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Probate Appeal

Probate Information • Jan 14, 2023
post about Probate Appeal

When does a probate appeal in Florida make sense? Well, for some orders, you actually MUST appeal right NOW– within 30 days of the order. Or you can’t later. Here are some pointers for beneficiaries, family members, creditors and personal representatives. For legal commentary on appeal attorneys fees, click here.

A probate appeal in Florida got a lot more interesting since a new rule took over.

Probate Appeal and the “secret rule

OK, so you are involved in a probate. A Florida estate.

And the probate court judge just handed down a ruling that you don’t like. And, maybe that ruling affects one’s inheritance, or some important estate assets (like homestead), or how the estate will be administered. (like, who will be the administrator or personal representative). Maybe there was a will contest. Anyway……

You want to know if you can, or should, file an appeal.

There is a lot to consider over a short time frame. Remember, in the Florida probate process, time is almost never on your side. Super short deadlines requiring you to act.

For a free Florida legal video on this subject, click HERE.

There are two things which you need to know right away.

One, how much time do you have?

Two, is the order that was handed down, one subject to Florida Rule of Appellate Procedure 9.170?

A few years ago, probate litigation attorneys were introduced to a new appellate rule. This “new” rule (not so “new” anymore, right?) made certain probate court orders IMMEDIATELY “APPEALABLE.” That also means that if you don’t appeal now, you end up living with that ruling in most cases.

(For a short video on an appeal regarding a petition to revoke probate, click here).

How to Handle This

One of the best ways to handle this is to anticipate an appeal.

Before trial, before the evidentiary hearing, before the ruling.

Trying to anticipate potential appellate rights, or appeals, is what good trial and appellate attorneys do every day.

Why is this important?

Because you have to have a clear “record” at the trial court of your point of view. Your legal argument. You want a clear record for the appellate court to review. And, as the appellant, it’s your job to get the “record” up to the District Court of Appeal. It’s your burden — your job — to show the DCA where the probate court committed error.

You should have a court reporter at the trial and every hearing.

You should file papers with the court so your legal argument is clear.

If you believe that the court mis-understood something, made a clerical error, or just, simply, over-looked something, then….. consider a motion for rehearing or reconsideration.

Remember the general rule: you can’t raise an issue for the first time upon appeal. In other words, generally, if you did not argue something in the probate court (and there is an appeal), you can’t argue that now (for the first time upon appeal).

For a complete list of all the orders which you can appeal right now, read that appellate rule 9.170. And remember that the appellate rules are DIFFERENT than the Probate Rules.

Finally, ask your probate appellate lawyer whether a cross-appeal makes sense. That’s when you win, but the other side files an appeal. You may want to cross-appeal on a very narrow issue.