Taxation & Estate Planning

4th DCA says NO to lien on homestead property to pay curator's attorney's fees

By Juan C. Antúnez

Herrilka v. Yates, --- So.3d ----, 2009 WL 1531772 (Fla. 4th DCA June 03, 2009)

Homestead property is something probate lawyers deal with in almost every estate-administration  proceeding, but it's NOT a probate asset. This disconnect is a source of never-ending client consternation and attorney heartburn. The linked-to case is a prime example.

In this hotly-contested estate the court appointed a curator and this curator set about doing what curators do. Apparently there wasn't enough cash in the estate to pay for this work, so the curator asked the judge (who had appointed her) to please put a lien on what may have been the decedent's single most valuable asset - his homestead property - to pay her fees. The court obliged her . . .  and was reversed on appeal.

The probate court's order was reversed for two reasons: [1] the decedent's alleged spouse occupied the house at all times - so the curator never actually took possession of the property (strike one); and [2] the curator's work related to general estate-administration matters - not preserving the homestead property (strike two). The statute governing this dispute is F.S. 733.608, and the 4th DCA does an excellent job of explaining it:

The trial court's decision to impose the lien pursuant to section 733.608 was improper because, in accordance with the plain meaning of the statute, Yates failed to meet its requirements. This is because: (1) Yates has not, and cannot, take possession of the property, as it is occupied by an 'interested person;' and (2) the fees incurred by Yates for which the lien was imposed were not incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property.

With respect to section 733.608, subsection (3) allows for imposition of a lien on 'property referenced in subsection (2).' § 733.608(3). The property referenced in subsection (2) is 'protected homestead' that 'is not occupied by a person who appears to have an interest in the property' which the personal representative has 'take[n] possession of ... for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property.' Id. § 733.608(2). For purposes of probate litigation, the Florida Legislature has defined an 'interested person' as 'any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.' Id. § 731.201(23). In order to impose a lien, section 733.608(3) also requires that the 'expenditures and obligations incurred,' which include 'fees and costs,' for which the lien is imposed were incurred for the purpose of 'preserv[ing], maintain[ing], insur[ing], or protect[ing]' the homestead property.

In this case, the trial court erred in imposing the lien because the homestead property was never taken into possession, either legally or factually, by Yates, as Constance still occupies it. This failure to take possession negates a claim for the imposition of the lien because, to do so, section 733.608 first requires that the personal representative take possession of the property 'for the limited purpose of preserving, insuring, and protecting it.' § 733.608(2). Furthermore, Yates cannot legally take possession of the property because it is 'occupied by a person who appears to have an interest in the property,' id., i.e., Constance. Constance is an 'interested person' because, by potentially being Joseph's surviving spouse and joint owner of the property, as well as being the property's current occupant, she is a 'person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.' Id. § 731.201(23).

Even if Yates met the threshold possession requirement of section 733.608, the lien was still not properly imposed. This is because the expenses the lien represents were incurred for legal services having to do with the administration of the Estate. The services, as required by section 733.608(3), were not incurred for the specific purpose of preserving, maintaining, insuring, or protecting the homestead property.

Accordingly, the imposition of the lien was improper because it failed to meet the requirements of section 733.608. We, therefore, reverse its imposition.

Full post as published by Florida Probate Litigation Blog on June 07, 2009 (boomark / email).