Timing is Everything
May 19, 2022
Rasor v. Estate of Rasor, — So. 3d —, 2022 WL 945667, 47 Fla. L. Weekly D759 (Fla. March 30, 2022)
Timing really is everything, as the Fourth District explained in its recent opinion in the Rasor v. Estate of Rasor decision of March 30, 2022. In this case, Edward Rasor’s surviving spouse, Virginia Rasor, petitioned to establish and probate Edward’s lost or destroyed will on October 27, 2017. She alleged that Edward’s son, Gregg Rasor, was qualified to serve as the personal representative of Edward’s estate. That very same day, she also filed an “Election to Take Elective Share” of Edward’s estate. She also filed a “Notice of Election to Take Elective Share.” She served both documents on Gregg and his siblings. Virginia died 4 months after Edward.
Months later, Gregg petitioned for administration of Edward’s estate. On April 23, 2018, the circuit court admitted the will to probate and appointed Gregg as the personal representative of Edward’s estate.
A little over a year later, on May 11, 2018, Gregg filed both the notice of administration and Virginia’s notice to take elective share. That same day, he also filed proof of service of these documents on himself, individually as an interested person, and on his siblings as well. Then, twenty days later, Gregg objected to Virginia’s election to take an elective share, and his siblings adopted the objection.
The timing of Gregg’s objection was the issue for the appellate court.
Based upon Rule 5.360, the Personal Representative has 20 days to serve on the interested persons the election to take an elective share within 20 days of receipt, and then the interested persons may file an objection within 20 days after the personal representative has served them with the notice of election.
At the time Gregg acknowledged receipt of Virginia’s election on November 9, 2017, he has not yet been appointed as personal representative. The clock therefore did not start to run. Gregg was not appointed as personal representative till approximately 6 months later. He acted when he was appointed, notified the interested persons under the Rules, and then objected – in his individual capacity – within the 20 days of service of the notice. The Fourth District Court of Appeal concluded that Greg had timely filed his objection and reversed the probate court’s order that stuck his objection.
If you are faced with issues of timely filing of any document in the probate court, it is imperative to consult with your trusted probate lawyer.