Probate Section Report
Larry E. Ciesla

The probate section held its regular monthly meeting on February 11, 2009. Mary Ellen Cross, an old member of the section wearing a new hat as a private practitioner, reported on her initial month in the private bar. She recently left her position as staff attorney for the Eighth Judicial Circuit and joined Cynthia Swanson’s firm. Mary Ellen reported that she is handling primarily adoption, family law and probate matters. The section wishes her the best of luck going forward (tip: a very famous person once said, “The harder I work, the luckier I get”). This is not a bad way to approach the practice of law. Anyone wishing to send her an encouraging word may do so at

One of the issues discussed during the January meeting is the idea of practitioners doing a little bit extra to assist the judges now that staff attorney help is at a minimum. It was suggested that one way to help would be to use a checklist when opening and closing estates, which in the past has been handled by the staff attorneys using forms available on the Eighth Circuit’s web site. Another set of such checklists is available through the Leon County Clerk’s web site. The checklist for opening an estate can be found at To access the form for closing an estate, use the same web address, except substitute the word “closing” for the word “opening”. The forms both contain a signature line whereby the attorney certifies that he/she has reviewed the file and that the items listed have all in fact been filed. Use of such forms is not being officially required by the judges, however, it is a suggestion for helping to move cases more efficiently through the system.

Long-time section member Parker Lawrence has been personally involved in probate litigation for several years involving the estate of a family member wherein Parker was a co-personal representative. The case involved an adversary proceeding to admit a handwritten document to probate as the last will of the decedent, which was ultimately denied after trial. An appeal on the merits was dismissed by the DCA. The unsuccessful litigants then filed a motion for recovery of fees and costs in the probate case, which was denied as untimely. The litigation concluded with the 5th DCA issuing an important opinion on January 30, 2009 in the case of Hays vs. Lawrence. The court held that Rule 1.525, Florida Rules of Civil Procedure, applies in adversary probate proceedings, meaning that a motion for recovery of attorney’s fees and expenses must be filed within 30 days of the date of filing of the judgment or service of a notice of dismissal.

Appellants’ losing argument was that Section 733.106(2), Florida Statutes, which does not contain such a limitation, was controlling. The DCA distinguished the case of In re Estate of Brennan, 391 So.2d 276 (Fla. 4th DCA 1980). That case involved a request for fees for the estate’s attorney in a situation where the underlying proceeding had not been designated as an adversary proceeding. The bottom line is that probate litigators are now officially on notice that Rule 1.525 applies to requests for fees in adversary proceedings. It should be noted that certain proceedings are automatically deemed adversary even in the absence of a declaration of same. Under Probate Rule 5.025, these include proceedings to remove or surcharge a personal representative; probate a lost, destroyed, or later-discovered will; determine beneficiaries; construe a will; revoke a will; and determine amount of elective share.

The probate section continues to meet on the second Wednesday of each month in the fourth floor meeting room in the civil courthouse, beginning at 4:30 p.m. All interested practitioners are invited to attend. There are no dues and roll is not taken.

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