><\/b><\/em><\/strong><\/h4>\n\n\n\n
Jointly-Owned Automobiles<\/h4>\n\n\n\n
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Lost, Abandoned, and Mislaid Property; Gifts<\/h3>\n\n\n\n
Loss, Abandoned, And Mislaid Property<\/h4>\n\n\n\n
Gifts<\/h4>\n\n\n\n
HOW DOES THE PERSONAL REPRESENTATIVE TAKE POSSESSION OF TPP?<\/h2>\n\n\n\n
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General Issues<\/h3>\n\n\n\n
Costs of Marshaling and Storage<\/h3>\n\n\n\n
Disputed Property<\/h3>\n\n\n\n
Alleged Gifts<\/h3>\n\n\n\n