What Is an “Adversary Proceeding” in a Florida Probate Estate?

The process of administering a Florida probate estate is generally not adversarial. That is to say, a probate proceeding does not typically involve litigation. The personal representative appointed to administer the estate simply gathers any probate assets, pays any debts and expenses, and distributes whatever remains to the heirs or beneficiaries of the decedent. The role of the court in this process is often minimal.

Of course, there are cases where probate does not go quite so smoothly. An interested person may raise a legal claim against the personal representative or the estate that requires active adjudication by the court. In legal terms, this is known as an adversary proceeding. Essentially, once an adversary proceeding commences, it is handled the same way as any other civil lawsuit under Florida law.

Common Examples of Florida Adversary Proceedings

The Florida Supreme Court is responsible for devising rules governing adversary proceedings. The most recent revision to those rules identify the following types of adversary proceedings:

• Surcharge Actions: The petitioner seeks to hold the personal representative personally liable–i.e., financially responsible–for failing to perform their duties in administering the estate.
• Guardianships: The petitioner seeks to remove or surcharge a guardian who was previously appointed to care for a dependent adult while they were still alive.
• Injunctions: The petitioner seeks a temporary or permanent injunction to protect a vulnerable adult from exploitation.
• Recovered Wills: The petitioner seeks to probate a wall thought previously lost or destroyed but later discovered.
• Beneficiaries: The petitioner seeks to establish they are a beneficiary of the estate.
• Contests: The petitioner contests the validity of the will. For example, the petitioner might claim the will was not properly executed or was the product of undue influence.
• Revocation: The petitioner seeks to revoke a will that was previously admitted to probate.
• Modification: The petitioner seeks a judicial interpretation of a term in the will that is unclear or ambiguous. This includes requests for the court to rewrite or “reform” part of the will.
• Devises: The petitioner seeks to cancel a devise (specific bequest) made under the will.
• Partition: The petitioner seeks to partition (divide) property that is considered part of the probate estate.
• Pretermitted Shares: The surviving spouse, who married the deceased spouse after they made their will, seeks to claim a share of their estate as an unintentionally omitted spouse.
• Elective Share: The surviving spouse claims a statutory share of the deceased spouse’s estate.

This list is not exhaustive. The Florida Probate Rules allow the court to declare other proceedings as “adversary proceedings,” provided all interested persons are properly notified and served.

Contact a Florida Estate and Trust Litigation Attorney Today

If you are involved in any type of adversary proceeding, whether as a personal representative or another interested person, it is important that you seek out qualified legal advice. To speak with a Pompano Beach estate and trust litigation lawyer, contact the offices of Mark R. Manceri, P.A., today.

Source:

supremecourt.flcourts.gov/content/download/2436831/opinion/Opinion_SC2023-1661.pdf