DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ORI AVRAHAM GORDIN and TERESA SHELLEY, as personal 

representatives,

Appellants,

v.

ESTATE OF SHELLEY WILENSKY SHELLEY MAISEL, a/k/a SHELLEY 

W. SHELLEY, and DANIEL W. SHELLEY,

Appellees.

No. 4D14-2228

[November 25, 2015]

Appeal of a non-final order from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Peggy Gehl, Judge; L.T. Case No. 

PRC14002380 (60).

Manuel Kushner of Kaye Scholer LLP, West Palm Beach, for appellants.

Janine Kalagher McGuire of Conrad & Scherer, LLP, Fort Lauderdale, 

for appellees.

CONNER, J.

Ori Avraham Gordin and Teresa Shelley, as the personal 

representatives of the estate of Shelley Wilensky, appeal the probate

court’s order granting Daniel Shelley’s petition to appoint a curator for the 

estate. The personal representatives argue that the probate court erred in 

appointing a curator without revoking their appointment as personal 

representatives. We agree, and reverse. 

Factual Background and Trial Proceedings

Daniel Shelley and Teresa Shelley are children of the decedent; Ori 

Gordin is a grandson. The decedent died leaving a will appointing Gordin 

as personal representative of his estate. After the decedent’s death, Gordin 

filed a petition for administration as the person chosen to serve as personal 

representative by the decedent. The probate court entered an order 

admitting the decedent’s will to probate, and appointing Gordin and Teresa 
2

Shelley as co-personal representatives. Theresa was appointed as copersonal representative because Gordin was on active duty in the military.

Daniel Shelley, the appellee, filed a petition for revocation of the will, 

claiming that: (1) the deceased was domiciled in Puerto Rico when he died, 

and under the laws of Puerto Rico, although the appellee was disinherited 

under the will, he was entitled to a “forced share” of the estate; (2) the 

decedent lacked testamentary capacity when he executed the will, and he 

did so under the undue influence of Teresa Shelley; and (3) the decedent 

had three previous wills, all executed in Puerto Rico. The following day, 

the appellee filed a petition for administration, seeking to admit one of the 

decedent’s previous wills to probate and to appoint himself as the personal 

representative of the estate. The appellee also sought to have the probate 

administration transferred to Puerto Rico. 

Subsequently, the appellee filed a motion to remove the personal 

representatives and to appoint a curator. Shortly thereafter, the personal 

representatives filed an amended petition for administration, and on the 

same date, the letters of administration were issued, again appointing 

Gordin and Teresa Shelley as co-personal representatives.

After the reappointment of the personal representatives, a hearing was 

held on the appellee’s motion to appoint a curator. After hearing argument 

from both parties’ attorneys, and without hearing evidence from witnesses 

or having the benefit of documents submitted into evidence, the probate

court appointed an attorney as curator.1 The order appointing the curator 

did not address the previously issued letters of administration, thus 

facially leaving the letters of administration in place. The probate court 

subsequently issued letters of curatorship, stating:

NOW, THEREFORE, I, the undersigned Circuit Judge, do 

grant [Curator’s name], the curatorship of the Estate, with full 

power of a personal representative to administer the estate 

according to law, to collect and preserve the assets that 

belonged to the Decedent in his lifetime, at the time of his 

death and as collected by his Estate, and to ask, demand, sue 

for, recover, receive and sell these assets for the Estate; and 

all persons in possession of assets of the Decedent and records 

of the Estate are ordered and directed to deliver them to

[Curator’s name], as Curator.

1 The order was entered by a judge from another division of the circuit court filling 

in for the probate judge.
3

(emphasis added). The personal representatives gave notice of this appeal. 

Appellate Analysis

As an initial matter, the appellee filed a motion to dismiss this case for 

lack of jurisdiction. We determine that we have jurisdiction pursuant to 

Florida Probate Rule 5.100 and Florida Rule of Appellate Procedure 

9.130(a)(3)(C)(ii), as this is a case determining the right to immediate 

possession of property. 

Since the issue presented before us is a question of pure law, we review 

the case de novo. Bosem v. Musa Holdings, Inc., 46 So. 3d 42, 44 (Fla. 

2010).

The personal representatives argue the probate court erred in 

appointing the curator on both substantive and procedural grounds.

Since we agree that the probate court erred in appointing the curator on

substantive grounds, we do not address the procedural grounds.

The personal representatives argue, as a matter of substantive law, it 

is legally improper to simultaneously have a curator and a personal 

representative acting on behalf of an estate. 

Although there is little guidance as to the precise situations in which a 

curator should be appointed for an estate proceeding, there are a few cases 

and statutes that are instructive. 

In In re Estate of Miller, 568 So. 2d 487, 488 (Fla. 1st DCA 1990), the 

First District addressed an appeal in which the probate court granted the 

decedent’s half-brother’s motion to appoint a curator when a petition was 

pending to appoint the decedent’s nephew as the personal representative 

of the estate. The decedent’s will named the nephew as the sole heir of the 

estate and designated him to serve as personal representative. Id.

Similarly to the instant case, the half-brother in Miller alleged that the 

nephew exerted undue influence on the decedent in the execution of the 

will, and that he was mishandling the assets of the decedent’s estate. Id.

The Miller court stated that, “[a]lthough the circumstances calling for 

the appointment of a curator are not specified in the statute, a typical 

situation is where there is a delay in the appointment of a personal 

representative and a fiduciary is needed to take charge of the estate 

assets.” Id. at 489 (emphasis added). Thus, Miller spoke in terms of a 

“typical situation,” and not a stated requirement for the appointment of a 

curator. The First District reversed the order appointing the curator 
4

because the court reasoned that the petition to appoint a personal 

representative should have been resolved before considering the 

appointment of a curator. Id.

Additional support for the personal representatives’ argument that the 

curator should not have been appointed to serve at the same time the 

personal representatives were serving can be found in the definitions

within the Florida Probate Code. Section 731.201, Florida Statutes (2014), 

defines a “curator” as “a person appointed by the court to take charge of 

the estate of a decedent until letters are issued.” § 731.201(8), Fla. Stat. 

(2014) (emphasis added). Additionally, “letters” is defined in the Probate 

Code as “authority granted by the court to the personal representative to 

act on behalf of the estate of the decedent and refers to what has been 

known as letters testamentary and letters of administration.” §

731.201(24), Fla. Stat. (2014). These definitions indicate that the 

legislature intended that a curator be appointed before the letters of 

administration are issued to personal representatives. See also In re Sale’s 

Estate, 227 So. 2d 199, 202 (Fla. 1969) (“[A] Curator is ordinarily 

appointed only as a temporary expedient to take possession of and preserve 

the assets of the estate until a personal representative may be appointed . 

. . .”)2 (emphasis added). In the instant case, the curator was appointed 

after the personal representatives were appointed and after the letters of 

administration were issued, at a time when much of the estate remained 

to be administered. 

The appellee responds that the personal representatives’ argument that 

a curator cannot be appointed without revoking their appointment as 

personal representatives “flies in the face of the trial court’s responsibility 

to take whatever actions it deems appropriate to protect the estate’s assets 

and is an exercise in form over substance.” However, this argument lacks 

merit because the concurrent service of a personal representative and 

curator cannot be legally justified.

2 Although In re Sale’s Estate further states a curator may be appointed 

“conceivably, after an estate is ready for distribution and an heir is missing, to 

take possession of and preserve the share of the estate to which such heir is 

entitled pending a search for him and his heirs,” 227 So. 2d at 202, in such a 

situation, the services of the personal representative would be terminated, and 

the curator would remain appointed only until the lost heir’s property can be 

legally disposed. It is also conceivable that a curator might be appointed to take 

control of and marshal an asset over which there is a dispute as to whether the 

decedent owned the asset at the time of death.
5

In viewing the powers and duties of the personal representatives and 

the curator, the reason that the concurrent representation is not only 

problematic, but legally unjustifiable, is clearly seen. Since the curator in 

the instant case was given the “full power of a personal representative,” 

which is specifically authorized by section 733.501(1), Florida Statutes

(2014) (“The curator may be authorized to perform any duty or function of 

a personal representative.”), there is an inherently conflicting scenario 

created when both a curator and a personal representative are 

simultaneously authorized to act on behalf of the estate. An intolerable 

situation is created because two representatives with logically speaking 

different functions (hence the difference in title), separate but equal, have 

virtually the same power to exert over an estate. In such situations, 

neither the heirs nor the creditors have a clear understanding of who is in 

control of the estate.

The appellee makes no argument that this is a case in which the curator 

was appointed to serve as a joint personal representative. Joint personal 

representatives have legally defined roles in regards to an estate. Section 

733.615, Florida Statutes (2014), requires that, if there are joint personal 

representatives, certain procedures for decisions made, as well as certain 

protections, apply to the joint personal representatives. § 733.615, Fla. 

Stat. (2014). The statute serves to set forth a procedure if there is a 

disagreement between personal representatives on how to administer an 

estate. However, in this case, the curator was not appointed as a joint 

personal representative, but instead, as a separate court agent with the 

same powers.3 It is easy to see how this would be problematic, considering 

that there could be conflicting opinions on how to make decisions 

regarding an estate. Since the curator is not a joint personal 

representative, section 733.615 does not provide an applicable procedure 

for resolving these conflicting opinions.

As an additional source of support for their argument, the personal 

representatives point to Florida Probate Rule 5.122. Rule 5.122(e) states: 

“When the personal representative is appointed, the curator shall account

for and deliver all estate assets in the curator’s possession to the personal 

representative within 30 days after issuance of letters of administration.” 

(emphasis added). This rule again demonstrates that the role of a personal 

representative is intended to succeed the role of a curator in the 

3 Despite granting the curator the same powers of a personal representative, if 

the probate court had intended to appoint the curator as a de facto personal 

representative, it would seem the probate court would have mentioned in the 

appointment order the status of the other two personal representatives and made 

clear an intent to treat the curator as a joint personal representative.
6

administration of an estate. Once a personal representative is appointed, 

the curator is duty-bound under the rule to deliver the assets of the estate 

to the personal representative. Since the personal representatives in the 

instant case were appointed and never removed, the concurrent 

appointment of the curator could require a never-ending, and insatiable,

transfer loop between the curator and the personal representatives: the 

trial court’s order requires possessors of assets of the estate (the personal 

representatives) to give the assets to the curator, and the rules require the 

curator to give possession of these same assets to the personal 

representatives. 

We can envision a situation in which a probate court might remove a 

personal representative and appoint a curator to serve until a successor 

personal representative can be appointed. We can also envision a 

situation in which a probate court may determine it is best to temporarily 

revoke or suspend letters of administration issued to a personal 

representative because a prima facie case is made for grounds for removal, 

but extensive evidentiary hearings may be needed to make a final decision 

as to whether the letters should be permanently revoked. In such 

situations, it may be appropriate to appoint a curator to administer the 

estate on a temporary basis. However, the personal representatives in the 

instant case were not temporarily removed and their powers were not 

temporarily suspended.

4 

For the above reasons, we hold that the appointment of the curator,

without the temporary or permanent revocation or temporary suspension 

of letters issued to the personal representatives, was error and reverse the 

probate court’s order appointing the curator. We remand the case for 

proceedings consistent with this opinion.

Reversed and remanded.

STEVENSON and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

4 Since there are certain requirements and findings that must be made in order 

for a personal representative to be removed, the probate court’s order appointing 

the curator cannot be viewed as implicitly removing the personal representatives. 

See Blechman v. Dely, 138 So. 3d 1110, 1114 (Fla. 4th DCA 2014) (“Florida 

Probate Rule 5.440 sets forth the procedures that must be followed for removal 

of a personal representative.”); see also Fla. Prob. R. 5.400.