F.S. 733.702 tells us that “no claim for personal property in the possession of the personal representative” is binding on the estate unless filed within three months after first publication of notice to creditors.
Taken to the extreme, this statute could be interpreted to mean that a personal representative (PR) can refuse to return a neighbor’s car parked in the decedent’s driveway unless a probate creditor claim — subject to Florida’s ultra-short limitations period for such claims — is filed. Same for that priceless collector’s item watch you loaned your buddy before he died. If his PR decides she wants to keep the watch and you didn’t get around to filing a timely probate creditor claim to get it back, are you out of luck?
Not necessarily. It depends on whether you’re seeking to recover property the decedent never claimed to own, versus property the decedent claimed was his before he died. This distinction is outcome-determinative. Why? Because F.S. 733.702 only applies to the latter, not the former — as the parties in the Brillium case learned.
Link to Case Study Case Study
Brillium, Inc. v. Oles-Dugre, — So.3d —-, 2026 WL 1699566 (Fla. 5th DCA June 12, 2026)
This case involved a decedent who owned a company with a business partner. Litigation broke out between the company/partner and the decedent’s estate. Part of that litigation involved a replevin claim for the return of company property the decedent was in possession of when he died (computer, hard drives, electronic data and files, camera and photography supplies, office chair, and notebooks). Here’s how the 5th DCA described this claim:
Appellants asserted a claim for replevin under section 78.01, Florida Statutes, against Appellee in her capacity as Personal Representative. The replevin claim was based on allegations that, although Decedent, as a Brillium, Inc., owner, rightfully possessed certain property (computer, hard drives, electronic data and files, camera and photography supplies, office chair, and notebooks) owned by Brillium, Inc., during his lifetime, Appellee wrongfully refused to return the property to Brillium, Inc., following Decedent’s death and, instead, improperly exercised dominion over the same.
The company’s claim for the return of its property was denied as untimely by the probate judge, who ruled it was a form of probate creditor claim covered by F.S. 733.702.
Link to What’s a “replevin” claim and why should probate attorneys care? What’s a “replevin” claim and why should probate attorneys care?
Cognitive biases — such as the framing effect — are powerful: make sure they’re working for you, not against you.
For example, when confronted with this kind of case counsel for the claimant might be tempted to frame the claim as some kind of title dispute to determine who owns the contested property. Here’s the problem with that framing: title disputes have been held to be a form of probate creditor claim covered by F.S. 733.702. Against this backdrop, we should assume title disputes will by default be considered creditor claims, even in those cases where they’re not.
If you want to avoid the default creditor claim label, better to frame your case as an action for replevin under F.S. Chapter 78. Why? Because this theory fits perfectly into the paradigm of what’s not a probate creditor claim — which means your claim for the return of personal property a PR is for the first time saying doesn’t belong to you can’t get booted out of court as an untimely probate creditor claim. So saith the 5th DCA:
“The essence of an action of replevin is the unlawful detention of personal property from plaintiff at the commencement of the action, regardless of whether defendant acquired possession rightfully or wrongfully.” Brown v. Reynolds, 872 So. 2d 290, 294 (Fla. 2d DCA 2004) (citation modified). …
Where, as here, the decedent was merely in possession of the property without asserting ownership, and the assertion of ownership is made by the personal representative or heirs for the first time after death, then filing a claim under section 733.702 is not required. Scott v. Reyes, 913 So. 2d 13 (Fla. 2d DCA 2005).
Appellants allege Decedent was in permissive possession of Brillium, Inc.’s personal property and assert that, because Decedent had permission to possess this personal property, Brillium, Inc.’s claim for return of the property arose after Decedent’s death. Appellants are correct. Because Decedent was merely in possession of the property at the time of his death without asserting ownership, and the assertion of ownership was made by the personal representative for the first time after Decedent’s death, filing a claim under section 733.702 was not required.