Appeals in Probate Cases
May 28, 2019
Rule 9.170 of the Florida Rules of Appellate Procedure provides a non-exclusive list of the types of orders that can be appealed from in probate cases. This Rule was recently examined by the Third District Court of Appeal, in the decision made in Maercks v. Maercks, on April 3, 2019.
In Maercks, the decedent executed a will that was admitted to probate. She also executed a second document regarding distribution of her assets. One of her children was appointed as the personal representative of the estate, and she sought to have the second document admitted as a codicil even though it was not initially brought before the probate court.
The trial court admitted the document as a codicil, but was very specific in its order, stating that it did not make any rulings of fact or law as it applied to the content of the codicil, and that any arguments on the effect of the codicil would need to be further litigated. The trial court also specifically stated that it was just admitting the document to probate.
One of the three beneficiaries (another child of the decedent) appealed the order, and the personal representative sought to dismiss the appeal for lack of jurisdiction.
The Third District agreed, and dismissed the appeal. The Third District determined that the order under review did not finally determine a right of an interested person, but rather admitted the codicil to probate and specifically contemplated further litigation on the effect of the codicil.
The Third District analyzed the arguments presented under Rule 9.170, and determined that each of these arguments also failed. The order did not determine any petition or motion to revoke probate under Rule 9.170(b)(2) and indeed no such petition or motion was filed. The admission of the codicil to probate did not rule on any estate’s interest in any property, and the legal effect of the codicil was to be determined after the parties litigated the issues; hence the argument under Rule 9.170(b)(12) also failed. Finally, the order plainly stated that it did not rule or overrule any other issues in the probate case, so the argument under Rule 9.170(b)(13) that it determined any exempt property, family allowance, or homestead status of real property also failed.
Because there are more than 20 non-exclusive kinds of orders that can be appealed in a probate case pursuant to this rule, it is prudent to speak with an experienced trust and estate attorney who understands these appellate nuances as well, who can guide you on the appealability of a probate court’s order.