In short: In Warren v. Thomson (2014), an agent under a power of attorney sold an elderly woman’s home and deposited the proceeds into an account naming her estranged step-grandson as pay-on-death beneficiary. After she died, the probate court froze the account without a bond. The Third District affirmed without opinion, so the freeze stood.
The Facts
The Third District affirmed without an opinion, so the facts below come from the record and arguments as described in the oral argument, not from findings by the appellate court.
According to the argument, an elderly woman named her step-grandson as the pay-on-death (POD) beneficiary of a credit union account. After a falling-out, she rewrote her will to leave everything to her nieces, but the POD designation on the account stayed in place. Later, her agent under a power of attorney sold her home and deposited the sale proceeds into that same account. The agent later said he did not know the account was POD.
After she died, the personal representative of her estate, John M. Thomson, obtained a probate court order freezing the account without requiring a bond. The beneficiary, Calvin Warren, moved to dissolve the freeze; after an evidentiary hearing, the court denied the motion, and he appealed. He argued that under section 655.82 POD funds pass outside the estate and are not estate assets, and that Florida Rule of Civil Procedure 1.610(b) requires a bond for an injunction. The personal representative argued the deposit was a mistake and that he had a duty to marshal and preserve assets that might belong to the estate.
The Decision
On June 4, 2014, the Third District affirmed per curiam without opinion. A per curiam affirmance without opinion (a PCA) is a one-word decision: the appellate court found no reversible error but gave no reasons, so it does not adopt any party’s argument and cannot be cited as precedent.
What the affirmance left standing: the probate court’s order freezing the account, entered without a bond and kept in place after an evidentiary hearing, so the house money stayed put while the estate pursued its claim. The appeal did not decide who ultimately owned the money, and the panel did not say how it dealt with the bond argument.
The Law
Pay-on-death accounts are governed by section 655.82. The beneficiary has no right to the funds while the owner is alive; at the owner’s death the funds go to the surviving beneficiary outside probate. A POD designation controls the money in the account, but it does not answer whether a particular deposit was properly made. That is the estate’s opening when an agent, rather than the owner, put the money there.
Florida’s Power of Attorney Act sets the agent’s duties. Under section 709.2114, an agent is a fiduciary who must act in good faith and in the principal’s best interest and, to the extent actually known and consistent with her best interest, attempt to preserve the principal’s estate plan. Under section 709.2202, an agent may create or change a beneficiary designation or rights of survivorship only if the principal separately initialed or signed that specific power. Moving the proceeds of a home, which would otherwise pass under the will, into a POD account can shift who inherits just as surely. Freeze orders are temporary injunctions; Rule 1.610 generally requires a bond, and Florida Rule of Appellate Procedure 9.130 allows an immediate appeal.
Lessons
- If you sign a new will, review every POD, TOD and beneficiary designation at the same time; a designation you forgot about can override the will for that account.
- Agents under a power of attorney should deposit sale proceeds into an account that matches the principal’s estate plan, and ask the bank how each account is titled before depositing.
- A personal representative who finds estate money in a POD account should move quickly to freeze it before the beneficiary withdraws it.
- A POD beneficiary facing a freeze should be ready for an evidentiary hearing on how the money got there; the POD label alone may not win.
Source: Warren v. Thomson, No. 3D14-0562 — Fla. 3d DCA (June 4, 2014).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
House Proceeds Landed in a Pay-on-Death Account — Freeze Order OK? | Warren v. Thomson, 3D14-0562
Go Deeper
- When a Family Member Is Taking a Parent's Money in Florida: Power of Attorney, Guardianship, and Exploitation
- How to Avoid Probate in Florida: Payable-on-Death, Joint Titling, Lady Bird Deeds, and the POD Trap
- Florida's Vulnerable Adult Law: Exploitation Under Chapters 415 and 825
Frequently Asked Questions
Can an agent under a power of attorney put money into a pay-on-death account in Florida?
An agent can manage the principal’s accounts, but must act in good faith and try to preserve the principal’s known estate plan under section 709.2114. Creating or changing a beneficiary designation requires a separately initialed power under section 709.2202. Depositing large sums into an existing POD account can raise the same concern.
Does a will override a pay-on-death designation in Florida?
No. Under section 655.82, POD funds pass to the named beneficiary outside probate, regardless of what the will says. In Warren v. Thomson, the woman’s new will left everything to her nieces, but the old POD designation remained on the account where her house money ended up.
Can a probate court freeze a pay-on-death account?
Yes, as a temporary injunction while the estate litigates whether the money belongs to it. In Warren v. Thomson, the probate court froze the account without a bond and refused to dissolve the freeze after a hearing, and the Third District affirmed without opinion.
What can heirs do if a power of attorney agent moved money to the wrong person?
The personal representative can seek to freeze the funds, demand an accounting from the agent under section 709.2114, and sue to recover the money or for breach of fiduciary duty. Heirs should raise the issue with the personal representative quickly, before the money is withdrawn.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate litigation and appeals from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
