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Writ of Prohibition Probate

Written by on Mar 29, 2012| Posted in: General

EXTRAORDINARY WRITS IN PROBATE

As a Florida Probate lawyer who handles lawsuits involving inheritance disputes with Wills and Trusts in Florida, we frequently encounter situations where we are asked to employ a variety of extraordinary Writs that are available in Florida jurisprudence.  Among the extraordinary Writs is the Writ of Prohibition.

Typically, a Writ of Prohibition is issued by a District Court of Appeals to prevent or stop a lower court (county or circuit) from any further action involving a lawsuit.  If the Court of Appeals issues an Order to Show Cause upon receipt of the Writ of Prohibition, the consequences are extreme:  The lower court is prevented from conducting further action until the Appellate Court discharges the Writ.

The circumstances under which a Writ of Prohibition can be utilized in the Probate context varies but most frequently it involves a request for the District Court of Appeals to prevent a lower court from exercising its jurisdiction in a matter that it has no jurisdiction to decide.  Once such case recently ruled on by the Third District Court of Appeals from Miami-Dade County illustrates the use of Writ of Prohibition in Probate court.

In Carlton Fields PA and Gary W. Pollock v. Edward J. Locascio and In Re: Estate of Sylvia M. Locascio (Fla. 3rd DCA numbers 3D12-20 and 3D11-3342 March 7, 2012), the Third District Court of Appeals ruled that prohibition was not an appropriate remedy to prevent the lower court from acting in excess of its jurisdiction.  In the Locascio Estate, creditors held property liens on Edward S. Locascio’s property following his conviction for the murder of the decedent.  Although the Probate court recognized that the decedent’s property had passed outside of probate, the creditors refused to release their recorded liens.  On appeal, the Third District Court of Appeals held that the Probate court was without jurisdiction to continue controlling the convicted murder’s interest in the residence or in his share of the net proceeds for sale because those property rights were not part of the Estate of Sylvia Locascio or otherwise under the jurisdiction of the Probate court.

This case is an important reminder of the importance of using extraordinary Writs for review of interlocutory orders and actions by Probate lawyers in Florida.

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