A caveat, authorized under Florida law, is filed with the court by a creditor or interested person to ensure that the creditor or interested person has an opportunity to object to the will and receive notice of probate proceedings. The probate rules provide specific items contained in a caveat. What happens if the caveat is not in strict compliance with the probate rule?
Herminia M. Quinones (“Decedent”) passed away on August 12, 2011 and the probate court entered an order admitting her will to probate in 2016 and appointed Irene Simpson (“Simpson”) as personal representative.
Mr. Crescenzo (“Crescenzo”), who owned a half interest in the sole asset, a piece of real estate in Hillsborough County, through his attorney, filed a pleading, the “Answer and Affirmative Defenses to Petition for Administration” (the “Answer”). The Answer identified the correct case number and set forth allegations that Crescenzo disputed the entry of the order and the appointment of Simpson as PR. Crescenzo alleged the will was procured through fraud and undue influence.
The lower court admitted the will to probate and appointed Ms. Simpson as PR, stating that, because Crescenzo challenge was not contained in a caveat under the probate rules, the court did not have to decide that challenge.
The Second District of Appeal disagreed and held that the Answer was the functional equivalent of a caveat and reversed. The law provides that if a caveat is filed by an interested person other than a creditor the court may NOT admit a will of the decedent to probate or appoint a personal representative UNTIL formal notice is made to the caveator and there is an opportunity participate in proceedings to the petition.
The court compared the Answer with the caveat terms and stated that they were “quite comfortable under the circumstances of this case…” and concluded “that the pleading he filed was the functional equivalent of the form of caveat the rule contemplates”. Thus, the court reversed and remanded to the lower court to vacate the order admitting the Decedent’s will to probate and appointing Simpson as PR.
ADVICE: The attorney who filed this Answer was probably relieved that the court found in his client’s favor but how much in legal fees were incurred to get to that point? Follow the probate rule.
WORD OF THE WEEK: Non claim statute is a statue that sets a time for a creditor bringing an action against an estate. It is different from a statute of limitations in that it is not subject to to waiver or tolling. The non claim periodfor creditors in Florida is 2 years.
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