The Uniform Partition of Heirs Property Act: A Solution in Search of a Problem.

Author:Farach, Manuel
Position:Real Property, Probate and Trust Law

A recent article in The Florida Bar Journal extolled the virtues of the Uniform Partition of Heirs Property Act (UPHPA or act) and argued for its adoption. (1) Proponents of the UPHPA assert that the act is more protective of heirs' rights than existing law. However, a close examination of the Florida Probate Code reveals that current Florida law is more protective of heirs' rights. F.S. [section]733.814 permits the personal representative of an estate, or any of the beneficiaries, to petition the court for the partition of property for purposes of distribution. Moreover, the suggested fix to the problems outlined in the prior article create more problems than anticipated and may not help resolve issues. This article neither agrees with nor disputes the factual assertions made in the previous article, but examines the present process and the proposed fix--the UPHPA--and concludes that adoption is not in the best interests of the citizens of Florida. Specifically, we look at adoption of the act, and how it would work under Florida law.

Partition Under the Florida Probate Code

Section 4 of the act permits service of process by posting. Fla. Prob. R. 5.025 identifies a partition proceeding as an "adversary proceeding," which requires the service of formal notice that informs heirs they have 20 days to respond to the petition. Rule 5.040(a) also requires service of formal notice by a method that requires a signature by the recipient, by service of process as required under the Rules of Civil Procedure, or as otherwise provided by Florida law for service of process. In addition, it is less protective of beneficiary rights than current law, which requires actual service evidence by a signature.

The Uniform Law Commission, in the prefatory notes preceding the text of the act, cites a de facto preference for judicial sale instead of in-kind partition. (2) In the probate context, F.S. [section]733.814 requires a finding that "the property cannot be partitioned without prejudice to the owners and cannot be allotted equitably and conveniently." F.S. [section]733.814 also permits a court to give a personal representative of an estate authority to sell property privately without resorting to a public auction. Thus, present probate law protects the interest of parties.

The Uniform Law Commission cites a concern for land owners who cannot afford, or do not understand the need for, sophisticated planning that "wealthy and legally savvy clients" are able to access. (3) While this may be true, the Florida Probate Code, particularly F.S. [section]733.814, does not distinguish between heirs who take under a will and heirs who inherit through intestacy. All of the procedural safeguards relating to the qualifications of a personal representative and the personal representative's duties to estate beneficiaries applies equally for testate and intestate estates. The existing statutory framework for heirs does offer protection for heirs.

Moreover, Fla. Const. art. X, [section]4(b), provides protection for family members who inherit homestead property, i.e., the primary residence of the deceased owner or the deceased owner's family. The home is exempt from claims of the deceased owner's creditors to the same extent the home would be protected during the owner's lifetime. Under current Florida law, the inheritance of homestead property by family members occurs by operation of law at the moment of the deceased owner's death in both testate and intestate estates. Thus, a personal representative cannot sell a protected homestead because it is not an asset of the estate. (4) While this results in tenancy-in-common ownership by the heirs in many cases, it ensures that the heirs inherit the property and that the property is not lost to creditors or sold to pay estate expenses. The heirs would have to resort to partition under F.S. Ch. 64, if they could not work out the benefits and responsibilities of ownership between them.

Non-Legislative Alternatives

The preventive and educational measures cited in the recent article are the best options for heirs inheriting Florida property. Florida has a strong tradition of protecting the family home as set forth in Fla. Const. art. X, [section]4, which dates back to 1868. Members of The Florida Bar have stepped up to assist homeowners through pro bono and low-fee...

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