Mosley's Estate, In re, 80-1016

• Decision Date: 26 August 1981
• Docket Number: No. 80-1016,80-1016
• Citation: 402 So.2d 594
• Parties: In re ESTATE OF Isaac MOSLEY, Deceased. Annie MOSLEY, Appellant, v. Leonard THOMAS, Appellee.
• Court: Florida District Court of Appeals

Page 594

402 So.2d 594

In re ESTATE OF Isaac MOSLEY, Deceased.

Annie MOSLEY, Appellant, v. Leonard THOMAS, Appellee.

No. 80-1016.

District Court of Appeal of Florida, Fifth District.

Aug. 26, 1981.

Kenneth Sills, Central Florida Legal Services, Inc., Daytona Beach, for appellant.

Michael S. May of Martin, Stanley, May & Thomas, P. A., Deland, for appellee.

DAUKSCH, Chief Judge.

This is an appeal from an order denying summary administration of an estate. It is alleged in the petition that Isaac Mosley died in 1924 leaving a wife and various children and owning two pieces of real estate. Because there is no showing in the record how the properties were held, that is whether solely or as a tenancy by the entireties; and because at least one of the properties was homestead and not to be included in this type of proceeding, we can make no meaningful resolution of the matters raised on appeal. We cannot at this time state any opinion as to the correctness of the order on appeal as far as it pertains to the multiple estate proceedings because the record was not made below to sufficiently establish the status of the title to the property at the time of death of Isaac Mosley and at present.

Therefore we affirm that portion of the order appealed which denies summary administration, decline ruling on the remainder of that order without prejudice to the appellant to properly petition the court as the law requires.

AFFIRMED.

COBB, J., concurs.

SHARP, J., concurs specially with opinion.

SHARP, Judge, concurring specially.

I concur with the majority opinion because appellant did not provide formal notice pursuant to section 735.209(2), Florida Statutes (1979) and Florida Rule of Probate and Guardianship Procedure 5.040(a). The better approach would have been to petition the court for a determination of beneficiaries in an adversary proceeding pursuant to section 733.105(3), Florida Statutes (1979), and Florida Rule of Probate and Guardianship Procedure 5.025(a)(1) and (b)(1). In a proceeding to determine beneficiaries the petitioner or personal representative must make a diligent search and inquiry to ascertain the identity and location of all the heirs and the nature of their respective interests in the estate. § 733.105(1), Fla.Stat. (1979). This type of action also requires formal notice to all interested parties and is governed by the Florida Rules of Civil Procedure as well as the Florida Evidence Code. Fla.R.P.&G.P. 5.040(a), 5.080, and 5.170.

One of the basic problems in this case is the determination of homestead status of the real property. This issue may be decided in either type of procedure. Although homestead property is not property of the estate generally, Florida Rule of Probate and Guardianship Procedure 5.340(a) provides that homestead real property shall be included in the inventory of the property of the estate. Section 735.203(2)(b), Florida Statutes (1979), also requires that the petition for summary administration...