HATTIE PEARL DUKES, ET AL., APPELLANT,
v.
ESTATE OF JESSIE EARL WILLIAMS, APPELLEE
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The Administrator of Georgia Mae Williams' estate appealed a circuit court order denying a petition to set aside the summary administration of Jessie Earl Williams' estate. The court affirmed but modified the order to allow the appellant to file an amended petition with more appropriate procedural language seeking to set aside the summary administration order and quiet title to property.
The circuit court correctly held that a Petition to Set Aside Probate is not appropriate where no will has been admitted to probate; however, the appellant may file an amended petition seeking the proper relief of setting aside the summary administration order and quieting title to the real property.
[1] A petition to set aside probate is not the appropriate procedure to challenge an order of summary administration.
[2] A court may modify an order to allow a party to file an amended pleading that more appropriately requests the relief sought.
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Join FLexlaw to unlock all legal intelligence“quite simply, there can be no revocation of probate where no will has been admitted to probate”
Establishes that a Petition to Set Aside Probate is procedurally inappropriate when no will exists
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Join FLexlaw to unlock all legal intelligenceJessie Earl Williams and his wife Georgia Mae Williams owned property as tenants by the entirety. When Jessie Earl died intestate in 1981, Georgia Mae…
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PER CURIAM.
This is an appeal from the circuit court order denying appellant’s “Amended Petition to Set Aside Probate.” We modify the order appealed and as modified, affirm.
Appellant is the Administrator of the Estate of Georgia Mae Williams, who is now deceased. Williams was once a co-owner of a parcel of property with Jessie Earl Williams, her husband, held as tenancy by the entirety. Jessie Earl Williams died intestate on May 7, 1981, leaving Georgia Mae Williams as his surviving spouse who took title to the land by right of survivorship. Then Georgia Mae Williams died.
In February 1983 relatives of Jessie Earl Williams filed for a summary administration of Jessie Earl Williams’ estate, to be distributed among Jerry, Harry and Jessie Williams, Jr. The estate of Georgia Mae Williams was not mentioned in this petition nor was appellant notified of its filing, although one of the parcels of land named for distribution in the petition was the same one Georgia Mae Williams held by right of survivor-ship when Jessie Earl Williams died.
The court issued an Order of Administration in accord with the terms of the petition. The titles of two real estate parcels were transferred to Jerry, Harry and Jessie Williams, Jr., which in effect cast a cloud upon the title of the estate of Georgia Mae Williams. Appellants filed a document entitled, “Amended Petition to Set Aside Probate,” in an attempt to re-open the estate of Jessie Earl Williams so that appellant could assert its claim to the property owned by right of survivorship, and to claim its share in the estate of Jessie Earl Williams as the heirs of the estate of his spouse.
The circuit court denied appellant’s petition, stating that a Petition to Set Aside Probate was not an appropriate procedure to challenge a Summary Administration Order.
We agree with the circuit court order that, quite simply, there can be no revocation of probate where no will has been admitted to probate.
However, we would point out that except for the title, the petition appears to be aimed at setting forth a request to set aside the order of summary administration and possibly to quiet title as to the realty allegedly owned by the entire-ties.
Therefore, we modify the order appealed to grant leave to appellant to file an amended petition and as modified, we affirm the order. Appellant may file an amended document more appropriately requesting the relief sought.
Affirmed without prejudice to file an amended pleading.
JOANOS and ZEHMER, JJ., and CHARLES E. MINER, Jr., Associate Judge, concur.