Appellants Must Open an Estate for the Decedent Regardless of the Costs They Will Incur

Posted on January 9, 2017

In the case of Gomez v. Fradin, 199 So. 3d 554, 555 (Fla. 4th DCA 2016), no estate had been opened for the deceased, so the appellants, who were Plaintiffs in the trial court, sought to have the trial court appoint a representative for this proceeding.

Florida Rules of Civil Procedure 1.260(a)(1) Provides that “[i]f 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 [.]” This rule lacks explanation on who is a proper party for substitution and additionally does not provide for the trial court to appoint a successor representative for a deceased party. Although, there is a limited exception in Florida Rule of Civil Procedure 1.210(b), which permits a trial court to appoint a guardian ad litem for a minor “not otherwise represented” in an action.

The Plaintiffs rely on Vera v. Adeland, 881 So.2d 707, 710 (Fla. 3d DCA 2004) to support their arguments that the trial court had the authority to appoint a representative for the deceased, stating that in Vera the court said that “[A]s a general rule, if an estate has been opened, then the decedent’s personal representative should be substituted. If no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted.”

The trial court in our Gomez case found this language to be unsupported dicta in the opinion of that case and did not reference any authority.

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.”

In this proceeding for breach of fiduciary duty the trial court concluded that it did not have the required authority to appoint a representative and subsequently denied the motion. The court order denying substitution is non-final and non-appealable and therefore the court lacked appellate jurisdiction. But it is worth noting that the court did not dismiss the deceased defendants proceeding. The court refused to view this proceeding as a petition for writ of certiorari because there was no showing of irreparable harm that was not remediable on appeal. Although the appellants are burdened with the cost of opening the estate, the court does not view this as an irreparable injury.

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

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