One of our first admonitions to clients seeking to become appointed personal representative of a decedent’s estate and is to secure all automobiles and not let anyone drive them.  Under Florida’s Dangerous Instrumentality Doctrine, the estate can be held vicariously liable if someone drives the car and injures others in an accident.  Once a person has been appointed personal representative and the probate case opened, the personal representative has personal responsibility for those automobiles.

But what if someone takes a car and is involved in an accident before a personal representative has been appointed?  Under the right circumstances, the estate might not be held responsible.  In the case of Depriest v. Greeson, decided by our own First District Court of Appeal in February, 2017, an adult daughter took her deceased father’s car and was involved in an accident that caused injuries.  She lived with her mother and father during his lifetime and occasionally drove his car with his permission.  However, there was no evidence that the father ever gave his daughter permission to continue to use the car after his death.  His Will made no specific bequest of the car.   Because the accident occurred before the stepson was appointed personal representative, the court held that even though the car was an asset of the estate, the estate could not be held responsible for the daughter’s actions.  However, this case still is not final, suggesting that a motion for rehearing may be pending.  This is a very close and fact specific case upon which I would not recommend that anyone rely.

Factually, the stepson was in Florida for his stepfather’s funeral and took the title of the vehicle to a lawyer to open a probate case.  However, he did not take possession of the car or its keys.  Apparently, that lawyer did not impress upon him the need to park the vehicle and take the keys.  While it makes sense not to punish someone for the act of another that could not be anticipated, my concern about why this case might not stand up is that the stepson did know about the car and took affirmative action by taking the title to the lawyer.  If that lawyer had been me, the stepson would have been sent straight back to the house to confiscate the keys, park and lock the car until the estate could be settled.  We believe that remains the soundest advice under the circumstances.

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