In re Amendments to Florida Rules of Appellate Procedure, No. SC11-192 (Fla. Nov. 3, 2011)
A subcommittee of the Probate and Trust Litigation Committee has been looking at ways to add greater certainty to the question of when a probate/guardianship order is or is not appealable since 2007. That effort has finally borne fruit in the form of the Florida Supreme Court’s new Florida Rule of Appellate Procedure 9.170, which goes into effect on January 1, 2012 (see linked-to opinion above).
To understand why this new rule was adopted and the problem it is supposed to address, you’ll want to read an extremely thorough 38-page white paper [click here] produced by the Bar committee working on this project. Here’s an excerpt:
By way of background, prior to the 1996 amendment to the Florida Rules of Appellate procedure, Rule 5.100 of the Florida Probate Rules governed when an order in a probate or guardianship case was appealable. Rule 5.100 provided in part that “all orders and judgments of the Court determining rights of any party in any particular proceeding in the administration of the estate of a decedent or ward shall be deemed final, and may, as a matter of right, be appealed to the appropriate district court of appeal.” The problem was, and really still is, that it is not clear exactly what qualifies as a final order and the case law does little to refine or define what finality is.
. . . . .
Thus, the 3d DCA noted in its decision in Delgado v. The Estate of Garriaga, 870 So.2d 912, 914 n.5 (Fla. 3d DCA 2004),
Perhaps there should be further study of this problem with a view toward developing a rule further defining what constitutes a final order in a probate appeal. It appears wasteful to allow piecemeal appeals, one before and the other after the adversary action.
. . . . .
One approach to resolving this problem is to supplement the existing appellate rule with a non-exclusive list of types of probate and guardianship orders that would be included as orders that “determine a right or obligation of an interested person.” These “types” of orders would be identified by what they do rather than what they are called.
In new Appellate Rule 9.170 the Florida Supreme Court adopted the idea of including a non-exclusive list of types of probate and guardianship orders that would be deemed per se appealable orders “determining a right or obligation of an interested person.” The list is 24 items long. Here’s the relevant portion of the new rule, as set forth in the linked-to opinion above:
Orders that finally determine a right or obligation include, but are not limited to, orders that:
- determine a petition or motion to revoke letters of administration or letters of guardianship;
- determine a petition or motion to revoke probate of a will;
- determine a petition for probate of a lost or destroyed will;
- grant or deny a petition for administration pursuant to section 733.2123, Florida Statutes;
- grant heirship, succession, entitlement, or determine the persons to whom distribution should be made;
- remove or refuse to remove a fiduciary;
- refuse to appoint a personal representative or guardian;
- determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward;
- determine a motion or petition to restore capacity or rights of a ward;
- determine a petition to approve the settlement of minors’ claims;
- determine apportionment or contribution of estate taxes;
- determine an estate’s interest in any property;
- determine exempt property, family allowance, or the homestead status of real property;
- authorize or confirm a sale of real or personal property by a personal representative;
- make distributions to any beneficiary;
- determine amount and order contribution in satisfaction of elective share;
- determine a motion or petition for enlargement of time to file a claim against an estate;
- determine a motion or petition to strike an objection to a claim against an estate;
- determine a motion or petition to extend the time to file an objection to a claim against an estate;
- determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate;
- settle an account of a personal representative, guardian, or other fiduciary;
- discharge a fiduciary or the fiduciary’s surety;
- award attorneys’ fees or costs; or
- 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.