The probate court cannot prematurely discharge a personal representative, but must allow for the statutory time for objections to be filed with the court
April 20, 2022
Florida Probate Rule 5.400, entitled “Distribution and Discharge”, requires a personal representative to file a final accounting and a petition for discharge, together with a plan of distribution. This is filed once the personal representative has completed their administration process and are about to distribute the last remaining assets. One of the items which is also part of the petition for discharge is listing the compensation paid or proposed to be paid. Many times a beneficiary will know what this is and will sign a waiver of any final accounting or hearing on the petition for discharge, however sometimes a beneficiary will not do so.
A beneficiary can object to a petition for discharge.
Florida Probate Rule 5.400 requires that any objection to the compensation paid or proposed to be paid, or the proposed distribution of assets must be filed within 30 days from the service of the last of the Petition for Discharge or the Final Accounting. Then, a beneficiary then has 90 days from the filing of the objection to serve a notice of hearing on the objection, or the objection is deemed abandoned and the personal representative can proceed with seeking their order of discharge from the probate court.
These deadlines to object to a petition for discharge are strictly construed, as the Second District Court of Appeal explained in their opinion in In re Estate of Unanue, 235 So. 3d 1006 (Fla. 2d DCA 2017).
In that case, the order of discharge was entered 18 days after the final accounting and petition for discharge were filed. The petition for discharge and final accounting were served upon the beneficiaries, who then filed timely objections to the petition for discharge and final accounting, but by that date the estate had been closed already by the probate court.
On appeal, the beneficiaries sought reversal of the order of discharge because it was prematurely entered, because the entry order of discharge and then subsequent closing of the estate essentially foreclosed their right to object to the accounting.
The appellate court agreed with the beneficiaries and cited Fla. Prob. R. 5.400(b)(6). This rule provides, in relevant part, that “any objections to the accounting, the compensation paid or proposed to be paid, or the proposed distribution of assets must be filed within 30 days from the date of service of the last of the petition for discharge or final accounting.” In this instance, the probate judge entered the order discharging the co-personal representatives prior to the expiration of the time allowed for objections, thereby cutting off the rights of the beneficiaries and did not allow for consideration of what was actually a timely-filed objection to the final accounting. Therefore the probate court’s order was reversed.
It is important to note the shortened time frames set forth in Florida’s Probate Rules, this being one of those instances where beneficiaries’ rights to be considered were cut off due to the premature entry of the order of discharge. If there are questions on the probate process and on the proper procedure of seeking discharge of a personal representative, or in objecting to a final accounting and petition for discharge, you should consult with your trusted probate lawyer.