The Short Answer

If the Florida probate estate is still open, the personal representative generally has the legal right (and duty) to take control of estate property and can pursue court action to recover it from an heir who is holding it. In many cases, the probate court can order the property returned and address consequences if someone refuses to comply.

What Florida Law Says

In an open Florida probate, estate property is not “up for grabs” just because someone is an heir. The personal representative is responsible for gathering, protecting, and preserving estate assets so the estate can be properly administered and distributed under the will (or Florida intestacy law). If an heir is keeping estate property, that can interfere with administration and may require court intervention.

The Statute

The primary law governing this issue is Fla. Stat. § 733.607.

This statute establishes that the personal representative has the right to take possession or control of the decedent’s property (with limited exceptions such as protected homestead) and may maintain an action to recover possession of property or determine title to it; importantly, a personal representative’s request that a beneficiary deliver property is treated as conclusive evidence that possession is necessary for administration in an action against that beneficiary for possession.

Related authority also confirms that most estate property is treated as an asset in the hands of the personal representative for administration and distribution. See Fla. Stat. § 733.608.

For more background, see: What Are an Executor’s (Personal Representative’s) Responsibilities During Probate in Florida? and Can I make heirs return items they removed from an estate home before I took possession in Florida?.

Why You Should Speak with an Attorney

While the statute provides the general rule, applying it to your specific situation is rarely simple. Legal outcomes often depend on:

• Strict Deadlines: Probate disputes move on court schedules, and delays can affect administration, creditor issues, and distribution timing—especially if the estate is approaching closing or discharge.
• Burden of Proof: You may need to prove the item is estate property (not a gift, not jointly owned, not exempt, not homestead-related) and document what was taken, when, and by whom.
• Exceptions: Florida law treats certain assets differently (for example, protected homestead and some non-probate transfers). Misclassifying property can lead to expensive litigation and sanctions.

Trying to handle this alone can backfire—especially if the heir claims ownership, alleges permission, or the property has been sold, transferred, or commingled. A probate attorney can evaluate whether the best path is a probate motion, a recovery action authorized by the Probate Code, or a separate civil claim, and can pursue court orders that actually have enforcement teeth.

If your issue also involves missing funds or questionable transactions, you may find this helpful: How Can I Challenge an Executor’s Accounting and Recover Misappropriated Estate Funds in Florida?.

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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.