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Costs in Probate Litigation – Rule 5.025(d)(2)

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Under the “American” rule of litigation, in most cases, each side pays their own attorney fees, no matter who wins or loses. “Costs,” on the other hand, are typically paid by the loser of the case to the winner. Costs in probate litigation generally follow this rule. These costs do not include attorney fees, but can include the cost of deposition and trial transcripts. If the litigation involved the use of expert witnesses, the costs of the experts can be paid as a cost – and experts who testify in litigation are typically very expense. So the rules governing the payment of costs are important, including the deadlines.

In Stone_v._Stone, (4th DCA 2014) the court ruled on the time for filing a motion for costs in probate litigation, holding that the standard 30 day deadline for civil litigation does not apply in the context of probate litigation. In a civil cases, the deadline to file a motion for attorney’s fees and costs is 30 days after entry of final judgment. The 30 day deadline is set forth by Florida Rule of Civil Procedure 1.525, which states that:

[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment … which judgment or notice concludes the action as to that party.

Rule 1.525 often does not make sense in the context of probate litigation, where many different orders, judgments, and remedies are entered, and the proceedings are usually ongoing even if certain rights have already been determined. To address the continuing nature of probate litigation, the Florida legislature enacted Florida Probate Rule 5.025(d)(2) which states:

adversary probate proceedings, as nearly as practicable, must be conducted similar to suits of a civil nature, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.

Under the plain language of Rule 5.025(d)(2), the 30 day deadline does not apply in adversary probate proceedings. In Stone v. Stone, the Florida probate court incorrectly ruled that the 30 day deadline did apply, and struck Nancy Stone’s motion for costs. The Florida appellate court reversed because, under the plain language of Florida Probate Rule 5.025, Florida Civil Procedure Rule 1.525 did not apply to Nancy’s motion for costs in probate litigation.

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