Probate, trust, guardianship and inheritance litigation
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Formal Notice in Florida Probate – Failure to Respond Cannot Lead to Default

By:  Jeffrey Skatoff, Esq.

Florida probate procedure provides for the concept of formal notice.  Any person involved in a probate can serve other interested persons with a pleading or motion, and serve it via formal notice, pursuant to Florida Probate Rule 5.040, as follows:

When formal notice is given, a copy of the pleading or motion shall be served on interested persons, together with a notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice * * * and to file the original of the written defenses with the clerk of the court * * * and notifying the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded in the pleading or motion, without further notice. 

In Walker v. Bailey, (5th DCA 2012), Florida’s Fifth District Court of Appeals reversed an attempt to default a litigant who did not respond to a formal notice.  A minor child died.  The mother was appointed personal representative of the estate and filed a wrongful death suit.  After settling, the mother petitioned the probate court for an equitable distribution of the settlement proceeds under Florida’s Wrongful Death Act.  The mother’s attorney provided the petition for equitable distribution to the father with formal notice, and advised the father that a hearing would be held on the matter.  

After 20 days elapsed, the trial judge entered an order apportioning 100% of the wrongful death proceeds to the mother, and the mother notified the father that the hearing on the matter would be cancelled.  The appellate court held that the failure to allow the father to be heard on the matter violated his due process rights.  The court also explained the operation of the formal notice rule, as follows:

Ms. Bailey argues that Mr. Walker was afforded due process because he was given notice pursuant to Florida Probate Rule 5.040 and failed to timely respond. This view misperceives the rule’s scope.  Rule 5.040 provides that when formal notice is given, the failure to serve written defenses within twenty days permits the trial court to enter a judgment or order for the relief demanded in the pleading or motion without further notice. Fla. Prob. R. 5.040(a)(1) (emphasis added). Ms. Bailey’s petition does not set forth a specific apportionment plan beyond asking for a “majority” of the proceeds and certainly failed to inform Mr. Walker that she sought all of the settlement proceeds. Under these circumstances, Mr. Walker had a right to rely on the notice scheduling a hearing on Ms. Bailey’s petition, and was not required to file an answer or any defensive pleading or paper. The rule does not provide for the entry of a default against a party who fails to respond. The Florida Bar, Litigation under Florida Probate Code § 1.8 (2010-11 ed.).

In reversing the trial court’s ruling, the appellate court summed up its reasoning as follows:

Here, the probate court apportioned the settlement entirely to Ms. Bailey without a hearing and without considering any evidence.  This procedure denied Mr. Walker due process.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

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