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Formal Notice Required to Review Attorney Compensation

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Fundamental to our legal system is the concept of procedural due process — before any order can be rendered affecting a person’s rights, that person must be given notice and an opportunity to be heard.  In civil cases, the summons and complaint are the implements of serving process and meeting this notice requirement.  In probate matters, things have been historically less clear.  However, a recent opinion by Florida’s Fourth District Court of Appeals clarifies that formal notice has to be served on an attorney for the personal representative to review the attorney’s compensation.
Adversarial probate proceedings differ from traditional civil litigation in that the parties to a probate dispute are usually seeking resolution of some issue involving assets of the estate.  In most instances, the probate court has taken jurisdiction over the estate and the individuals who come to court are seeking a determination as to their rights in the probate estate.  Because it is the corpus of probate assets which is actually at issue in these disputes, we say that these probate proceedings are in rem proceedings; that is, they affect an interest in property. 
In some instances, however, individuals involved in a probate matter seek relief against a person for a legal wrong.  One example is an action for surcharge.  Surcharge is an action against a fiduciary — in the context of probate, a personal representative — for payment of damages from the fiduciary’s own funds to beneficiaries as a result of breach of fiduciary duty (notably, an action for surcharge can also be pursued against the attorney for a fiduciary).  Because surcharge damages are paid by from the fiduciary’s own funds and not from probate funds, the fiduciary is exposed to personal liability and must be sued in his/her individual capacity.
What emerges is a dichotomy of probate litigation wherein some proceedings appear to be in rem in nature.  For these matters, personal jurisdiction over the interested parties is not necessarily required.  This is important where, for instance, the beneficiaries are not located in Florida and have no relation to the state beyond their beneficial interest in the estate.  On the other hand, where an action is brought against a person in his/her individual capacity and where that individual is exposed to personal liability, personal jurisdiction over that individual is required.  How one acquires personal jurisdiction in a probate matter was recently at issue before our Fourth District Court of Appeals.
In Simmons v. Baranowitz, (4th DCA 2015) the Fourth District Court of Appeals reversed the probate trial court’s imposition of damages for surcharge against a personal representative’s attorney on grounds that the trial court lacked personal jurisdiction.  The Fourth District noted that the nature of a surcharge action is such that the remedy is being sought against the individual.  Because relief is being sought against the individual and not from the corpus of probate assets, the court must have personal jurisdiction over the person being sued.  In a probate matter the Simmons Court explained, formal notice is required to confer personal jurisdiction over an individual.  The Court suggested that the filing of documents on behalf of the personal representative and receipt of a fee did not suffice to confer jurisdiction on the attorney in his individual capacity.  The surcharge proceeding, the Fourth District explained, was essentially a new action against an individual who had not previously been a party to any matter.  Because that attorney was not given proper notice of the surcharge proceeding against him, the trial court did not have the requisite jurisdiction to order the attorney to pay damages. 
The appellate court ruled that a special kind of notice, called formal notice, should have been given to the attorney for the personal representative.  Formal notice needs to be served on the attorney for the personal representative to challenge the compensation (Attorney fees) paid to the attorney for the estate. 

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