You cannot always get what you want but when it comes to probate sometimes you can have a second chance at what you want through an appeal. An appeal is a request for a higher courtto review the findings of a lower court and much like probate generally, appeals can be very tricky. If you are considering appealing a probate decision your regular probate lawyer may not be experienced and you may need to retain fresh counsel for the appeal to get the results that you want
What Probate Court Orders Can Be Appealed?
- One of the first rules to learn is that appeals may not be taken from interlocutory orders entered in the probate process. This is legalese for an intermediate order, something non-final in the disposition of the estate. In order to appeal a decision from this stage of proceedings a party has to wait until a case is final. For example, an order setting aside and declaring letters of administration void ab initio is not an appealable order, nor is an order dismissing a petition in probate for construction of a will.
- Rule of Appellate Procedure 9.110(a)(2) provides that the review of an order by theappellate court is authorized when there is an order entered in probate “that finally determines a right or obligation of an interested person as defined in the Florida Probate Code.”
- However, its no easy task determining whether an interested person’s rights have been“finally determined” in a probate proceeding. While everyone recognizes that a probate order that merely fixes some administrative or procedural step in the administration of an estate without finally determining the rights of the parties is interlocutory and not directly appealable, there are other situations that don’t present such a clear and distinct conclusion as to whether the appeal is premature or not.
- An example of this confusion is evident in the split among Florida’s appellate courts as towhether the appointment of an administrator ad litem is a final appealable order. While the Fourth DCA holds these non appealable several including the Third and Second DCAs hold they are appealable and final.
Considering an appeal?
- Remember this is a specialized practice of law in a different court than a regular probate. Specialization may be necessary if you are going to spend money on an appeal make sure it is worth it.
- Don’t forget about that non-appealable order because after the estate is closed it may be appealable, consult an experienced Palm Beach Probate Lawyer who does appeals. A Palm Beach Appellate Probate Attorney. Remember that decision the Judge made that you did not like? Write it down, bring it up years later !