Trust Litigation and other Probate Related Litigation

Transcription

1 Trust Litigation and other Probate Related Litigation Please note that any trust proceedings under Chapter 736 (formerly Chapter 737), should be filed with the Clerk of the Probate Division. See Administrative Order S. The form in the Florida Rules of Civil Procedure, civil action cover sheet for civil lawsuits, includes "trust litigation" as one of the categories for reporting workload data pursuant to Florida Statute, Section The explanation for "trust litigation" following the civil action coversheet is "all civil matters involving guardianships, estates, or trusts and not appropriately filed in probate proceedings. " As indicated, there is some wiggle room for where a case involving a trust is filed-in probate or the civil division. Not all counties in Florida have separate probate divisions. When you have a case that requests a jury trial, that is better handled in civil. The administrative judge of probate will consider a petition to transfer a case validly seeking a trial by jury to the civil division. Please see the two administrative orders (case numbers S and 79-41) giving jurisdiction to the probate division of trust matters. The order in Case 78-1 gives transfer authority to the administrative judge of another division to send a case "improvidently filed" to be assigned by the administrative judge of the civil division to the probate judge responsible for the estate or guardianship pending. The administrative order entered in 1978 covered "Equitable claims against an estate" and provides: The following proceedings shall not be deemed "Probate-related" cases and shall be commenced as follows: II B. Creditors' and Personal Representatives' Claims. All claims of creditors against the estate of a decedent or ward and all claims of a personal representative or guardian (not within the purview of Article LB.) shall be commenced in a court of competent jurisdiction as an independent action and litigated to judgment there. Be sure to note that guardians need permission of the probate court to prosecute or defend any action. Fla. Stat (11). An important limitation on probate litigation that the probate rules give judges is the authority to limit discovery. Fla. R. Prob. P (b) says "...in order to conserve the assets

2 of the estate, "the court" (note it is not limited to judges in the probate division) "has broad discretion to limit the scope and the place and manner of the discovery and to assess the costs, including attorneys' fees, of the discovery against the party making it or against I or more of the beneficiaries of the estate, or against the ward in such proportions as the court determines, considering, among other factors, the benefit derived therefrom." Personal representatives do not need permission of the court to prosecute or defend an action as guardians do. The main purpose of the guardianship is to protect an incapacitated ward's health, and protecting a ward's property for their heirs (conveyed at date of death by wills, trusts, or statutes governing intestacy) is not as high a priority in guardianships, as it is in estates. Personal Representatives have the right (except as otherwise provided by the will or court order, and assuming the litigation is "reasonably for the benefit of the interested persons") to "prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative." See Fla. Stat (20). Attachments: Administrative Orders Local Rule Probate Fee Schedule

3 THE ELEVENTH JUDICIAL CIRCUIT MIAMI-DADE COUNTY, FLORIDA IN RE: ADMINISTRt; TIVE ORDER GOVERNING PROBATE DIVISION CASE NO (Court Administration) ADMINISTRATIVE ORDER NO PURSUANT TO the authority vested in me as Chief Judge of the Eleventh Judicial Circuit of Florida, the [oijowing procedures shall be adhered to in the Probate Division of the Circuit Court: 1. Assignment of Cases by the Clerk of the Court. A. All proceedings shall be assigned equally and randomly by the Clerk among the several sections oft11is Division except as otherwise provided by Order or Directive of the Chief Judge. B. No file or pleading shall indicate the name of a judge. All assignments will be made by section in accordance with the blind filing system. C. Proceedings will be filed at the Filing Desk in the Probate Division, located on the third floor of the Courthouse, in the same manner as heretofore filed in the County Judge's Court. D. A list of all cases and assignments will be posted on the bulletin board in the clerk's Office each morning before 9:00 A.M in order tllat attorneys may be advised of the section to whicb cases have been assigned from the prior day filings. E. In 'the event of an emergency where a proceeding requires immediate attention. the Administrative Judge may assign the same to a section of tile Division forthwith. F. Estates and guardianships involving immediate members of the same -family shall, upon request to the Clerk. be assigned to the same section or may later be transferred to the section having the earlier filed case. II. Reassignment of Cases. After the initial assignment of cases to the individual section by the Clerk by the blind filing system. there shall be no transfer of cases from one section to another. except as fallows: A. When a Judge has recused himself Dr herself Dr has been disqualified form hearing a case; or whenever it appears to a Judge that a case should be transferred for this reason. such case should be brought to the attention of the Administrative Judge of the Probate Division as hereinafter set forth. B. The transferring Judge shall instruct the Clerk to,place the case upon the calendar of the Administrative Judge for the following day for reassignment. C. Ifit appears in the best interest of justice that a speedy transfer be made, the transferring Judge shall immediately send the file to the Administrative Judge who shall take the proper action as soon as practicably possible. D. Cases may be reassigned by the Administrative Judge of the Division for cause after notice. III. To prevent delays for continuances because of the absence. unavailability or overburdened calendar of any Judge~ to promote the efficient operation of the Probate Division as a whole; or for any other good cause: A. Any two or more Judges may hear any matters for each other; may hear each other's calendars; and may transfer cases from one to the other either temporarily or pennanently. If a cause is transferred for trial, it should be transferred permanently for trial and final disposition. B. Any such assignment may be made with the conpurrence ofthe two or r 12/03

4 more Judges affected. The Administrative Judge need 110t be consulted, but may set aside such reassignment or transfer for good cause. C. No transfer should be made under this section in lieu ofrecusal or disqualification, as any transfer for the latter reason must be referred to the Administrative Judge for reassignment. IV. Removal of Court Files. Removal of court files shall be only upon written permission of the Judge in whose Section the case is assigned. Any persoll entitled to remove a court file shall sign a card indicating the case number. their name. office address and telephone number. The Section Judge may grant permission for removal of the file on the same card. The Clerk's Office shall supply a uniform card for this pu1pose. Except for good cause shown in writing, only the following categories of persons shall be privileged to remove such files: A. A ttorneys of record. B. Title companies preparing abstracts of title may remove closed files for a period not to exceed 4& hours. C. Upon good cause shown by ally member of the Florida Bar or any duly authorized investigator of a federal of state agency. D. Judicial staff members and personnel of the Administrative Office of the Courts, who in the course of their official duties find it necessary to remove Probate Division Court files from the Clerk1s Office. V. Ex Parte Procedure. A. Ex Parte hours will be held at such times and on such days of each week as may be designated by the Judge of the Sections or by the Administrative Judge of the Division. Attorneys will restrict their appearances before the Judges at Ex Parte time to those matters requiring some explanation to the Judge by the attorney. Under nonnal circumstances, conferences with a Judge at Ex Parte time should not exceed five minutes. Attorneys should never issue a notice of hearing returnable at Ex Parte time. Two or more attorneys should not appear together to have the Court determine even minor disputed matters. B. Attorneys will use Ex Parte slips in all Ex Parte matters not personally presented to.the Judge. These Ex Parte slips shall provide any explanation necessary to aid the Court and shall include the name ofllie attorney of record actually handling the case and his phone number. The Ex Parte slip will also advise the Clerk of the number p[ conformed or certified copies desired by the attorney. Attorneys shall attach to the Ex Parte slip self-addressed, stamped envelopes for the mailing of certified or conformed copies of pleadings to themselv.es and other counsel. If certified copies are required, the proper fee should also be submitted. C. All agreed orders shall be referred to as such in the body of the order. VI. Voluntary Guardianships. When a petition is filed with the Court for the appointment of a voluntary guardian of the property pursuant to F.S , the petition shall allege, in addition to the statutory requirements" the physical residence of the petitioner. The petition need not be accompanied by a certificate of a licensed physician. After filing and assignment to a particular division, the Judge thereof shall designate and appoint the physician to perform the mental examination required pursuant to the statute. The petitioner or the guardian of the property shall be responsible for payment of the examining physician1s fee. VII. Orders reflecting rulings upon contested matters shall be submitted not later than 48 hours after ruling to the Ex Parte Clerk of the Judge responsible for such orders. All orders and final judgments shall be on plain stationery. VIII. Rescission of Administrative Order No Administrative Order No heretofore entered on January, ~ and the

5 same is hereby rescinded and lleld for naught DONE AND ORDERED in Chambers at Miami, Dade Connty, Florida, tilis 19 day ofjune, EDWARD D. COWART, CIDEF JUDGE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA 12/03

6 THE ELEVENTH JUDICIAL CIRCUIT,. DADE COUNTY, FLORIDA CASE NO (Court Administration) IN RE: CLARIFICATION OF PRO.' BATE-RELATED CASES ADMINISTRATIVE ORDER NO S " I. The following proceedings shall be deemed Probate-related and shall be commenced as followll:' A. Chapter 737 Proceedings. Any proceeding arising under or governed by Chapter 737, Florida Statutes (except trust registration) shall constitute an original proceeding and shall be filed with the Clerk -of the Probate Division of the Circuit Court and payment of the filing fee prescrib.ed by law for the filing of a civil action. All assignments will be made by division in accordance with the blind filing system. When a proceeding emanates from an estate subject.to probate in the Probate Division of the Circuit Court of this Circuit, it may be assigned by the Administrative Judge of that Division to the Judge who presided over the original estate proceeding., B. Equitable Claims Against an Estate. Suits involving the personal representative of the estate of a decedent or ward that were wholly cognizable in equity according to former chancery practice shall be commenced as an original proceeding by filing a complaint with the Clerk of the Probate Division of the Clerk of the Circuit Court and payment of the filing fee prescribed for the filing of a civil action..' After commencement of the suit, it shall be assigned by the Clerk as a companion case to the ProbateJ udge responsible for the estate or guardianship proceeding from which it emanated. Any claim, improvidently filed, in another Division shall. upon application of the parties to the Administrative Judge of the General Trial Division, be transferred to the Probate Judge responsible for the estate or guardianship pending. Such equitable claim shall include by way of illustration rather than limitation, property claimed as being held by the decedent or ward as trustee or in some other fiduciary capacity; or suits involving rescission, cancellation, reformation and specific performance of antenuptial or postnuptial agreements. land sale contracts or other instruments or transactions. II. The following proceedings shall not be deemed Probate-related cases and shall be commenced as follows: A. Creditors' and Personal Representatives' Claims. All claims of creditors against the estate of a decedent or ward and 'all claims of a personal representative or guardian (not within the purview of Article LB.) shall be commenced in a court of competent jurisdiction as an independent action and litigated to judgment there. DONE AND ORDERED in Chambers at the Dade County Courthouse. this 9 day of March EDWARD D. COWART. CHIEF JUDGE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

7 LOCAL RULE R-I-9 ESTABLISHMENT AND DEFINING JURISDICTION OF THE PROBATE DIVISION OF THE CIRCUIT COURT The Probate Division of the Circuit Court is hereby established and will be responsible for the disposition of the following proceedings: 1. The administration of decedents' estates. 2. Guardianships of minors and adult incompetents. 3. Approval of settlement of claims of minors in personal injury actions where action has not been filed in General Jurisdiction. 4. Petitions for determination of competency. 5. Involuntary hospitalization under the Baker Act. 6. Involuntary hospitalization for alcoholics and drug addicts. 7. Civil actions filed in General Jurisdiction involving the estate of decedents and incompetents formerly cognizable in equity may be transferred from General Jurisdiction for trial in the Probate Division of the Circuit Court before the Judge to whom the estate or guardianship proceeding is assigned. 8. Such other related matters as may be assigned or reassigned by the Chief Judge.

8 PROBATE FEE SCHEDULE - EFFECTIVE 6/1/09 CP 30 07/87 ADMINISTRATION CP 31 05/85 SUMMARY ADMINISTRATION - under $ /86 $ and up CP 33 03/83 SMALL ESTATES CP 34 07/87 ANCILLARy CP 35 02/82 AUTHENTICATED COPIES W/ORDER(FOREIGN WILL CP 36 02/82 AUTHENTICATED COPIES W/O ORDER CP 37 07/87 CURATORSHIP/CONSERVATORSHIP CP 38 07/87 TRUST CP 39 01/81 SAFE DEPOSIT BOx/ORDER OF ENTRy CP PRESUMPTION OF DEATH CP 41 07/87 PROBATE RELATED CP 42 07/87 ADVERSARY PROCEEDINGS /87 LOST OR DESTROYED WILL /87 CROSS-CLAIM CP 74 04/84 EMERGENCyIMISCELLANEOUS GD GUARDIANSHIP (person ONL Y) GD 44 25/35 GUARDIANSHIP (FOREIGN) GD 45 23/33 SETTLEMENT OF MINOR'S (under $15,000.00) GD 65 27/37 GUARDIANSHIP (LIMITED) GD 66 27/37 GUARDIANSHIP (PLENARy) GD 67 GUARDIANSHIP (PRE-NEED)... NO CHARGE GD 68 27/37 GUARDIANSHIP (VOLUNTARY) GD 69 22/32 GUARDIANSHIP (VA) GD71 GD75 GD76 MH46 GUARDIANSHIP (PRE-NEED)... NO CHARGE 24/34 EMERGENCYIMISCELLANEOUS /36 CHILD PERFORMER & ATHLETE PROTECTION DETERMINATION OF INCAPACITy CA VEAT NOTICE OF TRUST WRIT OF GARNISHMENT TO SEAL COURT FILE OATHS SUBPOENAS ISSUE SUMMONS FOR INDEXING EACH W ARDIPETITIONER IN EXCESS OF FIVE SEARCHING RECORD, EACH year CERTIFICATION COPY PER PAGE CLERKS CERTIFICATE PROFESSIONAL GUARDIAN SERVICE CHARGE GUADIANSHIP ONLY: VERIFIED INVENTORY, VALUE OF ASSETS: -$25,000 OR LESS.... -MORE THAN $25, AUDIT FEES FOR ANNUAL GUARDIANSHIP ACCOUNTINGS: FOR ASSETS VALUED AT $25,000 OR LESS.... FROM $25,000 TO $100, FROM $100,000 TO $500, MORE THAN $500, NO CHARGE $ $ $ $ $250.00