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If the estate assets disappear while the parties litigate their claims against each other it doesn’t really matter who wins or loses, the assets are gone.  The way to address this risk is to ask the court for a temporary injunction freezing the assets.  In general commercial litigation these types of orders should be rarely granted. In contested guardianship and probate proceedings they should be freely granted.  The trick is to make sure you, your opponent, and your trial judge all understand this dramatically different standard.

There’s loads of case law out there saying temporary injunctions should be rarely granted.  All of that precedent comes from commercial litigation cases.  Don’t get caught in that trap. 

In probate and guardianship proceedings the key temporary-injunction case to focus on is In re: Estate of Barsanti, 773 So.2d 1206 (Fla. 3d DCA 2000), in which the probate court was reversed for failing to apply the different and much more liberal standard for granting temporary injunctions in contested probate proceedings:

Based on the record before us, we find that the probate court abused its discretion in failing to grant the temporary injunction and in finding that the P.R. failed to establish either a clear legal right or an inadequate remedy at law. In addition, we agree with the Estate that the probate judge failed to adhere to established law that the traditional standards controlling the issuance of temporary injunctions in other civil actions do not constrain the probate court in the exercise of its inherent jurisdiction over a decedent’s estate.

Case Study

Ripoll v. Comprehensive Personal Care Services, Inc., — So.2d —-, 2007 WL 2043483 (Fla. 3d DCA Jul 18, 2007)

The linked-to case is important because it explicitly extends the Barsanti rule to guardianship proceedings as follows:

A circuit court has the inherent authority to monitor a guardianship and to take action it deems necessary to preserve the assets for the benefit of the beneficiaries. See In re: Estate of Barsanti, 773 So.2d 1206 (Fla. 3d DCA 2000). To that end, the court:

has the authority to issue temporary injunctions freezing assets claimed to belong to [a guardianship], even though ultimate ownership of those assets may be in dispute. See Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995); Sanchez v. Solomon, 508 So.2d 1264 (Fla. 3d DCA 1987).

Barsanti, 773 So.2d at 1208.

Lesson learned?

Niche practitioners distinguish themselves by delivering better results for their clients, at less cost, in a shorter time period, and with greater certainty of success.  One of the reasons why niche practitioners can distinguish themselves this way is that their expertise and experience in a particular area of the law makes it infinitely more likely that they will spot the key issues of a particular case early on and know how to effectively proceed.  If your niche is probate or guardianship law, make sure you know the cases cited above.  One day the key issue you spot will be the need for a temporary injunction freezing the estate assets, and when you do, these cases will make you look good.