Reopening a Florida Probate
April 15, 2019
Can a Florida Estate Be Reopened After Probate?
Just because a probate in Florida has been closed by a court, this does not mean that it cannot be reopened. Indeed, public policy favors finality and the closing of estates. A non-contested estate is supposed to be closed within 12 months from the issuance of letters of administration. However, if probate assets are subsequently located after closure, a probate can be reopened to distribute those. SeeFla. Prob. R. 5.460. Typically, in Florida, an estate would be reopened after the discharge of the personal representative when there were procedural irregularities or there are facts which constitute fraud or bad faith.
The Fifth District Court of Appeal explained this concept. In Dean v. Bentley, 848 So. 2d 487 (Fla. 5thDCA 2003), the trial court’s decision to reopen the probate was affirmed on appeal, when a different will was brought before the Court, before the probate was closed, and which will changed the dispositive provisions for distribution of the estate. The appellate court stated that the failure to bring the will to the attention of the trial court and the misstatement of fact was, among other things, a violation of the of a personal representative. The appellate court then quoted the trial court:
Once he became aware of the 1999 will, under the specific undisputed facts of this case, he had to provide notice of the petition of discharge to the beneficiary under the subsequent will, especially when the subsequent will materially and completely changed the prior distribution plan, prior to seeking the discharge and of equal importance, was obligated to make the court specifically aware of the existence of […] to allow the court to make a reasoned and informed decision as to what, if anything, needed to be done regarding […].(emphasis omitted).
Difficulties sometimes arise when a pro se (unrepresented) party attempts to have a probate estate reopened.
InBetancourt v. Estate of Misdraji, 13 So. 3d 489 (Fla. 3d DCA 2009), a pro se individual, a daughter of the decedent, sought to reopen her mother’s probate. The estate had been closed in 2004, after the personal representative had been discharged. The pro se daughter objected to the closing a month later, and her objections were subsequently denied. Ten months later, this pro se daughter petitioned the probate court for subsequent administration, seeking to reopen the probate estate. The probate judge held a status conference. There was no consensus among the decedent’s 5 children on the reopening, and the probate judge declined to reopen the estate in 2007. The pro se daughter tried again to reopen the estate in 2008, and the court denied that request just 5 days later. The appellate court finally heard this matter and determined that the pro se daughter could not reopen her late mother’s estate, stating that “the probate judge has been patient and gracious, but [she] must now realize that her claims, objections, petitions, grievances, and correspondence to the court regarding her late mother’s estate must stop. Those issues have been adjudicated and may not be asserted successively.”
What if a later will is discovered after the probate estate has been properly closed? Florida Statute 733.903 provides that once a probate matter is closed by order of discharge, it cannot be reopened later if a valid will is discovered, even if it has different dispositive provisions. Particularly, this statute states “the order of discharge may not be revoked based upon the discovery of a will or later will.”
What if an heir is left out of the original probate proceeding? The relatively recent Fifth District Court of Appeal opinion, Wallace v. Watkins, — So. 3d —, 2018 WL 3946062 (Fla. 5thDCA 2018), discussed an issue with real property being handed down to family members informally and without probate having been opened to appropriately address property title issues. In this case, the decedent died in 1971, and 29 years later – in 2001 – her two daughters initiated a summary administration for a piece of real property which the decedent had owned at the time of her death. But, during her lifetime, in 1963, the decedent had adopted 3 of her grandchildren and they did not receive any notice of these probate proceedings nor did they receive a share of this real property. In 2016, these 3 adopted children sought to reopen the probate estate, citing Fla. Stat. 735.206(g), seeking to enforce their rights against those who procured the order.
Somehow the proceedings went awry because the argument was made that the petition to reopen was time barred by the statute of nonclaim – which deals with creditor claims and not excluded heirs. The Fifth District Court of Appeal held that the claims were not time barred as creditor claims, but just affirmed the trial court’s order reopening the estate. Florida’s nonclaim statute, Fla. Stat. 733.710(1) only applies to claims brought against the estate by creditors, and does not apply to the beneficial interests of heirs. Further, Fla. Stat. 735.206, the summary administration statute, differentiates between creditor claims and interests of heirs, and the Court found that the summary administration nonclaim provisions bars only claims against a decedent, and not actions by heirs seeking to enforce their rights to an estate when left out of the summary administration.
Is a personal representative completely relieved of liability when an estate is closed and the order of discharge is entered? While you might hope so, the more accurate answer is not necessarily – there are exceptions where a personal representative can still be found liable for acts during his or her fiduciary tenure. The First District Court of Appeal recently issued its opinion in Sims v. Barnard, — So. 3d —, 2018 WL 5796936 (Fla. 1stDCA 2018) on this. The Simsprobate lasted for over 10 years and had multiple personal representatives and a pro se litigant. The final personal representative was an attorney. Objections to his final accounting were filed, yet in 2015, the probate judge overruled those objections and discharged the personal representative. Two years later, the personal representative was sued for fraud and embezzlement.
TheSims court explained that there is no absolute bar under Fla. Stat. 733.901 to suits against a personal representative after discharge. If there were, a fiduciary could benefit from wrongful acts if he or she could conceal them for the duration of the statutory period, such as the concealment of an intentional transfer of an estate asset by failing to report it in the petition for distribution of the estate. When the trial court looked at the case from this standpoint, of fraud and concealment, the claims ultimately failed, because certain interim accountings were ultimately provided and this did not rise to a level of “concealment” by the personal representative.
If you have questions regarding reopening a Florida probate matter, you should seek counsel from an experienced probate lawyer.