### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

ORI AVRAHAM GORDIN and TERESA SHELLEY
, as personal representatives, Appellant s ,

v.

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

W. SHELLEY, and DANIEL W. SHELLEY
,

Appellee s

.

No. 4D 14

- 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 appell ants.

Janine Kalagher McGuire of Conrad & Scherer, LLP, Fort Lauderdale, for appellees.

C ONNER

, J

.

Ori Avraham Gordin and Teresa Shelley , as the p ersonal

r epresentatives 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 p ersonal r epresentatives argue that the probate court erred in appointing a curator without revoking their appointment as personal representatives

. We agree, and r everse.

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 appoint ing 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. T he probate court entered an order admitting the decedent’s w ill to probate, and appointing Gordin and Teresa2

Shelley as co

- personal representatives. Theresa was appointed as co

personal representative because Gordin was on active duty in the military.

Daniel Shelley, the appellee, filed a petition for revocation of the w ill, claiming that: (1) the deceased was domiciled in Puerto Rico when he died, and under the laws of Puerto Rico, although t he appellee was disinherited

under the w ill, he was entitled to a “forced share” of the e state; (2) the decedent lacked testamentary capacity when he executed the w ill, 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 e state

. The appelle e also sought to have the probate

administration transferred to Puerto Rico.

Subsequently, the appellee filed a motion to remove the p ersonal

r epresentatives and to appoint a curator

. Shortly thereafter , the p ersonal

r epresentatives 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 submit ted into evidence, the probate court appointed an attorney as curator. 1 The order appointing the c urator did not address the previously issued letters of administration, thus facially leaving the letters of administration in place. T he probate court
subs equently issued letters of curatorship , stat ing :

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). Th e personal representatives g a ve 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

p ossession of property.

Since the i ssue 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 p ersonal r eprese ntatives 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 c urator on substantive grounds , we do not address the procedural grounds

.

The p ersonal r epresentatives 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.

I n 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 representa tive

. 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.

T he Miller court state d 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 e state
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 curator4

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 p ersonal r epresentatives’ argument that the

c urator should not have been appointed to serve at the same time the

p ersonal r epresentatives were serving can be found in the definition s with in 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 de cedent 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 an d refers to what has been known as letters testamentary and letters of administration.” § 731.201(24), Fla. Stat. (2014). T hese definitions indicate that the legislature intended that a curator be appointed before th e 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 c urator 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 administe red

.

The appellee respon d s that the p ersonal r epresentatives’ 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 prote c t the estate’s assets

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

merit because the concur rent s ervice 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

, ” 22 7 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 appoi nted 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 an d duties of the p ersonal r epresentatives and

the c urator, the reason that the concurrent representation is not only problematic , but legally unjustifiable , is clearly seen. S ince the c urator 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 a n 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 speakin g 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.

Th e 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. S ection 733.615, Florida Statutes (2014), re quires 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). Th e statute serves to set forth a procedure i f there is a disagreement between personal representatives on how to administer an

estate. However, in this case, the c urator was not appointed as a joint personal representative, but instead, a s 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 . S ince the c urator is not a joint personal representative, section 733.615 does not provide an applicable procedure

for r esolving these conflicting opinions.

As an additional source of support for the ir argument, the p ersonal

r epresentatives 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 sta tus 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 . On ce 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 p ersonal r e presentatives 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 c urator and the p ersonal r epresentatives: the trial court’s order requires possessors of assets of the e state (the personal representatives) to give the assets to the c urator, and the rules require the

c urator to give possession of these same assets to the p ersonal

r epresentatives.

We can envision a situation in which a proba te 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 p ersonal r epresentatives in the

instant case were not temporarily removed and their powers were not temporarily suspended

. 4

For the above reasons, w e hold that the appointment of the c urator

, with out the temporary or permanent revocation or temporary suspension

of letters issued to the p ersonal r epresentative s, was error and reverse the probate court’s order appointing the curator. We remand the case for proceedings consistent with this opinion.

Revers ed and remanded.

S TEVENSON and G ERBER
, 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 p ersonal r epresentatives. 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.