Blogs from May, 2009


Third District Says No to Serial PetitionerA recent opinion issued by our Third District Court of Appeals in Betancourt v. Estate of Victoria Misdraji, 34 Fla.L.Weekly D912a (Fla.3rd DCA May 6, 2009) reminded me of the enormous discretion vested in a probate court to reopen an estate. Typically, a probate estate is reopened following the discovery of assets that were not discovered during the original estate administration. The Uniform Probate Code provides for this very scenario:

Section 3-1008. Subsequent Administration.

If another property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the Court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the Court orders otherwise, the provisions of this Code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.

Florida Probate Rule 5.460 provides that subsequent administration may be ordered by the court if there is newly discovered property, “or if further administration of the estate is required for any other reason.”

Although the language of the rule implies that the legislature intended for liberal application of the law to allow an interested person to reopen an estate, it is an issue that should be carefully analyzed and handled by an experienced probate litigation attorney in order to avoid the problems encountered by the petitioner in the Betancourt case.
In Betancourt, the estate was closed in 2004 when the personal representative (another adult child of the decedent) was discharged. Ms. Betancourt filed written objections to the closing of the estate a month later, and her objections were denied in an order entered in February 2005.

Ten months later, Ms. Betancourt filed a “petition for subsequent administration.” After receiving letters from her, the probate judge conducted a status conference on May 3, 2007. Absent a consensus or majority vote among all five adult children of the decedent, the court declined to re-open the estate for further administration. That very day, Ms. Betancourt filed a motion to disqualify the probate judge. The petition for subsequent administration and the motion to disqualify was denied in an order entered May 21, 2007.

Ms. Betancourt filed another petition to re-open the estate and to appoint a new personal representative on June 11, 2008, and this was denied on June 16, 2008

Finally, the Court’s rulings made their way to the appellate court, where the Third District Court of Appeals ruled that it would not allow Ms. Betancourt to reopen the estate under any circumstances: The probate judge has been patient and gracious, but Ms. Betancourt must now realize that her claims, objections, petitions, grievances, and correspondence to the court regarding her late mother’s estate must stop. Those issues have been adjudicated and may not be asserted successively.

In my view, had Ms. Betancourt filed an appeal or motion for reconsideration when her original petition to reopen was denied, she may have achieved a different result.


Most Recent Posts from May, 2009