- 10 -
requires the conclusion that no consensual relationship was
formed. Petitioner's withdrawals constitute embezzlement income
and are not proceeds of loans.5
Petitioner argues that he needed no consents from the
beneficiaries to his withdrawals of estate proceeds; because he
had "legal title" to the estate assets as personal representative
he was only borrowing from himself. Petitioner's argument is an
incorrect statement of Florida law:
The personal representative may hold legal title, but
does not hold beneficial title to the assets and has
no right to dispose of estate assets for his own use.
The estate assets are not the personal representative's
property, but are held by the personal representative
for the benefit of the estate and ultimately for
distribution to the beneficiaries. [State v. Lahurd,
632 So. 2d 1101, 1103 (Fla. Dist. Ct. App. 1994),
review denied 639 So. 2d 978 (Fla. 1994)].
In State v. Lahurd, supra, the defendant argued that he could not
be criminally charged with grand theft for converting estate
proceeds, inasmuch as he had legal title to such proceeds, and no
one can steal from himself. The court clarified the limited
nature of the legal title held by a personal representative,
holding "that a personal representative does take the 'property
of another' when he or she converts estate assets to his or her
5 The parties unnecessarily argue over the timing of the
writing up of the promissory notes. Whether they were prepared
contemporaneously with the withdrawals, as petitioner maintains,
or simultaneously in preparation for trial, as respondent
maintains, is irrelevant. In either event, no loans between
petitioner and the estate resulted, inasmuch as the essential
consensual relationship was lacking.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011