You Can’t Dilly Dally On Your Way To Probate Court

 

The time limits in probate cases can be unforgivingly short.  For example, you must object to the personal representative’s accounting within thirty (30) days and set a hearing on your objection within ninety (90) days. A recent post in the Florida Probate & Trust Litigation Blog illustrates how true that is.

The issue in the case reported on, which was an opinion from the Third District Court of Appeal, was whether the three (3) month statute of limitations in Florida Statute section 733.212(3) applied to a motion to disqualify a personal representative.  The Third District Court of Appeal held that it did apply.  Consequently, a motion to disqualify filed more than three (3) months after the service of a notice of administration on the party seeking disqualification is barred.  What makes this case interesting is that it directly conflicts with a decision of the First District Court of Appeal, as certified by the Third District Court of Appeal.  The First DCA had held that the statute of limitations under Florida Statute section 733.212(3) did not apply to a motion to disqualify a non-resident personal representative.

The lesson of Hill v. Davis is that you cannot take your time when it comes to any potential claims or rights involving a deceased person or estate.  Most of the time limits are much shorter than in other litigation.  All claims against a decedent are barred two (2) years after the date of death.  Absent the granting of an extension of time, a claim may also be barred three (3) months from the first date of the publication of the notice to creditors.

While Hill v. Davis is a good example of the short time limits involved in probate litigation for lawyers and clients alike, the two cases together are good examples of why lawyers cannot always tell their clients what “the law” is. Trial courts are bound to follow the decisions of appellate courts in Florida.  Before the Third DCAs opinion was issued, a trial court in any of the DCAs was bound to follow the reasoning and opinion of the First DCA.  But now a trial court located in the First DCA must follow the opinion in Angelus v. Pass while a trial court in the Third DCA must follow Hill v. Davis.  This is true even if the judge thinks that the opinion of the other DCA is the more well reasoned and convincing opinion.  But what about a trial court in one of the other three (3) DCAs?  Trial courts in those three (3) DCAs are free to follow whichever opinion they think is the better one.  Yet another DCA may have a similar case before it and may try to reconcile the two cases, follow one of the two cases, or come up with yet another approach.  Eventually the Florida Supreme Court will resolve the conflict between the DCAs and its decision will become the law.  At least until a lower court distinguishes the Supreme Court’s opinion in a similar case or the waters are otherwise muddied.

Is it any wonder then that when a client consults a lawyer and asks “What is the law on this?”  that the lawyer scratches her head and says, “Well, I’ll have to do some research.”?  And later reports that “the law is unclear” or “conflicting.”  Add to that the fact that every litigated case has its own unique facts and it can be very difficult to predict the outcome of any case.

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