When to file a Motions for Attorneys fees in a Florida probate?
When should I file a motion for attorneys fees and costs in a probate proceeding? Many people involved in estate lawsuits or inheritance litigation in Florida may not know about a huge exception to the Florida Rules of Civil Procedure. The short answer is that you may have more time to seek fees in a probate proceeding that you realize, or may have been told.Many probate proceedings are “adversary” which means that the Florida Rules of Civil Procedure apply. You can read what legal proceedings in probate are adversary by reviewing Florida Probate Rule 5.025. However, there is an important exception. Florida Rule of Civil Procedure 1.525 does not apply. That’s the rule that says you must file a motion for attorneys fees and costs within 30 days of judgment. Miss that deadline in a civil lawsuit, and you lose your right to have the other side pay your fees and costs. But, probate law in Florida is different. That 30 day time frame, or time limitation to seek fees, is taken away in the probate setting.But, warn experienced probate litigators: don’t wait until the end : file your fee petition as soon as you can. In fact, under one DCA opinion, you can file your motion for fees BEFORE trial or a hearing.
To read more about the timing of a fee petition in a Florida probate, read the Stone case. This is a 2014 4th DCA case which overturned or reversed the West Palm Beach probate court judge’s ruling on a fee motion.
But be careful: there is a case which pre-dates Stone, called Finnegan, which applies the “old” rule. Your estate lawyer should be quick to distinguish Finnegan from existing law.