The Florida appeals court ruled that when lawful heirs are known, the state cannot claim any part of an estate for escheat simply because other potential heirs might exist; the burden is on the state to prove no other heirs exist before taking property.
Professional genealogists and certified document translation services play an important role in probate cases dealing with finding the rightful heirs and beneficiaries before unclaimed assets, abandoned property and dormant accounts escheat to the state. The legal principle of escheat—where a decedent’s property reverts to the state in the absence of lawful heirs—has ancient roots in feudal law. In modern probate practice, it serves as a default mechanism to ensure that property does not remain in legal limbo. However, the process raises critical questions about the burden of proof: Who must demonstrate the existence or nonexistence of heirs before the state can claim an estate?
A 2006 Florida appellate decision, In re Estate of Faskowitz, 941 So.2d 390 (Fla. 2d DCA 2006) provided a decisive answer, reaffirming that the state, not private claimants, bears the ultimate burden of proving there are no lawful heirs before any portion of an estate may escheat. This case serves as a crucial precedent, clarifying the rights of known heirs and limiting the circumstances under which the state may assume ownership of intestate property.
A Will Without a Beneficiary
Irving Faskowitz died with a will that devised all his property to his wife. However, his wife predeceased him, and the will named no alternate beneficiary. This created a “lapsed devise,” meaning the gift failed, and the estate became subject to intestate succession—distribution according to Florida’s statutory scheme for those who die without a valid will.
Moshe Faskowitz (the appellant) and his sisters, paternal relatives of Irving, petitioned to be declared the intestate heirs. The probate court found they were indeed the paternal kindred of the decedent, who left no lineal descendants. However, the court noted that “No evidence has been presented by the alleged paternal heirs that no maternal kindred of the Deceased exist.” Consequently, the court ordered that half the estate be distributed to the paternal heirs and the other half be deposited with the clerk of court for unknown maternal heirs under Florida Statutes § 733.816, which governs disposition of unclaimed property by personal representatives. If no maternal heirs came forward, that half would eventually escheat to the State of Florida.
Moshe Faskowitz appealed, contesting only the portion withholding half the estate. He argued that when lawful heirs are identified, no property should be subject to escheat. He further pointed to a genealogist’s report, commissioned by the personal representative, which found no surviving maternal heirs, though the search was not deemed complete by the trial court.
Statutory Interpretation and Burden of Proof
The core legal conflict centered on the interaction of three Florida statutes and the associated burden of proof.
1. Intestate Descent (§ 732.103): This statute governs who inherits when there is no will. Subsection (4)(c) states that if a decedent has no surviving spouse or descendants, the estate passes to kindred. Crucially, it provides: “if there is no paternal kindred or if there is no maternal kindred, the estate shall go to such of the kindred as shall survive.” In other words, if maternal relatives do not exist, paternal relatives inherit the entire estate, and vice-versa.
2. General Escheat (§ 732.107): This statute provides the fundamental rule: property escheats to the state only when a person dies “without being survived by any person entitled to it.”
3. Unclaimed Property in Probate (§ 733.816): This procedural statute allows a personal representative to deposit property with the clerk when it cannot be distributed due to “inability to find the lawful owner” or because “no lawful owner is known.”
The trial court’s ruling effectively placed the burden on the paternal heirs to prove a negative—the nonexistence of any maternal heirs—to avoid escheat of half the estate. The District Court of Appeal reversed this logic.
The Appellate Court’s Holding: The State Bears the Burden
The appellate court’s unanimous per curiam opinion delivered a clear, two-part holding:
1. The paternal relatives were entitled to the entire estate. The appellate court held that the trial court’s application of § 733.816 (unclaimed property) was inconsistent with § 732.103 (intestate descent). Once the paternal kindred established their status as lawful heirs under § 732.103(4)(c), they became the “lawful owners” of the entire estate, unless and until other lawful heirs (maternal kindred) were shown to exist. The appellate court found nothing in the statutory scheme that allows the state to claim a portion of an estate simply because there is uncertainty about other potential heirs when known, lawful heirs have already been identified.
2. The state has the burden of showing there are no lawful heirs for escheat to occur. This was the cornerstone of the decision. The court rejected the appellees’ (the State and the Personal Representative) argument that the paternal heirs had the burden to disprove the existence of maternal heirs. Instead, it placed the burden squarely on the state, citing the Florida Supreme Court’s earlier decision in In re Estate of Tim.
Reaffirming Estate of Tim and the “Progress of Proof”
The appellees had relied on Estate of Tim (1965) and Estate of Russell (1980) to argue that the burden lay with the private claimants. The Faskowitz court meticulously distinguished these precedents and clarified their meaning.
Estate of Tim involved a situation where all claimants failed to prove they were lawful heirs. In that context, the Florida Supreme Court discussed the “proof required before the estate of a decedent may be escheated.” It quoted approvingly from a Washington case:
“The state’s burden is met when… it has been shown that after diligent search and inquiry the state has been unable to find that [the decedent] left ascertainable heirs… The burden is then upon a particular claimant to prove… that he is in fact the next of kin. This is not shifting the burden of proof, but is a mere progress of proof…”
The Faskowitz court seized on this reasoning. It explained that this “progress of proof” establishes a sequence:
1. Prima Facie Case for Escheat: The state must first make a diligent search and show it cannot find any ascertainable heirs. This creates a prima facie case for escheat.
2. Claimant’s Burden: Only then does the burden shift to a specific claimant to prove they are, in fact, a lawful heir.
Critically, the Faskowitz court found that the first step had never occurred in this case. The state did not—and could not—make a prima facie showing that there were no lawful heirs because the paternal heirs had already undisputedly established their status. Estate of Tim, therefore, supported the appellant’s position: the paternal heirs had no burden to prove the nonexistence of maternal heirs. The initial burden to justify escheat through a diligent search remained with the state.
Estate of Russell was found irrelevant, as it dealt with the distinct issue of whether a missing beneficiary under a will triggers intestate succession (it does not).
Implications and Significance of the Decision
The Faskowitz decision has important ramifications for probate practice and the rights of heirs:
• Protection of Known Heirs’ Rights: The ruling prevents the state from partitioning an estate and claiming a share based solely on speculative, unproven potential heirs. When lawful heirs come forward and prove their status, they are entitled to the whole estate. The state cannot force them to subsidize an indefinite search for others.
• Clarification of the “Diligent Search” Requirement: The opinion implicitly underscores that the “diligent search and inquiry” required before escheat is a burden on the state or the personal representative acting on behalf of the estate, not on the located heirs. The genealogist’s incomplete report in this case highlighted the need for such a search to be thorough and concluded before escheat can be considered.
• Efficient Administration of Estates: The decision promotes the finality and efficient closure of estates. It prevents situations where estates remain open for years, with assets held in limbo, based on mere possibilities rather than evidence.
• Correct Allocation of Incentives: By placing the burden on the state, the law incentivizes the personal representative (and the state, if involved) to conduct a prompt and thorough search for heirs at the outset of administration. It does not incentivize a passive approach where known heirs are forced to fund or conduct investigations to claim what is rightfully theirs.
A Straightforward Rule of Law
In re Estate of Faskowitz is a model of statutory interpretation that reinforces a straightforward principle: escheat is a last resort. The Florida Probate Code prioritizes passing property to blood relatives, no matter how remote. The state’s claim is subordinate. Before the state can assert that claim, it must actively demonstrate, through diligent effort, that no rightful owner exists. It cannot passively withhold property from known heirs based on conjecture.
The appellate court’s decision rectified an error that had unjustly deprived lawful heirs of their inheritance. In doing so, it reaffirmed a fundamental balance in probate law: while the state has an interest in ensuring property has an owner, its interest does not trump the proven rights of individuals. The burden of proof in escheat proceedings lies with the sovereign, a rule that protects citizens’ property rights against idle claims of the crown—a principle as vital in modern Florida as it was in old English law.
Get in touch with professional genealogists and certified legal translators at All Language Alliance, Inc. to request genealogical research services to locate missing heirs and beneficiaries before the unclaimed property escheats to the state. Inquire about certified translation services for handwritten and typed documents created in German; Italian; Turkish; French; Dutch; Danish; Hebrew; Swedish; Chinese; Korean; Japanese; Thai; Polish; Greek; Czech; Romanian; Portuguese; Lithuanian, and other foreign languages.
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