New Rule Effective January 1, 2012 Clarifies What Orders Can Be Appealed in Probate and Guardianship Litigation
Florida Rule of Appellate Procedure 9.110(a)(2) currently governs what orders can be appealed in probate and guardianship litigation and authorizes appeals of "orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined by the Florida Probate Code."
Determining if a right or obligation of an interested person has been finally determined is often a confusing undertaking and has been the subject of much debate by attorneys and jurists. See In re Estate of Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991).
However, on January 1, 2012, a new Florida Rule of Appellate Procedure – Rule 9.170 – will govern appeals in probate and guardianship litigation. Rule 9.170 provides detailed guidance as to whether or not an order is one that finally determines a right or obligation of an interested person, listing 24 types of appealable orders in probate and guardianship matters.
Pursuant to Rule 9.170(b) orders that finally determine a right or obligation include, but are not limited to, orders that:
(1) determine a petition or motion to revoke letters of administration or letters of guardianship;
(2) determine a petition or motion to revoke probate of a will;
(3) determine a petition for probate of a lost or destroyed will;
(4) grant or deny a petition for administration pursuant to section 733.2123, Florida Statutes;
(5) grant heirship, succession, entitlement, or determine the persons to whom distribution should be made;
(6) remove or refuse to remove a fiduciary;
(7) refuse to appoint a personal representative or guardian;
(8) determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward;
(9) determine a motion or petition to restore capacity or rights of a ward;
(10) determine a petition to approve the settlement of minors' claims;
(11) determine apportionment or contribution of estate taxes;
(12) determine an estate's interest in any property;
(13) determine exempt property, family allowance, or the homestead status of real property;
(14) authorize or confirm a sale of real or personal property by a personal representative;
(15) make distributions to any beneficiary;
(16) determine amount and order contribution in satisfaction of elective share;
(17) determine a motion or petition for enlargement of time to file a claim against an estate;
(18) determine a motion or petition to strike an objection to a claim against an estate;
(19) determine a motion or petition to extend the time to file an objection to a claim against an estate;
(20) determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate;
(21) settle an account of a personal representative, guardian, or other fiduciary;
(22) discharge a fiduciary or the fiduciary's surety;
(23) award attorneys' fees or costs; or
(24) approve a settlement agreement on any of the matters listed above in (1)-(23) or authorizing a compromise pursuant to section 733.708, Florida Statutes.
With the implementation of Rule 9.170, it will be easier to determine — and less subject to debate — whether or not an order is appealable in probate and guardianship matters. Keep in mind that the list in Rule 9.170(b) is not exhaustive, and therefore orders not listed could still qualify as appealable orders that finally determine a right or obligation of an interested person.
