You’ll often hear lawyers speak in terms of suing “the estate,” or transferring property to “the estate,” or collecting a bill that’s payable by “the estate.” This kind of loose talk usually doesn’t matter, but sometimes it does. To be clear, under Florida law there’s no such thing as a separate legal entity known as an “estate.”
If you want to sue, get paid from, or transfer property to, an “estate,” all of that needs to happen via the estate’s court-appointed personal representative (PR).
Spradley v. Spradley, — So.3d —-, 2017 WL 913632 (Fla. 2d DCA March 08, 2017):
Skip the PR and you could end up getting your lawsuit dismissed, which is exactly what happened in the linked-to case above. Lucky for the plaintiff the 2d DCA said that was a bit harsh, he should have been given a chance to amend his complaint and sue the right party. So saith the 2d DCA:
[T]o the extent that Mr. Spradley attempted to sue his mother’s estate, we find that the trial court erred in failing to grant Mr. Spradley leave to amend his complaint to substitute the proper party. Although there does not seem to be a Florida case directly on point, it is well-settled that “an ‘Estate’ is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity, that is the proper party.” Ganske v. Spence, 129 S.W.3d 701, 704 n.1 (Tex. App. 2004) (citations omitted); see also § 733.608, Fla. Stat. (2016) (describing the general power of the personal representative); Reopelle v. Reopelle, 587 So.2d 508, 512 (Fla. 5th DCA 1991) (highlighting that only the personal representative of a decedent’s estate would have the right to intervene in litigation for the benefit of all the beneficiaries of the decedent’s estate); 31 Am. Jur. 2d Executors and Administrators § 1141 (2016) (“Since estates are not natural or artificial persons, and they lack legal capacity to sue or be sued, an action against an estate must be brought against an administrator or executor as the representative of the estate.”); 18 Fla. Jur. 2d Decedents’ Property § 721 (2016) (same). Here, Mr. Spradley not only failed to sue the proper party, but he also failed to allege that the estate had been opened and a personal representative appointed. Despite these deficiencies, the trial court should have granted Mr. Spradley leave to amend his complaint before dismissing his action. See Coby v. Food World, Inc., 746 So.2d 570, 572 (Fla. 1st DCA 1999); Reed v. Mims, 711 So.2d 169, 172 (Fla. 3d DCA 1998) (“[W]here it appears that a pleading’s deficiencies can be cured by an amendment, a reasonable opportunity for amendment should be allowed.”).
This should be basic stuff, but you’d be surprised how often lawyers (and judges) get this wrong. The next time that happens you’ll want to have this case handy.