Blogs from January, 2010


The issue of what probate rulings are appealable in the context of will contests and probate litigation is complicated, confusing, and subject to debate among jurists and attorneys in Florida.  Generally, the issue is governed by appellate rules, which authorize appeals of “orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person[.]”  Due to the ambiguity of the language of the rule, the Florida Supreme Court has offered guidance in the form of comments to an amendment to one of the rules:

“[I]n probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that addresses many different persons.  An order of the circuit court that determines a right, an obligation, or the standing of an interested person as defined by the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged.”

Therefore, there can often be multiple appeals involving multiple orders in the probate context.   A great discussion of what orders are “final” for purposes of appeals in probate is found in In re Estate of Bierman, 587 So.2d 1163 (Fla. 4th DCA 1991). 

My practice frequently deals with issues regarding the payment of the client’s attorney's fees from the probate estate or from another beneficiary’s inheritance and these decisions are often appealed.  Here is a list of a few orders found by Florida courts to constitute final or appealable orders and other non-final non-appealable orders in the context of attorney fee awards in probate:

  • An order awarding fees is a final appealable order as to the amount and apportionment thereof;
  • An order granting attorney’s fees against a claimant in favor of the decedent’s estate, but reserving jurisdiction to determine the amount of the fees at a later date, is not a final order;
  • An order which only determines entitlement to fees does not finally determine a right or obligation of an interested person when the fee is to be specified in a later evidentiary hearing;
  • There is no final order, although the probate court sets the number of fees and costs to be awarded when the court’s order refers to a future date for the determination as to who should pay the award; and
  • A final order dismissing with prejudice, as a discovery sanction, a claim for loan reimbursement against a decedent’s estate is appealable.

It is important to note that whether an order is “final” must be viewed from the perspective of the appellant who is challenging the order; an issue might be final to one interested person or beneficiary, and not be final to another.  Therefore, it may not be evident, even after careful consideration by an experienced probate litigation attorney, as to whether and to what extent decisions rendered in the probate are ripe for reconsideration by an appellate court.


Most Recent Posts from January, 2010