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Florida Probate Court Must Appoint Representative Upon Death of Florida Litigant

Written by Anya Van Veen • September 14th, 2016

Probate Litigation,  

What happens when a party to a Florida lawsuit dies, but the lawsuit continues on?  The process is straightforward, yet many practitioners are unaware of how to proceed.  In Gomez v. Fradin, one of the defendants passed away during the pendency of the case.  Plaintiffs moved to substitute parties pursuant to Florida Rule of Civil Procedure 1.260, and asked the trial court to appoint a representative of the decedent in the proceeding for breach of fiduciary duty because no estate had been opened for the decedent.  The Florida trial court denied the motion.  The Florida trial court ruled that it had no authority to appoint such a representative in the litigation, noting that the Plaintiffs could petition for administration of decedent’s estate in the probate court.

Florida Rule of Civil Procedure 1.260(a)(1) provides that:

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party...

The Florida appellate court, although determining that it had no jurisdiction to address the Florida trial court’s denial of the motion to substitute, issued an opinion and concurrence setting forth the applicable Florida law.  The Florida appellate court noted that Rule 1.260 does not state who a “proper” party is for substitution, but also does not provide that the trial court can appoint a successor representative for the deceased party.  Indeed, there is no authority in Florida statute or rule for the trial court to appoint a successor representative of a deceased party. 

The Florida appellate court explained the proper procedure:

In the case of a decedent, [the appointment of a successor representative] requires the action of the probate court to open an estate and appoint a personal representative for the decedent. Harrison-French v. Elmore, 684 So. 2d 323 (Fla. 3d DCA 1996), is instructive. There, the trial court ordered the defense attorney to open an estate for the decedent defendant. Id. at 324. The Third District reversed, concluding that the defense attorney had no duty to open an estate. Id. Instead, the court noted that the plaintiff’s remedy as an unliquidated creditor was to petition for administration of the estate. Id. at 325. That is exactly what the trial court in this case correctly concluded was the proper method of substituting parties.

Although the process of substituting a representative for a deceased party is well-known to probate litigators, it can often be a trap for the unwary attorney or litigant.  Given the strict deadlines in probate litigation and for substitution of parties, consulting with a probate litigator upon the death of a party is advised.

Anya Van Veen is a Florida probate litigation attorney.