Why Unclaimed Property Searches Need To Be On Your Probate Checklist

In Bartsch v. Costello, 2015 WL 3759702, James Bartsch died in 2002 and was survived by a spouse and two children, one of which was from a prior marriage (“Daughter”). Bartsch’s death certificate incorrectly listed him as divorced and his wife, Agnes, did not have the death certificate corrected. Approximately eight years later, Daughter was contacted by Thomas Costello’s company (an unclaimed property search company) stating Bartsch had $33,766.41 in unclaimed property held by the state. Costello and Daughter entered into an agreement and, with his assistance, Daughter began a summary administration, listing the unclaimed property and that she was the sole heir. Summary Administration was granted and Daughter recovered all of the money.

Six months later, Agnes moved to vacate the Summary Administration order on the grounds of fraud and the court ordered all funds to be deposited into the court registry, including Costello’s commission. The monies were then redistributed 50% to Agnes and 25% to each child.

Agnes then filed a civil action against Costello for negligence regarding their research and that the Florida Disposition of Unclaimed Property Act (“Act”) imposes “a duty of care on those who assist others to receive unclaimed property…and strict liability for unclaimed property improperly appropriated.” The court held that Costello was not negligent because he based his research on Bartsch’s death certificate, which Agnes chose to not correct, and on Bartsch’s family members who confirmed the divorce. Further, the court held that the Act did not create strict liability, or a private cause of action, because its purpose is to provide recovery for the state, not a private person. The appellate court upheld the lower court’s ruling and also noted that due to Agnes’s failure to probate Bartsch’s estate and correct the death certificate, she failed to protect her own interests.

Advice:

(1) Always make sure the information on the death certificate is accurate and (2) add unclaimed property searches (fltreasurehunt.org) and public records searches to the beginning of your probate checklists!