To sue an estate, there needs to be a personal representative.  An “estate” cannot be a party to a lawsuit.  This concept was again explained by the Court in the recent decision of De La Riva v. Chaves, — So. 3d —, 2020 WL 532283 (Fla. 4thDCA Sept. 9, 2020).  In De La Riva, the Fourth District Court of Appeal explained that, when 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 other words, there is no such thing as a separate legal entity known as an “estate”, rather, to sue, get paid from, transfer property to or from, or otherwise involve a decedent’s property or assets, there needs to be a court-appointed personal representative.

In De La Riva, the delay in appointment of a personal representative led the Plaintiff’s counsel to amend his complaint to name “John Doe” as the personal representative of the estate. Doing this essentially “nullified the subsequent proceedings,” including the Plaintiff’s proposal for settlement pursuant to Fla. Stat. §768.79.  The Court explained:

“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).

The Fourth District Court of Appeal further explained:

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.

Not only was the proposal for settlement in violation of the party substitution rules, but further error was made by Plaintiff’s counsel in this case when he failed to follow the applicable and strict requirements on timing of service.  Because the proposal also violated the timing requirements, the proposal was deemed invalid and could not serve as a basis for an attorney fee award.

In short, proper substitution of parties must be made, and suit upon an “estate” is improper.  In addition, the strict and mandatory requirements for service of any proposal for settlement must be complied with, or same will be invalid.  Any questions on these strict requirements should be directed to your experienced estates and trusts lawyer.