Florida Probate Appeal
A Florida Probate Appeal may be your only way to get justice if you just lost on an important issue. In some instances, you MUST appeal a probate order within 30 days. Read on to learn more about this. (For a free video on a complex estate appeal, click here.)
How long do I have to appeal?
Most people know that you generally have 30 days to file a notice of appeal.
But, in the context of estates and probates, it can be confusing.
Because over the last decade, there was an important Florida probate appeal rule change. (Check out the Florida Rules of Appellate Procedure).
This new rule (not so “new” anymore) is rule 9.170.
Why is that important ?
Because, generally, you can’t appeal matters until the end of your lawsuit. And you can generally only appeal “final” orders. You know, those judgments or orders which finally determine a right. BUT, with this “new” probate appeals rule, this new change permitted the IMMEDIATE review of probate court orders.
In other words, for certain rulings, you don’t have to wait until later.
What that also means is that if you want to appeal a certain ruling by a Florida probate court, you MUST do so know.
Failure to file a timely appeal means that, generally, you have abandoned further judicial review of that order or judgment. If an order or judgment is not appealed, then that becomes a final, “un-appealable” order. That means that you can’t later try to change it, or appeal it. You can’t later seek review.
This is troubling for some probate lawyers and their clients. And it can frustrate the probate process. Many times, they just don’t realize two things. First, that an order which was just issued might have a bigger effect on your probate case than you realize. And, second, that if you want a Florida appeals court to review certain orders, you must do so NOW. (To read more about the probate process in Florida, click this LINK for free commentary and insight.)
Florida Probate Appeal — important points you must know
Here is a list of some important points which you must know about a Florida Probate Appeal.
- First of all, make sure you made your argument at the trial court. If you did not, you are prohibited from raising a new issue on appeal. In other words, if you didn’t argue something to the probate judge, you can’t raise it for the first time on appeal. A January 13, 2023 3rd District Court of Appeal case stands for this proposition. Although it’s more of an operating agreement case, it did involve the personal representative of a Florida probate. You can read that opinion for free by clicking THIS LINK. That case is the Kasik v Fernandez case.
- Second, can you get your attorneys fees paid? Remember that Florida follows the American rule. Everyone pays their own attorneys fees unless there is a statute or a contract which permits someone to get attorneys fees. (Typically, the “prevailing party.”) Seeking appellate attorneys fees and costs is another “sub-specialty”).
- Third, there is a “laundry list” of what orders from a probate court you can appeal. Read Florida Rule of Appellate Procedure 9.170.
- That rule includes the right to seek judicial review of orders regarding homestead, certain orders regarding a will, including a will contest, the appointment or removal of a personal representative, “heirship“, settlement agreements and other rulings. But, the devil is in the details. So, consider finding an a probate appellate attorney BEFORE your hearing or ruling. And if you need to file an appeal, remember that time is not on your side.
- Finally, if you WIN and the other side files an appeal: should you file a cross-appeal? Evaluating whether or not you want to get involved in the appeal, or, to what extent, is a strategy call.
- For a short video on a petition to revoke probate appeal, click here.