Probate, trust, guardianship and inheritance litigation
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Standing In Probate Litigation

By:  Jeffrey Skatoff, Esq.

The concept of standing in probate litigation is relevant in several contexts. 

Who Has Standing In Probate Litigation?

In litigation over the validity of a will, anyone affected by the outcome has standing to participate in the litigation.  This would include named beneficiaries of the last will and any prior will offered for probate.  It would also include the intestate heirs of the deceased if any argument can be advanced that the estate should pass by the laws governing intestacy (no will).  

A surviving spouse will always have standing in any probate litigation involving the validity of a will. 

Does a Personal Representative Of A Prior Will Have Standing?

Whether the personal representative of a prior will has standing to contest a more recent will has been the subject of litigation in Florida.  In Wheeler v. Powers, 972 So. 2d 285, 287 (Fla. Dist. Ct. App. 5th Dist. 2008), the court explained: 

Mr. Wheeler’s standing as an alternate personal representative turns on whether he is an “interested person.” The Probate Code defines “interested person” as follows:

“Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. . . . The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

§ 731.201(21), Fla. Stat. (2003).

The statute clearly defines “interested person” to include the  personal representative of an estate. This definition has been expanded to include a nominated personal representative under a previous will.  Engelberg v. Birnbaum, 580 So. 2d 828 (Fla. 4th DCA 1991). The statute does not require that the person be an heir or represent an heir but only that the person “may reasonably be expected to be affected by the outcome of the particular proceeding involved.” § 731.201(21).

Standing of Personal Representative In Litigation Against The Estate

In litigation by or against the probate estate, the personal representative always has standing, because litigation for or against the estate must be brought in the name of the personal representative of the estate.

Section 733.612(20) of the Florida Probate Code Provides that the Personal Representative shall:

Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative.

In a wrongful death case, the personal representative is the only party in whose name the lawsuit can be brought. 

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.

Probate, Trust & Guardianship Litigation

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