Distribution of Assets: Real Estate in Probate and Preventing Conflicts of Interests
The presence of real estate in probate law is a very common occurrence. Land is a great source of wealth, and the inheritance of real estate has always been a considered meaningful gift. To inherit land is to receive a wonderful gift, but there can be times when the inheritance can cause dilemmas that are unforeseen. Real estate can mean acres of land in the countryside or a condominium in a downtown area. Real estate usually includes any buildings that are affixed to the actual land, such as a house or barn.
Real Estate in Probate
Whether you are involved in probate administration because someone you know has passed or whether you have been chosen as a personal representative to an estate, there is a likelihood that some form of real estate will find a way into the process. The types of items that will be distributed during probate administration include both personal property and real estate (real property). The individual, or corporation, that ultimately acts as the personal representative during probate administration is responsible for the distribution of assets from a decedent’s estate. Rather than using the term deceased person, the Florida Probate Code uses the term decedent.
Florida Probate Code
As you can see by the Florida Statutes, specifically the language in Chapter 733, “The Probate Code: Administration of Estates”, careful discussions by the Florida Legislature ultimately resulted in a thorough examination of the responsibilities of personal representatives. This in turn means that Florida possesses a detailed Probate Code. Of course, there is a multitude of Florida case law to review as well. As a result, hiring an attorney versed in the Probate Code and relevant case law is paramount for excellent legal representation.
Personal Representatives and Conflicts of Interest with Real Estate in Probate
There are a number of issues that are addressed within the Florida Statutes that relate to the distribution of property, specifically by the personal representative of an estate. When distributing the remaining assets of a deceased person, or decedent, one of the issues addressed in the Florida Statutes deals with conflicts of interest and the personal representative of an estate. Florida Statute 733.610 “Sale, encumbrance, or transaction involving conflict of interest” declares,
“Any sale or encumbrance to the personal representative or the personal representative’s spouse, agent, or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction that is affected by a conflict of interest on the part of the personal representative, is voidable by any interested person except one who has consented after fair disclosure, unless:
(1) The will or a contract entered into by the decedent expressly authorized the transaction; or
(2) The transaction is approved by the court after notice to interested persons.”
This includes any sale of personal property or real estate that may be a part of the decedent’s estate. The statute not only prevents the personal representative from benefitting themselves in a transaction involving the estate, but the husband or wife of the personal representative, an agent of the personal representative, an attorney of the personal representative, and more. The extensive language of this statute prevents the use of a “straw man” for the personal representative. On occasion, individuals have used a person they know as a “straw man” to get what they need or really want. For example, without this statute, a personal representative may sell real estate in probate to their friend. In turn, their friend may simply sell the real estate back to them. This statute prevents personal representatives of selling assets to individuals in which the personal representatives themselves would benefit from the sale. By addressing the attorney, spouse, and any transaction that may lead to a “conflict of interest on the part of the personal representative”, the Florida Legislature disabled personal representatives from seeking to gain from the appointment of such a position. This prevents personal representatives from conducting their duties for self-interest or self-motivation, and to encourage the personal representatives to work honorably and in the best interest of the decedent and the decedent’s heirs.
The idea of a conflict of interest is something that is nothing new to the legal field, or to any professional field for that matter. Described within each professional rule of conduct code for any particular profession, such as medical or legal, there is a substantial portion devoted to conflicts of interest.
Each profession is regulated somehow, usually with a licensing board. In addition, individuals who are business owners or work in business are likely familiar with the idea of conflict of interest. The fact that conflicts of interest involving personal representatives is addressed in the Florida Probate Code is not surprising. This is because real estate in probate and other personal property items are distributed regularly during probate administration, and are a large part of the responsibilities of personal representatives.
Real Estate in Probate at Bret Jones, P.A.
Our attorneys and staff at Bret Jones, P.A. are highly familiar with both real estate in probate, and other legal matters that are attributed to probate. In addition, we also practice in the areas of real estate and business law. Under the legal profession, the requirements of professional conduct are held to a high standard, and they should be for personal representatives as well. As a matter of fact, as you have read earlier, a personal representative may not only be an individual, but a trust, corporation, and more. At our law offices, we can represent you in your position as a personal representative to ensure that you diligently and correctly act as instructed by the courts and according to the specifications of the estate you represent. We handle a wide-range of matters that deal with real estate. Real estate matters are a large part of what we do at our firm. Providing the quality legal representation that you need is what we do at Bret Jones, P.A. Contact our offices for your real estate in probate questions.