How do you preserve your Florida estate issue for appeal in a Florida probate lawsuit? Just yesterday, I provided Florida estate commentary on a July 31, 2015 Florida probate appeal out of the 3rd DCA, the appeals court for Miami Dade probate matters. In that probate case, which involved an ex wife making a claim against a Florida estate, the probate appeal failed. One of the issues at the Florida appellate court in this creditor claim case had to deal with the isssue of not preserving your appeal: the appellate issue was not preserved in the Miami Dade probate court. Are there some ways to preserve your Florida estate issues for appeal when you open up a Florida probate? What should your Florida estate lawyer know about helping you with appeals when you are involved in estate lawsuits or probate disputes? And, if you are the Palm Beach executor of a will, or a Personal Representative, are there things which you can do now, to address possible appeals later?
3 Things to Help with Your Florida Probate Appeal
- Speak up. Get to the probate court and get on the record. If the executor of the Palm Beach estate wants to close out the estate, and shut down the Florida probate, but you have a creditor’s claim, you better say something. So, get to court, get in front of the probate judge Palm Beach Gardens and say something. OBJECT. The probate laws of Florida, and the Florida rules of civil procedure, don’t help those who sit on their rights. And silence implies consent. If you fail to object timely at the probate court level in Florida, at an estate hearing, for example, you may not be able to have a good appeal if you decide to appeal a probate court hearing or order. In this recent Miami probate appeal case, evidently there was a hearing and the losing side did not speak up.
- Write up. File a written response with the Florida probate court, setting forth your side of the case. You have not received your inheritance from the Palm Beach probateand the executor wants to close the estate? File a response in opposition and anything else your Boca Raton probate litigation law firm thinks is wise. Then, you have a record of your position, just in case someone appeals the probate court ruling.
- Keep a record. Get a court reporter to show up. Hire and pay for a court reporter to attend the Florida estate hearing and take down what is being said. Then, you have a record of it. Failure to have a transcript of the probate proceedings in Florida make over-ruling a Probate Court on appeal very difficult. Why? With no record or transcript, how is the Florida appeals court know if the probate court judge made an error or not?
When Sons & Mothers Are Against Each other in Probate Court
- Palm Beach executors have a duty to expeditiously manage an estate
- But, isn’t a creditor like an ex wife or a wife, an “interested person” under the Florida Probate Code who is entitled to make their case in the Palm Beach probate?
- There is a July 31, 2015 Florida probate appeal about closing an estate while a claim was pending. Sort of.
- The appellate opininon states that the claim of the ex wife was denied: there was an order that the claim against the estate by the ex-wife was untimely.
- OK….then, why wasn’t that order appealed in 2010 and why was there another hearing in 2014?
Son vs. Mother in Florida estate — the Miami estate wins
- Florida probate lawyers know that sometimes adult children can be “adverse” to their mother or father in a probate litigation Palm Beach
- This recent Miami Appeal case was just that: sons versus their mother
- The mother of the children was their father’s ex-wife and she wanted some of her children’s father’s estate money
- At least one of them objected to the creditor’s claim against the estate by their mother at the probate court Miami
- The ex-wife, and mother of the personal representative of the Florida estate, was a probate creditor. Was she being treated fairly in the Florida estate?
- What? Well………….is this all about money, or creditor’s claims and how long you have to file a claim in a Florida estate?
- Here’s a case of the personal representative of the Florida estate, through his Florida probate lawayer filing an appeal of a probate court order
- The deceased person’s ex wife also appealed this probate order
Florida Probate Court Orders Executor to Distribute Estate Assets
- So, the Florida probate court ordered the executor of the will, what we in Florida estate circles call the personal representative, to distribute the estate’s assets andclose the estate
- Many times, Palm Beach estate lawyers will tell you, that if there is no action in a Palm Beach probate for a while, the probate court Delray Beach will issue an orderadministratively closing the Lake Worth estate
Ex Wife Wants Inheritance from Florida Estate of Ex Husband
- So, it seems that the deceased person and his ex wife were divorced…..about 20 years ago in Puerto Rico.
- But there was no property distribution in the divorce
- So, what do you do if you are owed $$$$$$ property distribution from a divorce but your husband dies in Florida?
- You file a statement of claim or a creditor’s claim in the Florida estate
- Why does an ex-wife file a statement of claim in the Florida probate?
- Because if an ex-wife who is owed money, either from a prenuptial agreement, a divorce court settlement (marital settlement agreement) or judgment or order from the divorce, the ex-wife, or ex-husband for that matter, can be an estate creditor; or….
- If your husband died before the divorce was finalized, you are a spouse with a spouse’s rights to inheritance.
- So, an ex wife or a wife is either a creditor of the estate or a beneficiary.
- In this Miami Probate appeal case, in 2005, the ex husband died.
- Wait, has this estate in Florida really been going on for 10 years?
- Well, the question you might want to ask a Palm Beach estate lawyer is: WHY has this estate been going on for 10 years?
Will Filed in Florida Estate– the importance of preserving your appeal rights down in the Florida probate court hearing
- So the will was filed in the probate court and a petition to probate the will was filed in the Florida probate as well
- The Puerto Rican court gave the ex wife one half of the marital assets of $415,424.39 !
- The spouse, ex wife, wanted to intervene in the Florida probate.
- Why do you want to intervene in the Florida probate when you are a creditor? Hire a Florida estate litigator and go get your money
- The son wanted to close the Florida probate; shut that estate down
- There was a probate court hearing, where, it seems, an objection was not taken to closing the estate and distributing the assets, as suggested by the personal representative of the Florida estate.
- But, this supposed silence may have been irrelevant, perhaps. The statement of claimby the ex-wife had already been denied by the probate court. What we don’t know is whether an independent civil lawsuit, suing the estate, was ever filed, or why the order denying the statement of claim or creditor’s claim, was not appealed (the claim was supposedly untimely…time barred, mostly likely filed outside of the 2 year statute of limitations in Florida for filing a claim against an estate).
- On appeal of the probate court order closing the estate, the wife raised an appellate issue: the probate court committed error by telling the personal representative of the estate to distribute the estate and close the probate
- But, this was evidently NOT raised in the probate court
- And what you don’t raise in the probate court cannot, generally, be later argued on Florida probate appeal
- In Palm Beach probate appeal “language” that is referred to as not preserving your issue for appeal.
Florida Probate Appeal Decision to Read
- Want to read the entire opinion on this Florida probate appeal?
- Here is the free link to the read it: http://5dca.org/Opinions/Opin2015/072715/5D14-775.op.pdf