Edelstein v. Beagell, — So.2d —-, 2009 WL 500913 (Fla. 1st DCA Feb 27, 2009)

Not all probate orders are created equal. Some are appealable, and some aren’t. The controlling rule is broadly stated in Florida Rule of Appellate Procedure 9.110(a)(2) as follows:

(a) Applicability. This rule applies to those proceedings that . . . (2) seek review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code;

The rule seems simple, but figuring out which orders "finally determine a right or obligation of an interested person" is easier said than done. In the linked-to case the appellant guessed wrong and had her appeal dismissed by the 1st DCA. Here’s how the court explained its ruling:

Having considered the appellant’s response to this Court’s order of December 11, 2008, we dismiss this appeal for lack of jurisdiction. The order on appeal, entitled “Final Order on Petition for Determination of Beneficiaries,” denied the petition below without making any final determination as to the beneficiaries of the estate. Therefore, the order on appeal did not “finally determine a right or obligation of an interested person,” so as to be appealable under Florida Rule of Appellate Procedure 9.110(a)(2). See Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005); Sanchez v. Masterhan, 837 So.2d 1161 (Fla. 1st DCA 2003).

Do we need a better rule?

A subcommittee of the Probate and Trust Litigation Committee has been looking at ways to add a bit more certainty to the question of when a probate order is or is not appealable. They’ve been working on this since 2007 and still no changes, so don’t hold your breath. But in the meantime committee members Sean Kelley, Tom Karr and Peter Sachs have produced an extremely thorough 38-page white paper [click here] that’s worth holding on to. Their analysis of the existing rule and how it’s been applied by each of the DCAs is a must read the next time you’re trying to figure out whether to file that notice of appeal . . . or not.