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Probate & Trust Appeals

Knowing how to proceed at a trial for a Florida probate or trust matter, as well as guardianship lawsuits, is important. After all, if you win at trial, you don’t want the victory to overturned on appeal. Likewise, if you are losing at trial, or if your Florida estate or inheritance case does not go your way, is your probate litigation law firm prepared with an appeal strategy? Hint: waiting for the end of trial to see if someone files an appeal is NO strategy at all. Have you identified the issues during your trial? Better yet, before the trial? Have you anticipated what may lie ahead for appeals of probate and trust lawsuits? In short, are you prepared for a Florida probate or trust appeal?

Under Florida law, a final judgment is an order from the trial court which may be appealed. An appeal, with some exception, is to be taken from a final judgment. Appellate review of interlocutory orders can also be sought where the Florida Rules of Appellate Procedure (Fla. R. App. P.) so provide. So, can you appeal your estate or probate issue now, or must you wait until the end of your trial to appeal the final judgment?

Fla. R. App. P. 9.170 (“Appeal Proceedings in Probate and Guardianship Cases”) became effective on January 1, 2012. The rule itself reads as follows:

(a) Applicability. Appeal proceedings in probate and guardianship cases shall be as in civil cases, except as modified by this rule.

(b) Appealable Orders. Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. Orders that finally determine a right or obligation include, but are not limited to, orders that:

  1. determine a petition or motion to revoke letters of administration or letters of guardianship;
  2. determine a petition or motion to revoke probate of a will;
  3. determine a petition for probate of a lost or destroyed will;
  4. grant or deny a petition for administration pursuant to section 733. 2123, Florida Statutes;
  5. grant heirship, succession, entitlement, or determine the persons to whom distribution should be made;
  6. remove or refuse to remove a fiduciary;
  7. refuse to appoint a personal representative or guardian;
  8. determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward;
  9. determine a motion or petition to restore capacity or rights of a ward;
  10. determine a petition to approve the settlement of minors’ claims;
  11. determine apportionment or contribution of estate taxes;
  12. determine an estate’s interest in any property;
  13. determine exempt property, family allowance, or the homestead status of real property;
  14. authorize or confirm a sale of real or personal property by a personal representative;
  15. make distributions to any beneficiary;
  16. determine amount and order contribution in satisfaction of elective share;
  17. determine a motion or petition for enlargement of time to file a claim against an estate;
  18. determine a motion or petition to strike an objection to a claim against an estate;
  19. determine a motion or petition to extend the time to file an objection to a claim against an estate;
  20. determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate;
  21. settle an account of a personal representative, guardian, or other fiduciary;
  22. discharge a fiduciary or the fiduciary’s surety;
  23. award attorneys’ fees or costs; or
  24. approve a settlement agreement on any of the matters listed above in (1)-(23) or authorizing a compromise pursuant to section 733.708, Florida Statutes.

(c) Record; Alternative Appendix. An appeal under this rule may proceed on a record prepared by the clerk of the lower tribunal or on appendices to the briefs, as elected by the parties within the time frames set forth in rule 9.200(a)(3) for designating the record. The clerk of the lower tribunal shall prepare a record on appeal in accordance with rule 9.200 unless the appellant directs that no record shall be prepared. However, any other party may direct the clerk to prepare a record in accordance with rule 9.200. If no record is prepared under this rule, the appeal shall proceed using appendices pursuant to rule 9.220.

(d) Briefs. The appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.220 (if applicable), shall be served within 70 days of filing the notice of appeal. Additional briefs shall be served as prescribed by rule 9.210.

(e) Scope of Review. The court may review any ruling or matter related to the order on appeal occurring before the filing of the notice of appeal, except any order that was appealable under this rule. Multiple orders that are separately appealable under rule 9.170(b) may be reviewed by a single notice if the notice is timely filed as to each such order.

While Rule 9.170(b)(23) appears to make clear that and order involving an “award attorneys’ fees or costs” is proper for appeal, the First District Court of Appeal in Carrithers v. Cornett’s Spirit of the Suwannee, Inc., 93 So. 3d 1240 (Fla. 1st DCA 2012) illustrated that the statute is not that black and white.

In Carrithers the Appellant filed an appeal of an order on “Final Judgment for Appellate Attorneys’ Fees and Costs,” which was entered at the trial court pursuant to an order issued by the appellate court in a separate appeal. The appealed court, in dismissing the appeal regarding appellate attorney’s fees, reasoned:

The new rule provides a non-exclusive list of 24 categories of probate and guardianship orders that are appealable because they finally determine a right or obligation of an interested person. Included in this list are orders that award attorney fees. Fla. R.App. P. 9.170(b)(23). However, an order assessing fees that is entered by a probate court pursuant to an appellate court order provisionally awarding fees is not an order that “awards” attorney fees for purposes of appeal under the new rule. See In re Estate of Udell, 501 So.2d 1286, 1288 (Fla. 4th DCA 1986). The general rule with respect to appellate attorney fees, including appellate attorney fees in probate matters, is that “only the appellate court is authorized to award attorney’s fees to the prevailing party and against the losing party.” Id. “An order determining the amount of appellate attorney’s fees on remand from an appellate court has the characteristics of a final order but review of such an order by a plenary appeal is not necessary or even proper.” Pellar, 687 So.2d at 284.

Id. at 1241-2.

If you are concerned about a probate order entered by the court, and want to be appraised of your options at law, consider consulting with an experience probate appellate attorney. Please be cognizant of timing, a notice of appeal generally must be filed within thirty (30) days of the order to be reviewed. Fla. R. App. P. 9.110.

Appealing will contests, trust lawsuits and related property and business matters is serious business with unique appellate rules of procedure with short time frames. Pankauski Hauser PLLC has Robert Hauser handle appeals throughout Florida on a number of recurring legal issues in not just estate, probate, trust and guardianship matters, but also in commercial litigation, business lawsuits, divorce and family law. Call Robert Hauser, Esquire, Florida Bar Board Certified Lawyer (appellate law) for more information if you are preparing for a trial, are in the middle of a trial, or if a notice of appeal has been filed. Rob’s number is 1-561-514-0900 Extension 102.

Florida Will Contests:Do Prior Beneficiaries Have the Right to Sue to Revoke Probate? >

Florida Estates and Timely Creditor Claims >

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