Court Reaffirms Personal Representative’s Discretion to Distribute Estate Assets In Kind.

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Hinson v. Hinson, ___ So. 3d ___ (Fla. 3d DCA Oct. 2025), October 15, 2025, 3D24-2121; Case No. 21-5145-CP-02. Opinion has not been released for publication in permanent law reports. Until released, it is subject to revision or withdrawal.  In Jeanine Sagebien Hinson, etc., v. In Re: John A. Hinson, Florida’s Third District Court of Appeal reversed a probate court order that had required a personal representative to distribute estate assets in cash rather than in kind, holding that the trial court’s order violated both the express terms of the decedent’s will and the Florida Probate Code’s policy favoring in-kind distribution of estate assets.  The opinion serves as an important reminder that a Florida personal representative’s discretionary powers under a will are to be respected, and that equitable concerns for certain beneficiaries cannot override the governing testamentary and statutory framework.

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John A. Hinson passed away in September 2021, leaving a will that named his wife, Jeanine Sagebien Hinson, as personal representative. The will devised to Mrs. Hinson a 95% residuary share, to the decedent’s secretary, Monica A. Pelella, a 3% residuary share, and to a friend, James M. Baker, a 2% residuary share.  The will granted the personal representative “the continuing, absolute, discretionary power to deal with any property, real or personal, held in [the] estate … as freely as [the decedent] might in the handling of [his] own affairs,” and expressly authorized her “to divide and distribute [the] estate … in money or in kind or partly in money and partly in kind.”  The estate’s remaining significant assets consisted of limited partnership interests in a closely held Georgia limited liability partnership and shares in six closely held Florida corporations primarily engaged in real-estate development and management. Mrs. Hinson petitioned to distribute these business interests in kind, pro rata among the residuary beneficiaries, to avoid costly appraisals and potential valuation disputes.

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The minority beneficiaries, Ms. Pelella and Mr. Baker, objected.  They requested a cash distribution, arguing that an in-kind transfer would be unfair, burdensome, and likely to result in further litigation. The probate court sided with the objectors, citing concerns for Ms. Pelella’s age, lack of business sophistication, and need for liquidity. The court stated its “polestar guide” was to “get [Ms. Pelella] her money the fastest way,” and ordered that the beneficiaries “receive cash in lieu” of the in-kind distribution.

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Mrs. Hinson appealed.  The appellate court framed the issue succinctly:  “Whether the probate court could override the personal representative’s discretion under the will to distribute estate assets in kind, and instead require that the distributions be made in cash.”  In its analysis, the Court noted that the will granted broad discretion.  The court began with the text of the will itself, emphasizing that it unambiguously vested the personal representative with broad, discretionary authority over the administration and distribution of estate assets. This included the explicit right “to make such division or distribution in money or in kind or partly in money and partly in kind.”  Under longstanding Florida law, such a grant of discretion must be respected absent an abuse of that discretion or evidence of bad faith. The appellate panel cited Wallace v. Julier, 147 Fla. 420, 3 So. 2d 711 (1941), for the principle that a court may not interfere with a personal representative’s discretionary power “so long as it is honestly and reasonably exercised.”

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Furthermore, Florida law favors in-kind distributions.  The decision then turned to Fla. Stat., §733.810, Florida Statutes, which governs the mode of distribution of estate assets. The statute’s default rule is clear:  “Assets shall be distributed in kind unless:  (a) A general power of sale is conferred; (b) A contrary intention is indicated by the will; or (c) Disposition is made otherwise under this code.”  The court noted that Florida law “favors distribution in kind,” citing Ray v. Rotella, 425 So. 2d 94 (Fla. 5th DCA 1982). None of the limited exceptions applied here. While the will did contain a general power of sale, that power merely made in-kind distribution permissive rather than mandatory—it did not require liquidation, nor did it transfer discretion from the personal representative to the court or to the beneficiaries.

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Although the appellate court expressed sympathy for Ms. Pelella’s situation—an older beneficiary unfamiliar with complex business assets—it held that the probate court’s equitable considerations could not override the will’s express terms or the statutory policy.  As the opinion observed, the probate court’s decision “benefits the minority residuary beneficiaries only because, given their wish to sell their interests, the order shifts from them to the estate the expense of appraising, resolving valuation disputes, and selling their minority interests.” That cost-shifting was precisely what the personal representative sought to avoid by distributing in kind. By compelling a cash payout, the court effectively elevated the personal preferences of the minority beneficiaries over both the majority beneficiary’s interest and the estate’s efficiency.  The appellate panel concluded there was no evidence of prejudice to the estate or inequity that would justify the trial court’s intervention.

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Accordingly, the Third District reversed, holding that: (a) the personal representative acted within her express authority under the will and Florida law; (b) the probate court erred by substituting its judgment for that of the personal representative; and (c) absent a finding of bad faith, abuse of discretion, or clear inequity to the estate, the court must respect the personal representative’s discretion in determining the mode of distribution.

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The opinion reaffirmed the principle that probate courts should not rewrite a will or reallocate administrative discretion based on perceived fairness or convenience to individual beneficiaries.

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The key takeaways from this case should be noted:

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• Express testamentary discretion governs. When a will grants a personal representative the authority to distribute assets “in money or in kind,” courts must defer to that discretion unless it is exercised unreasonably or in bad faith.

• Florida’s statutory policy supports in-kind distribution. Fla. Stat., §733.810(1) establishes a clear preference for in-kind transfers of estate assets, particularly for residuary devises, unless a contrary intent appears.

• Equitable hardship alone does not justify overriding the will. Courts may empathize with a beneficiary’s circumstances, but judicial sympathy cannot substitute for statutory or testamentary direction.

• Minority beneficiaries cannot demand cash equivalents. Absent a pecuniary devise or specific buy-out provision, residuary beneficiaries are not entitled to compel liquidation of illiquid assets simply for convenience.

• Practical administration remains paramount. The case reinforces the fiduciary balance under Fla. Stat., §733.602(1): a personal representative must settle and distribute the estate “expeditiously and efficiently” in accordance with the will and the Probate Code.

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For Florida estate planners, Hinson v. Hinson underscores the value of clear grants of administrative discretion within testamentary instruments. When clients hold closely held business interests, language explicitly authorizing in-kind distributions can prevent costly disputes later.

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For probate litigators, the case is a reminder that courts will not reweigh administrative decisions absent a concrete showing of prejudice, inequity, or statutory violation. Personal representatives who act transparently and within the scope of the will’s authority can rely on appellate protection against judicial second-guessing.

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Finally, for beneficiaries, Hinson demonstrates that residuary shares carry business risk. Unless the will provides otherwise, a residuary devisee must accept the form of property the decedent owned—whether liquid or illiquid, simple or complex.

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In conclusion, the Third District’s decision in Hinson v. Hinson reaffirms the cornerstone of Florida probate law: the personal representative is the executor of the decedent’s intent, not the court’s instrument of equity. So long as the personal representative acts in good faith and within the scope of authority granted by the will, her judgment controls—even when beneficiaries would prefer cash over closely held business interests.