ANGELUS v. Pass
| Decision Date | 11 February 2004 |
| Docket Number | No. 3D03-1768.,3D03-1768. |
| Citation | 868 So.2d 571 |
| Parties | Adriaan ANGELUS, Appellant, v. Henry I. PASS, Esquire, Appellee. |
| Court | Florida District Court of Appeals |
Wolfe & Goldstein, and Pathman Lewis, and Richard Wolfe, Miami, and Marc Pugliese, Coral Gables, for appellant. Greenberg Traurig, and Elliot H. Scherker, and Marlene K. Silverman, and Barry Rothberg, Miami, and Pamela A. DeBooth, for appellee.
Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
Appellant, Adriaan Angelus ("Angelus"), appeals an adverse order denying her petition to remove appellee, Henry Pass ("Pass") from serving as personal representative of the estate of her deceased mother. We reverse.
Angelus's mother passed away on December 25, 2001. Her will nominated Pass, an attorney, as co-personal representative of the estate, and provided that neither personal representative was to receive any fees or commissions. Six days later, Pass filed a petition for administration which admitted that Pass was a nonresident of Florida, but verified under oath that Pass was the decedent's nephew. Relying upon these representations made under oath, the trial court entered an order admitting the will to probate and appointing Pass as co-personal representative. Thereafter, Pass filed a motion to renounce the will's compensation provisions by electing to be compensated for services under Section 733.617, Florida Statutes (2003).
Angelus, who is a resident of New Zealand, filed a motion to strike the letters of administration and a petition for Pass's removal approximately fifteen months later. Angelus, the decedent's only child and one of the residuary legatees, claimed Pass was legally prohibited from serving as personal representative under Section 733.304, Florida Statutes (2003). Section 733.304 provides that a nonresident cannot qualify as personal representative unless the nonresident is a "spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity." § 733.304(3), Fla. Stat. (2003).
Angelus sought to strike the letters of administration on the basis that Pass was a nonresident, did not have a blood relationship to the decedent, and had in fact made misrepresentations to the contrary. Angelus also claimed Pass had several conflicts of interest with the decedent's estate, and sought repayment of the personal representative's fees paid to Pass, as well as repayment of the administrative expenses paid to Pass' counsel.
At the hearing on the motions, Pass admitted he was the blood nephew of the decedent's former husband, and not of the decedent. However, he claimed he did not know of the requirements of Section 733.304, and that the removal petition should be dismissed because it had not been filed within the three-month time period required by Section 733.212, Florida Statutes (2003). Section 733.212 states that: "Any interested person on whom a copy of the notice of administration was served must object to ... the qualifications of the personal representative ... within three months after the date of service... or those objections are forever barred."
The trial court agreed with Pass, and denied Angelus's petition as untimely on the basis no objection had been raised during the statutory three-month time period. The trial court further noted that during the fifteen months Pass had served as personal representative, Pass had at all times acted for the benefit of the estate.
While we agree with the trial court's findings that Pass's services as personal representative did not harm the estate, we disagree with the conclusion that Section 733.212 can be applied to allow a legally unqualified personal representative to escape the requirements of Section 733.304 and Florida Probate Rule 5.310. Florida Probate Rule 5.310 places the burden on the personal representative, as a fiduciary, to provide notice in the event the personal representative is not qualified to serve. See also § 733.3101, Fla. Stat. (2003). Rule 5.310 specifically states:
See Fla. Prob. R. 5.310 (emphasis added).
The trial court erred in denying the motion to strike and petition for removal because Pass was never qualified to serve under Section 733.304. See In re Greenberg's Estate, 390 So.2d 40 (Fla.1980). Pass is expressly prohibited from...
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Hill v. Davis
...court certified that its decision is in direct conflict with the decision of the Third District Court of Appeal in Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The issue before us is whether an objection to the qualifications of......
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Hill v. Davis
...untimely because such a ruling would have been contrary to binding precedent of the Third District Court of Appeal in Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA 2004), which held that the three-month statute of limitations found in section 733.212(3) did not apply to bar a petition to remo......
- Jacobs v. Jacobs, 3D02-2260.