What Is a Probate Adversary Proceeding?

Under the Florida Probate Rules, some disputes that arise during the administration of an estate are considered adversary proceedings. Probate adversary proceedings differ from a standard formal probate administration. They concern conflicts or contested matters that are related to the formal administration of the estate, but are technically outside of the scope of the administration itself. The outcome of an adversary proceeding will usually impact the way the estate is administered, and often, the probate administration cannot be completed without a resolution to the dispute.

What is Probate Rule 5.025?

Florida Probate Rule 5.025 governs probate adversary proceedings. According to this rule, some disputes are automatically considered adversary proceedings, and other disputes may become adversarial if one of the interested parties declares them to be adversary proceedings. Additionally, the court may determine any proceeding to be adversary at any time.

Probate Rule 5.025 also provides that, unlike in standard probate administration, the Florida Rules of Civil Procedure (except Rule 1.525) apply to adversary proceedings. They must also be conducted in a similar way to a civil lawsuit. 

If a proceeding has already started when the order declaring it to be adversarial is entered, it must be conducted as an adversary proceeding going forward. The order will also require any interested persons to respond with written defenses within 20 days from the date the order is entered.

What is a declared adversary proceeding?

A declared adversary proceeding is a type of probate dispute that is not automatically considered adversarial, but becomes adversarial when one party declares it to be. 

Under Florida Probate Rule 5.025(b), proceedings may be declared adversary when one party serves all interested persons with a declaration that the proceeding is adversarial. If the declaration is served by the person initiating the proceedings, it must be served with the petition to which it relates. 

In some instances, the party initiating the proceeding may not want to declare the proceedings adversy, but a party responding to the petition may. When this occurs, the responding party must serve the declaration and a written response within 20 days after receiving the petition or before the hearing date, whichever is earlier. 

What is a specific adversary proceeding?

A specific adversary proceeding is a type of probate dispute that is automatically considered adversarial, with no declaration of adversary proceeding required. 

Florida Probate Rule 5.025(a) lists the following  proceedings that are always considered adversary, unless the court enters an order stating otherwise:

  • Proceedings to remove or surcharge a personal representative
  • Proceedings to remove or surcharge a guardian
  • Proceedings to obtain an injunction or temporary injunction pursuant to Florida Statutes Section 825.1035
  • Proceedings to probate a lost, destroyed, or later-discovered will
  • Proceedings to determine beneficiaries
  • Proceedings to construe, reform, or modify a will
  • Proceedings to cancel a devise 
  • Proceedings to partition property for the purposes of distribution
  • Proceedings to determine pretermitted status or share
  • Proceedings to determine the amount of elective share and contribution
  • Proceedings for the revocation of probate of a will

When should I contact a probate attorney?

Whenever a dispute arises during the administration of an estate, you should contact a probate attorney as soon as possible. An experienced probate litigation lawyer can ensure you take the necessary steps to protect your inheritance rights. A Florida probate lawyer can also provide legal advice as to whether the probate proceedings will be considered adversarial or if you should declare them to be.

Have questions? We’re happy to discuss.
Call (786) 761-8333 or email hello@rmolawyers.com

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About RMO Lawyers, LLP

About RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (786) 761-8333 or visit: https://rmolawyers.com