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What is an “adversary proceeding” in Florida probate?

| Jul 3, 2018 | Probate |

In Florida probate, certain types of disputes are considered adversary proceedings. This designation has several implications, including that fact that the Florida Rules of Civil Procedure apply. In effect, an adversary proceeding proceeds as if it were a civil lawsuit within the probate. In particular, the parties can conduct discovery, including Requests for Production of Documents, Interrogatories, and taking depositions.

Formal probate in Florida is the court administered process where a deceased person’s estate is administered and distributed. From start to finish, formal probate usually follows certain steps. An adversary proceeding differs from the formal probate administration in that it involves disputes which are within but in addition to the administration itself. Usually an adversary proceeding involves a dispute which is related to and impacts the formal administration. In many cases, the probate administration cannot run its course until the dispute is resolved.

So how does a dispute in probate become an adversary proceeding? Certain types of proceedings are automatically considered adversary under applicable probate rules. Rule 5.025(a) of the Florida Probate Rules designates the following as adversary proceedings:

· proceedings to remove a personal representative,

· surcharge a personal representative

· remove a guardian

· surcharge a guardian

· probate a lost or destroyed will or later-discovered will

· determine beneficiaries

· construe a will

· reform a will

· modify a will

· cancel a devise

· partition property for the purposes of distribution

· determine pretermitted status

· determine pretermitted share

· determine amount of elective share and contribution

· for revocation of probate of a will.

Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary. If served by the petitioner, the declaration must be served with the petition to which it relates. If served by the respondent, the declaration and a written response to the petition must be served at the earlier of twenty days after service of the petition, or prior to the hearing date on the petition. The declaration must be must served by formal notice.

After service of formal notice, the proceedings, as nearly as practicable, must be conducted similar to suits of a civil nature, including entry of defaults.

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