1-561-514-0900 FREE CONSULTATION

SUING THE PERSONAL REPRESENTATIVE, NOT THE “ESTATE”-knowing who to serve in probate litigation

Uncategorized Dec 16, 2013

Are you owed money from a Florida resident who just passed away?

If so, enforce your rights as a creditor of the Florida estate and don’t make the same mistake a plaintiff in federal court in Florida just made. Serve the right person!

In Florida, we administer estates of deceased residents, and regarding Florida property, by opening up a case, or estate administration, sometimes referred to as “probate administration”, or simply “probate.”

We open up probate, that is to say, we begin or initiate an official court probate proceeding of the deceased Florida resident by paying a filing fee and filing a petition for administration.

Where do you open Florida probate? The proper place, or location, for a probate, in Florida, is the county where the Florida resident was domiciled, or resided, at his or her death. Or, a probate may also be opened up where the Florida resident’s property is located.

When someone begins the estate administration process in Florida, you must follow the Florida Probate Rules, and be guided by the Florida Probate Code. These two bodies of law serve as your backbone, and procedural guidepost, to guide you through the Florida estate and Florida probate system.

The Florida Probate Rules include all the rules which you must follow for all estates and guardianships in Florida. The Florida Probate Code, however is a set of statutes or laws governing estates and guardianships. Both the the Florida Probate Rules , and the Florida Probate Code are available to view for free on the Internet.

Okay, so, let’s say that the dead person owed you money. It doesn’t matter what for. And it doesn’t matter where you live. But if you are claiming that you want money from the dead Florida person, you you’re probably wondering: how do I get paid? The answer is, you get paid from the dead Florida resident according to the Florida Probate Rules , and according to the Florida Probate Code .

There is an entire procedure for creditors of a Florida estate, that is, people who are owed money by dead persons who lived in Florida, that must be followed to enforce your rights as a creditor. Want to get paid? You better follow the rules. Because the person who owes you money is now dead, you must deal with his or her estate.

If you are suing the estate in a lawsuit, make sure you name the right person.

Put another way, you need to name the proper defendant and you also need to serve process on the proper defendant. Failure to name the correct defendant, or serve process on the proper defendant, will get your Florida estate lawsuit dismissed. That’s because Florida, like most states, wants to make sure that we all get it right. Florida is protecting everyone’s constitutional rights to be served with a lawsuit properly, to be sued properly and be given an opportunity to defend themselves properly.  Service of process in Florida, that is to say,  how a defendant is presented with a lawsuit, called the “complaint”, and a “summons”, ordering the defendant to answer the complaint in a Florida court of law within 20 days, is serious stuff.

A very recent federal court case in South Florida, the United States District Court for the Middle District of Florida, was handed down, literally last month, and dealt with the issue of improperly serving and estate. The proper party was not sued. A creditor of the deceased person served the complaint upon a lawyer who the creditor believed could accept service for the deceased person, or, otherwise, who was administering the deceased person’s estate.  Wrong on both counts.  Put another way, the plaintiff in this federal lawsuit wanted to sue the estate of the dead person, and made service upon a lawyer who evidently was not involved in the estate, and who, by all accounts, was not the proper or named personal representative of the dead person’s estate.

In Florida, the person who administers an estate, sometimes called an “administrator” or an “executor” in other states, is referred to as the “personal representative.”

If you’re bringing a lawsuit against the dead person in Florida, if you’re seeking damages from a dead person, don’t sue the “estate.” You have to sue the named personal representative of the deceased Florida resident’s estate.  They are appointed by the court after the petition for administration is filed. The proper way to sue a dead person, or to seek relief or damages, in Florida, of the deceased person’s estate, is to sue the proper, named, appointed personal representative. So, for example, on your complaint you would sue, not “the estate of John Doe”, but rather, “Jane Smith, personal representative of the estate of John Doe.”

This may sound very simple, and perhaps it is too many. But, it is, nonetheless very important to Florida courts and Florida judges.  Florida courts, and the Florida Rules of Civil Procedure, are like many other states: get it right or go home.

Oh, how do you get your money from the dead person if there is no Florida estate that has been opened?  What if no Florida personal representative has been appointed?  How do you get paid from the dead Florida person?  Get in your car, bring your check book, pay the filing fee in the county where the Florida resident died, and file a petition for administration: open up a Florida probate.

Open up a Florida estate proceeding. In Florida, any person who is “interested” in the estate of the decedent, or, put another way, any person who will be affected by the outcome of an estate proceeding in Florida, may petition to open a Florida probate, may be appointed personal representative in Florida, and may participate in a Florida probate proceeding.

In short, know who we are suing, know how to handle Florida estates, and know how to recover your money as a creditor of the deceased Florida resident, and know how to deal with Florida estates. Advocate hard. Litigate smart.