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 a court-appointed personal representative (“PR”). You’d be surprised how often this basic point gets overlooked (see here, here).
In the De La Riva case linked below, the 4th DCA provided this short summary of the law as applied to cases where you’re trying to sue an estate:
“[I]t is well-settled that ‘an “[e]state” 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.'” Spradley v. Spradley, 213 So. 3d 1042, 1045 (Fla. 2d DCA 2017) (quoting Ganske v. Spence, 129 S.W.3d 701, 704 n.1 (Tex. App. 2004)). “[O]nly when the proper party is in existence may it then be properly served and substituted ….” Stern v. Horwitz, 249 So. 3d 688, 691 (Fla. 2d DCA 2018) (citations omitted) (emphasis added).
In this case the challenge for plaintiff’s counsel was that the defendant’s estate was dragging its feet on getting a PR appointed. After months of waiting and still no PR, plaintiff’s counsel simply amended his complaint to name a fictitious “John Doe” as PR for the estate. This may have seemed like a clever workaround, but as a matter of law it “nullified the subsequent proceedings,” including plaintiff’s proposal for settlement under F.S. 768.79.
After a failed settlement attempt and a great result at trial, plaintiff’s counsel tried to collect fees from the defendant pursuant to F.S. 768.79. Not so fast said the 4th DCA. You can’t sue a “fictitious” PR called “John Doe” and simply go about your business. No PR means “no fees for you,” so saith the 4th DCA:
“If an indispens[a]ble party to an action dies, ‘the action abates until the deceased party’s estate, or other appropriate legal representative, has been substituted pursuant to [R]ule 1.260(a)(1).'” Schaeffler, 38 So. 3d at 799 (quoting Cope v. Waugh, 627 So. 2d 136, 136 (Fla. 1st DCA 1993)). Moreover, the “[f]ailure to substitute the proper representative or guardian nullifies subsequent proceedings.” Id. at 800; see also Ballard v. Wood, 863 So. 2d 1246, 1249 (Fla. 5th DCA 2004) (finding that a failure to substitute pursuant to Rule 1.260(a)(1) nullified the subsequent proceedings). …
Here, Plaintiff initially complied with the procedures of Rule 1.260(a)(1) by contacting opposing counsel and requesting information regarding the opening of the decedent’s estate. See Vera v. Adeland, 881 So. 2d 707, 710 (Fla. 3d DCA 2004). Error occurred, however, when Plaintiff elected to actively continue the litigation, pursuant to his complaint filed against the fictitious “John Doe,” commenced when no estate had been opened and no personal representative appointed. See In re Marriage of Kirby, 280 So. 3d 98, 100 (Fla. 4th DCA 2019); Adeland, 881 So. 2d at 710 (“If no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted.”); see also Mattick v. Lisch, ––– So.3d ––––, 43 Fla. L. Weekly D2467 (Fla. 2d DCA Nov. 2, 2018). Proper procedure required the abatement of the proceedings until such time as a personal representative of the estate could be (and actually had been) substituted as party defendant and served with the complaint. See In re Marriage of Kirby, 280 So. 3d at 100.