How to Reopen Probate in Florida

You can reopen probate in Florida if additional assets are located, a new will found, a creditor entitled to notice was not paid, or for fraud.

How Does Probate in Florida End?

A probate in Florida will end upon the filing by the Personal Representative of a Petition for Discharge, Plan of Distribution, and Final Accounting, and the Court entering an Order of Discharge.  Any interested person may object to the Petition for Discharge, in which case a hearing might be held before the Order of Discharge is entered.  Indeed, the Court might agree that the Petition for Discharge or the Plan of Distribution should be altered prior to the close out of the estate.  Interested persons might be asked to sign a Waiver of Accounting and Consent to the Petition for Discharge – if all sign, the Court could enter the Order of Discharge in chambers or at a quick five-minute hearing.

In many probate estates, the Court will administratively close the estate.  In such a case, the Personal Representative is not discharged, but administration of the estate will be suspended.  Typically this happens when the estate is not closed by an initial deadline set by the Court – typically 12 months from the issuance of Letters of Administration.  In some situations, Personal Representatives die, become disabled, or lose interest. It is fairly common.

In a summary administration, the probate estate is never really opened or closed.  No Personal Representative is appointed.  Instead, any interested person, after providing notice to all other interested persons, asks the Court to issue an Order of Summary Administration, which retitles assets and directs third parties to deliver assets in their custody to the proper heirs.

How Do You Reopen a Florida Probate Estate After it is Closed?

Florida Statute 733.903 is the starting point to reopen an estate.

733.903 Subsequent administration.The final settlement of an estate and the discharge of the personal representative shall not prevent further administration. The order of discharge may not be revoked based upon the discovery of a will or later will.

Florida Probate Rule 5.460 sets forth how to petition the Court to reopen a closed Florida probate estate:

Rule 5.460. Subsequent Administration

(a) Petition. If, after an estate is closed, additional property of the decedent is discovered or if further administration of the estate is required for any other reason, any interested person may file a petition for further administration of the estate. The petition shall be filed in the same probate file as the original administration.

(b) Contents. The petition shall state:

(1) the name, address, and interest of the petitioner in the estate;

(2) the reason for further administration of the estate;

(3) the description, approximate value, and location of any asset not included among the assets of the prior administration; and

(4) a statement of the relief sought.

(c) Order. The court shall enter such orders as appropriate. Unless required, the court need not revoke the order of discharge, reissue letters, or require bond.

The 2018 case of Sims v. Barnard, 257 So.3d 630 (1st DCA 2018) explains how to reopen a Florida probate estate for fraud.  The estate administration lasted more than 10 years, with several personal representatives.  The final personal representative filed a final accounting, to which a beneficiary objected.  The Court overruled the objections and discharged the personal representative in 2015.  Two years later, the beneficiary sued the final personal representative for fraud and embezzlement.

The Court allowed, in theory, the lawsuit against the personal representative to proceed, under a modified res judicata concept:

Appellant correctly asserts that section 733.901 “does not serve as an absolute bar to the suits filed after the discharge of
the personal representative.” Van Dusen v. Southeast First Nat’l Bank of Miami, 478 So. 2d 82, 89 (Fla. 3d DCA 1985). The
statutory bar codifies “a modified res judicata concept . . .applicable in probate cases.” Id. at 91. The bar will not be applied to a suit for fraud by concealment, where its application “would permit a fiduciary to benefit from its alleged wrongful acts if it could conceal them for the statutory period.” Karpo v. Deitsch, 196 So. 2d 180, 181 (Fla. 3d DCA 1967) (holding that suit was not barred by discharge where suit alleged PR concealed from heirs the true value of estate and concealed from the court the identities of the heirs preventing heirs from asserting objection or claim prior to discharge). Likewise, where the PR conceals its intentional transfer of an estate asset by failing to report the distribution in the petition for distribution or otherwise, the PR “is not entitled to the sanctuary provided by” section 733.901. Van Dusen, 478 So. 2d at 91.

The Court dismissed the lawsuit because the beneficiary did not make the necessary showing to be allowed to proceed to reopen the Florida probate:

The record in this case fails to support any concealment of any estate asset or distribution from the court or from Appellant which prevented Appellant from raising his objection prior to the order of discharge so as to remove Appellant’s lawsuit from the application of section 733.901(2). In fact, the record amply demonstrates that Appellant did repeatedly but unavailingly raise his same objections and claims of mismanagement against the PR throughout the probate proceedings.

Can the Estate Be Reopened if a New Will is Discovered, But is Concealed?

Yes.  The case of Dean v. Bentley, 848 So. 2d 487 (Fla. Dist. Ct. App. 2003) involved a lawyer/personal representative who learned of a new will during probate administration, but nevertheless proceeded to close out the estate without notifying the court or the beneficiary of the new will.  In allowing the petitioner to reopen the Florida estate, the Court explained:

The appellants also argue that the estate should not have been reopened because a petition for revocation of probate must be brought before discharge, and Bentley did not file the petition for revocation until after the order of discharge was entered. Although sections 733.208 and 733.109, Florida Statutes, provide that a petition for revocation of probate should be filed before discharge, fraud is recognized as justification for reopening an estate, even after an order for discharge has been entered. Liechty v. Hall, 687 So. 2d 64, 65 (Fla. 5th DCA 1997); Padgett v. Padgett, 318 So. 2d 484, 485 (Fla. 1st DCA 1975). Also, Rule 1.540(b), Florida Rules of Civil Procedure provides that “[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: . . . . fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.”

Can You Reopen A Florida Probate Summary Administration?

Yes, including on the grounds that an heir was excluded from the original summary administration.  In Wallace v. Watkins, 253 So. 3d 1204 (5th DCA 2018), the decedent died in 1971.  In 2001, her two daughters obtained summary administration for a parcel of realty that the decedent owned.  Apparently, the decedent had adopted 3 of her grandchildren, who received no notice of the summary administration.  In 2016, the adopted children sought to reopen the summary administration under Section 735.206(g), which provides:

Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of summary administration and distribution may enforce all rights in appropriate proceedings against those who procured the order and, if successful, shall be awarded reasonable attorney’s fees as an element of costs.

In allowing the summary administration to be reopened, the Court was clear:

In their petition to reopen summary administration, Appellees specifically alleged that they were excluded from the original petition for summary administration although they were known heirs of the decedent.

The trial court somehow barred the reopening under Florida’s nonclaim statute, which is an absolute bar to creditor claims against an estate more than two years after death.  As explained by the appellate court, the nonclaim statute does not apply to the interests of a beneficiary seeking to reopen a Florida probate:

Florida’s nonclaim statute applies to claims brought against the estate by creditors. It does not apply to the beneficial interests of heirs. See In re Estate of Robertson, 520 So. 2d 99, 102 (Fla. 4th DCA 1988) (rejecting argument that nonclaim statute barred claim of heirship because such claims were “not the type of ‘claim’ contemplated” by nonclaim statute).

 

Pinellas County (Clearwater)

Matthew Weidner

Orange County (Orlando)

Philip W. Gunthert

Broward County (Ft. Lauderdale)

Natasha M. Dalton

Hillsborough County (Tampa)

R. Todd Burbine

Sarasota County

Dawn Bates-Buchanan

Lee County (Ft. Myers)

Scott Kuhn

Duval County (Jacksonville)

Long H. Duong

Complete Guide to Florida Probate

Opening the Probate Estate / Initial Steps
Payment of Creditors, Expenses And Beneficiaries
Florida Spousal and Family Rights
Closing the Probate Estate
Probate Litigation and Will Contests
Florida Probate Quick Guides

Complete Guide to Florida Probate

Opening the Probate Estate - Initial Steps
Payment of Creditors, Expenses And Beneficiaries
Florida Spousal and Family Rights