Florida Probate Litigation 

Personal representatives can be involved in various legal cases, especially those related to estates. The legal process involved with contested probate estates is termed “adversary proceedings”.  In any legal action involving the estate or the rights of its beneficiaries, the personal representative of the estate is considered an interested party under Florida Statute § 731.201(23).  

What types of proceedings are adversary?

The Florida Probate Rules outline the following proceedings as adversarial:

• Removing a personal representative.
• Determining beneficiaries.
• Partitioning property for distribution.
• Obtaining an injunction to protect vulnerable adults from exploitation.
• Any other proceedings determined by the court or declared adversarial by service on interested parties of a separate declaration stating that the proceeding is adversarial.

How do adversary proceedings work?

Some probate proceedings are specifically designated as adversary proceedings by rule or statute. Others may be declared adversary by one of the parties involved. An adversary probate proceeding commences with a petition filed by one party. Service of process can be made on the personal representative or their resident agent. This service is effected by formal notice on all interested parties, excluding the petitioner. This service is sufficient for the court to exercise its in rem jurisdiction over a person’s interest in the estate or the decedent’s protected homestead. (14 § 731.301(2) F.S.A.) Service by formal notice initiates an in rem proceeding. Refer to In re Shaw’s Estate, 340 So. 2d 491 (Fla. 3d DCA 1976) and In re Estate of Posner, 492 So. 2d 1093 (Fla. 3d DCA 1986) for further insights into the in rem principle. The opposing party’s response is known as an answer. The motion practice in adversary probate proceedings mirrors that in civil actions and discovery is the same as in civil actions, but the court has broad authority to limit the place, scope and manner of discovery and to assess costs and attorney fees Counterclaims are permitted, while crossclaims are uncommon and unlikely to arise. Third-party involvement is also possible but not prevalent. Amendments in adversary probate proceedings adhere to the same procedures as in civil actions. To accurately describe the affected interests in a pleading, the interested parties must be named, categorized, referenced to the instrument that created the interest, or presented in a suitable manner. All individuals with an interest in the subject matter of the proceeding must be made parties to the case. A party declares a proceeding to be adversary by filing a declaration to that effect. In legal proceedings involving the interests of an estate, the personal representative of the estate is the appropriate party rather than the estate itself. This distinction is because the estate lacks the legal capacity to be a party. (Reference: Spradley v. Spradley, 213 So. 3d 1042 (Fla. 2d DCA 2017).

What rules apply to adversary proceedings?

The Florida Rules of Civil Procedure govern adversary proceedings.  This means that after serving formal notice, the proceedings are to be conducted as closely as possible to civil lawsuits, including the entry of a default- if a party does not respond to the lawsuit within 20 days. The court may enter orders to expedite the main administration if it deems necessary. If a proceeding is already underway when an order is made declaring it an adversary proceeding, it will be conducted accordingly. 

Ormond Beach Probate Litigation Lawyer

If you’re involved in a Florida Will or Trust Contest, you need a top-notch lawyer like Andrew J. Pascale from Ormond Beach. Give me a call at 877-667-1211 to boost your legal chances. Remember, this blog isn’t legal advice, just some helpful info.