MARCUS DAVID BENEDETTO, ETC., ET AL., APPELLANTS,
v.
COLUMBIA PARK HEALTHCARE SYSTEMS, ETC., ET AL., APPELLEES
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A personal representative of an estate sought clarification of an order requiring him to show cause why his appeal should be dismissed because he was not represented by counsel. The court granted his motion for clarification and extension of time, holding that Florida Rule of Probate Procedure 5.030(a) requires personal representatives to be represented by counsel unless they are the sole interested person in the estate.
A personal representative must be represented by counsel in appeals unless the personal representative is the sole interested person in the related probate proceeding. The appellant was given thirty days to either furnish probate record portions establishing sole interested person status or secure proper counsel representation.
[1] A personal representative of an estate must be represented by counsel unless the personal representative is the sole interested person.
[2] An independent action on behalf of an estate is governed by the rule requiring legal representation for personal representatives.
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Join FLexlaw to unlock all legal intelligence“Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.”
States the governing rule requiring counsel representation for personal representatives with limited exceptions
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Join FLexlaw to unlock all legal intelligenceAppellant Marcus David Benedetto, acting as personal representative of his deceased mother's estate, initiated an independent action on behalf of the …
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TORPY, J.
ON MOTION FOR CLARIFICATION AND EXTENSION OF TIME
Appellant seeks to have us clarify a pri-or order requiring him to show cause why this appeal should not be dismissed because, although Appellant advances this appeal in his capacity as personal representative of an estate, he is not represented by counsel. Appellant also seeks additional time to retain counsel. We grant Appellant’s motions to the extent expressed herein.
Appellant challenges the dismissal of an independent action he initiated as personal representative of the estate of his deceased mother. From the limited record before us, we are not able to determine the nature of the claim, nor can we determine whether Appellant is the “sole interested person” in the related probate proceeding.
Florida Rule of Probate Procedure 5.030(a) provides in relevant part as follows:
(a) Required; Exception. Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative.
Because an independent action on behalf of an estate is ancillary to the estate administration, this rule governs both the estate administration itself and any independent proceedings prosecuted or defended by the estate. Thus, unless'Appellant is the “sole interested person,” as defined by law, he is precluded from maintaining this appeal without counsel. See, Dimitroff v. Taylor, 651 So. 2d 131 (Fla. 2d DCA 1995). See also § 731.201(21), Fla. Stat. (2005) (defining “interested person”).
Having now clarified our prior order, Appellant shall, within thirty (30) days of the date of this order, furnish to this court relevant portions of the probate record, and appropriate argument in proper form, to establish that he is the “sole interested person” in the related probate proceeding. Alternatively, Appellant may, within thirty (30) days of the date of this opinion, secure the proper, written appearance of counsel. To this extent only, Appellant’s request for additional time is granted. Failure to comply with this order may result in dismissal without further notice.
MOTIONS GRANTED.
THOMPSON and ORFINGER, JJ., concur.
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Lituchy v. The Est. OF Carol R. Lituchy, 61 So. 3d 506 (Fla. 4th DCA 2011)…y guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.”) (emphasis added); Benedetto v. Columbia Park Healthcare Sys., 922 So. 2d 416 (Fla. 5th DCA 2006). Reversed and remanded with directions to reinstate the petition for administration. GROSS, C.J., WARNER and TAYLOR, JJ., concur.…
Authorities Cited
- Eldon August Dimitroff v. The Honorable Peter J.T. Taylor, 651 So. 2d 131 (Fla. 2d DCA 1995)