LUCY MANGASARIAN, APPELLANT,
v.
GLADYS MERCURIO, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF VIRGINIA GABRIEL, DECEASED, APPELLEE
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An estate beneficiary sought to recover assets she claimed were wrongfully converted by the personal representative and to remove the representative. The trial court dismissed the action for failure to prosecute after more than one year of inactivity. The appellate court affirmed, holding that the proceeding was adversarial in nature and therefore subject to dismissal for lack of prosecution under the Florida Rules of Civil Procedure.
The proceeding is adversarial in nature pursuant to Florida Rules of Probate and Guardianship Rule 5.025(a), which specifically designates proceedings to remove a personal representative as adversary proceedings. As an adversarial proceeding, it is subject to dismissal for failure to prosecute under Florida Rules of Civil Procedure 1.420(e), and the trial court properly dismissed the action.
[1] A proceeding to remove a personal representative is an adversary proceeding under the Florida Rules of Probate and Guardianship.
[2] Adversary proceedings in probate court, after service of formal notice, are conducted similarly to civil suits and are governed by the Florida Rules of Civil Procedure.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The nature of the action is adversarial, see Florida Rules of Probate and Guardianship, Rule 5.025(a), as the appellant sought the return of the assets to the estate plus removal of the personal representative and therefore the matter is subject to dismissal pursuant to Rules of Civil Procedure 1.420(e) for admittingly failing to prosecute within one year.”
Establishes that the proceeding is adversarial and subject to dismissal for failure to prosecute
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Join FLexlaw to unlock all legal intelligenceLucy Mangasarian, a one-fifth beneficiary of her late sister's estate, filed a petition to remove the personal representative, Gladys Mercurio, allegi…
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PER CURIAM.
The appellant, one-fifth beneficiary of her late sister’s estate, filed a petition to remove the personal representative alleging that she used undue influence to obtain assets of the deceased during the deceased’s lifetime, that she wrongfully converted assets rightfully belonging to the estate between the date of the death of the decedent and her qualifying as personal representative of the estate, and that she had converted assets of the estate. The trial court dismissed this petition with leave to file a petition to seek recovery of the assets. Such a petition, seeking the recovery of assets, and upon failure of return of assets, removal of the sister as personal representative was filed and served and was duly answered. After no action was taken in the matter for a period in excess of one year the appellee moved to dismiss the proceeding for failure to prosecute, and the trial judge dismissed appellant’s proceeding for lack of prosecution. This appeal ensued.
The appellant contends that her proceeding was nonadversarial citing In re: Estate of Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980), and that the appellant never declared the action adversarial pursuant to Florida Rules of Probate and Guardianship, Rule 5.025(b). The nature of the action is adversarial, see Florida Rules of Probate and Guardianship, Rule 5.025(a),1 as the appel lant sought the return of the assets to the estate plus removal of the personal representative and therefore the matter is subject to dismissal pursuant to Rules of Civil Procedure 1.420(e) for admittingly failing to prosecute within one year.2
Therefore we affirm the order under review.
Affirmed.
. Rule 5.025 Adversary Proceedings.
(a) Specific Adversary proceedings. The following shall be adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted share, and for revocation of probate of a will. (Emphasis added.)
. Fla.R.P. & G.P. 5.025(d)(2)
(d) Notice and Procedure in Adversary Proceedings.
(2) After service of formal notice, the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.
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Cited By
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Weiss v. Berkett, 949 So. 2d 1092 (Fla. 3d DCA 2007)…SUAREZ, J. We grant the petition for writ of prohibition. The Florida Rules of Civil Procedure apply to adversarial proceedings in probate court. See Mangasarian v. Mercurio, 570 So. 2d 356 (Fla. 3d DCA 1990); Fla. Prob. R. 5.020(d)(2); Fla. R. Civ. P. 1.420(e). The trial court has exceeded its jurisdiction as the order under review does not comport with the requirements of Florida Rule of Civil Procedure 1.420(e) for dismissal for lac…
Authorities Cited
- Allstate Ins. Co. v. Calero, 391 So. 2d 276 (Fla. 3d DCA 1980)
- In re Est. of George E. Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980)