Formal Notice… Case Shows Why You Don’t Leave A Summary Administration Without It!

For decedents whose assets (not including assets exempt from creditor claims) are under $75,000  or for decedents who have been deceased for more than 2 years, a shortened probate proceeding, a summary administration, may be available. Florida law requires certain notices and joinders in the petition for summary administration

A recent case, Rosalie Wolf v. Jo Ann Doll,  confirms how improper notice can affect a probate proceeding. Decedent had 2 friends and apparently no family. Rosalie Wolf (“Wolf”) was the daughter of an individual who,  she stated, was best friends with the decedent. Jo Ann Doll (“Doll”) was the property manager at the condo where the decedent lived.

Originally,  decedent created a revocable trust, transferred her condo into the name of the trust and made Wolf a beneficiary of such trust. After decedent fell and fractured her hip, she changed her trust and made Doll the beneficiary of such trust and also made her the agent under her power of attorney.

After decedent’s death, Doll filed a summary administration to transfer some jewelry and other assets to the trust and then, ultimately, to Doll. Doll alleged that Wolf knew about the summary administration. Doll’s petition for summary administration included a certificate of service which indicated that Wolf was served with a copy of the petition. Unfortunately, the certificate of service did not indicate the manner of service, formal notice or informal notice.

Wolf filed a civil action against Doll alleging tortious interference with expectancy, a constructive trust and conversion.  The lower court granted summary judgment in favor of Doll and determined that Wolf was  aware of the probate summary administration proceeding. She did not contest the validity of the Last Will and Testament or the Trust.  Thus, as she had actual knowledge of the summary administration, she was prohibited from collaterally attacking the order of summary administration.

The appellate court determined that, under Florida law, “formal notice of the petition must be served on a beneficiary, not joining in the petition”.  The Probate Code specifically defines formal notice and the Probate Rule provides how formal notice is accomplished. Even though Wolf may have had actual knowledge of the proceeding, the appellate court determined that she never actually received formal notice as the certificate of service did not indicate the manner of service. Further, in an earlier case, where “statutory notice had not been furnished, actual notice of the filing of a will for probate is not sufficient…the reason being that the written notice puts the interested person on notice of the time limitations for him to act.”

The court then reversed the summary final judgment and determined that Wolf’s collateral claims were not barred.

What is interesting to this author is that the court referenced the statute that requires formal notice on a beneficiary. As Wolf was not a beneficiary (at least pursuant to the filed documents), how can it be said that she was required to get formal notice? Would informal notice suffice? Probably not,  as the contesting “disinherited” beneficiary would not have received the formal notice which includes the time limitations to object.

ADVICE: Be sure that, when necessary, the proper parties receive formal notice if you want to bar any action against the estate. Be sure your staff understand that the certificate of service must be CLEAR as to the manner of service. Further, if there are individuals that COULD bring an action because of recent changes in the will and/or trust, then consider whether to formally notice those individuals so that any claim or cause of action is addressed up front and not years later. Understand that “formal notice” is a document which states the time period in which certain actions must be made. SERVICE of the formal notice must be made in certain ways to ensure receipt of the formal notice document. Many individuals confuse these terms so carefully read the Florida statute.

WORD OF THE WEEK: Tortious interference with expectancy  is a cause of action which allows a claim for damages against a defendant who wrongfully interferes with the plaintiff’s contractual or business relationships. The plaintiff must proved that the decedent has a fixed intention to leave a portion of his or her estate to the plaintiff and there is a strong probability that the decedent would have carried out his or her intention but for the wrongful acts of the defendant  whose interference must have been intentional.


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