A Trial Court Has No Authority to Appoint a Representative for a Decedent Where There is not an Open Estate

Posted on December 2, 2016

In Gomez v. Fradin, 199 So. 3d 554 (Fla. 4th DCA 2016), the plaintiff challenged the trial courts order denying a motion to substitute parties pursuant to Florida Rules of Civil Procedure 1.260(a). Since no estate had been opened for the decedent during the prior breach of fiduciary duty proceeding, appellants sought to have the trial court appoint a representative for the decedent. The trial court ruled that it did not hold the authority to appoint a representative of this type and thus denied the motion. The order denying substitution was a non-final and non-appealable order, and therefore the court lacked appellate jurisdiction. The court offered appellants an alternative remedy in which they could petition for administration in the probate court, since appellants are unliquidated creditors of the estate.

Similarly, in Harrison–French v. Elmore, 684 So.2d 323 (Fla. 3d DCA 1996), the Third District reversed, the trial courts decision to order the defense attorney in that case to open an estate for the decedent defendant. Comparable to our case above, the court there held that the plaintiff’s remedy as an unliquidated creditor was to petition for administration of the estate. See Section 733.308 Fla. Stat. (2016) and Fla. Prob. R. 5.120(1).  Tthis statue and corresponding rule state that the probate court has the authority to appoint an administrator ad litem in cases where a personal representative is unable to represent an estate.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

Blog Archive

Practice Areas

Probate Administration & Litigation

Wills & Trust Administration & Litigation

Guardianship Administration & Litigation

Commercial & Real Estate



Contact Us





SPAM validation

Serving clients in Boca Raton, Boynton Beach, Deerfield Beach, West Palm Beach and throughout the Tri-County Area of Palm Beach County, Broward County and Miami-Dade County.


12856 Whitehorn Way
Boynton Beach, Florida 33473-3313

Phone: (561) 614-2770
Click Here For Directions

Practice Areas

Wills & Trust
Commercial & Real Estate Litigation
Negotiation of Contracts

Quick Links

Attorney Profile
FAQ Videos