Priority in Florida Probate – First to File

Florida is well-known for having a population of “snowbirds” — people who spend their winters in Florida and their summers up north.  What happens when a snowbird passes away?  Which state did the snowbird reside in?  Where should the snowbird’s estate be probated?  While the answers are dependent on the facts of each case, if competing petitions to administer an estate are filed in two different states, the principal of priority in Florida probate comes into play.

The Florida Fourth District Court of Appeal recently addressed the issue of priority in Florida probate in Perelman v. Perelman (4th DCA 2013).

Priority In Florida Probate – The Timeline in the Perelman Case

Ruth Perelman died on July 31, 2011, survived by her husband Raymond and their son, Jeffrey.  Ruth split her time between Florida and Pennsylvania.  After Ruth’s death, a dispute arose between Raymond and Jeffrey as to what state she was domiciled in and where her estate should be probated.  Here is how the case unfolded:

August 11, 2011:   Jeffrey filed a petition for probate in Pennsylvania, seeking to probate Ruth’s 2010 will.

August 12, 2011: The Pennsylvania Register of Wills sent Raymond’s counsel a letter notifying counsel of the petition and explaining that if no formal caveat was filed within ten days the 2010 Will would be probated without further notice.

August 24, 2011: Raymond filed a Petition for Administration in Florida, seeking to probate an earlier will.

In September 2011, Jeffrey moved to stay the Florida probate filed by Raymond.  Jeffrey argued that the Florida probate should be stayed because probate was first sought in Pennsylvania.  The Florida probate court denied Jeffrey’s motion to stay. The Florida probate proceeded to trial and a final judgment was entered in 2013.  Jeffrey appealed the Florida final judgment and challenged the Florida probate court’s refusal to stay the case.

The Florida appellate court reversed the Florida final judgment, holding that the Florida probate court should have stayed the Florida probate under the principle of priority.  Under the principle of priority, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with the case.  The Florida appellate court concluded that Pennsylvania first exercised its jurisdiction on August 12, 2011, 12 days before Raymond filed his petition for administration in Florida, when the Pennsylvania court sent notice to Raymond’s counsel indicating that Ruth’s 2010 Will would be probated in Pennsylvania if no formal caveat was filed.

The lesson here is that if you anticipate a dispute over Decedent’s state of residence, make sure you file first.  Even though Raymond won the initial battle and litigated the estate in Florida, he ultimately lost the war when the Florida appellate court reversed the Florida probate final judgment.

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