Cason v. Hammock, 2005 WL 1488650 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed) Florida’s probate code and procedural rules are designed to cut off possible litigation as soon as possible . . . whenever possible. Used wisely by an experienced probate attorney, these statutory and procedural rules are a powerful shield. On the other hand, not focusing on these seemingly mundane details exposes an estate to all the potential delays, expenses and rancor inherent to litigation. In this case the estate was challenged on two fronts: petitions were filed seeking (1) removal of the personal representative and (2) revocation of the probate proceedings. Citrus County Judge Richard Howard denied both petitions on purely procedural grounds. In other words, the estate seemed to have successfully employed the “litigation shields” built into Florida’s probate code and procedural rules. On appeal, the Fifth DCA snatched both victories away from the estate. First, the Fifth DCA held that the trial court was wrong when it ruled that the party seeking to remove the personal representative lacked standing because she did not fall within the definition of an “interested person” under 2004->Ch0731->Section%20201#0731.201″>F.S. § 731.201(21). The estate had argued that because the petitioner was only entitled to a specific devise of $5,000 and there were sufficient estate funds to pay this specific devise, she was not an “interested person” and therefore under Fla. Prob. Rule 5.440(a) she lacked standing. The Fifth DCA held that the estate would have been correct . . . if the devise had already been paid. Because the devise had not been paid, the petitioner continued to have standing. LESSON LEARNED: One way to head off litigation is to pay off specific devisees as soon as possible. Second, the estate argued (and the trial court agreed) that the petition to revoke probate was barred by the three-month state of limitations period triggered by 2004->Ch0733->Section%20212#0733.212″>F.S. § 733.212(3) when an interested person is served with formal notice of administration (see Fla. Prob. Rule 5.240). The Florida Probate rules governing formal notice are found in Fla. Prob. Rule 5.40(a). The estate relied on this rule when it attempted to formally serve notice of administration on the petitioner . . . who was a minor. Unfortunately for the estate the Fifth DCA held that Fla. Prob. Rule 5.40(a) does not address service of minors. Consequently, 2004->Ch0048->Section%20041#0048.041″>F.S. § 48.041 governs. The estate did not comply with this statue, and thus forfeited the litigation shield provided by 2004->Ch0733->Section%20212#0733.212″>F.S. § 733.212(3). LESSON LEARNED: The importance of being absolutely sure a party receives formal notice of administration can not be overstated. When in doubt (for example, when serving notice on a person who is incapacitated or a minor) be absolutely sure you got it right.
