Florida Probate Rule 5.025 defines an adversary proceeding. The full rule is listed below. Many inexperienced probate litigation attorneys do not understand that a formal probate is not an adversarial proceeding. However, adversarial proceedings can exist within the formal probate proceeding. In a large probate, there could be many different adversarial proceedings between different interested parties at one time (although with a small probate there may not be any adversarial proceedings). Adversarial proceedings are generally more formal and proceed under the rules of civil procedure (different rules that generally deal with procedure in civil trials). It is critical to understand when you are in the middle of an adversarial proceeding because the burden of production and burden of proof is generally different. Here is the rule:
“(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, determine amount of elective share and contribution, and for revocation of probate of a will.
(b) Declared Adversary Proceedings. --Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.
(1) If served by the petitioner, the declaration shall be served with the petition to which it relates.
(2) If served by the respondent, the declaration and a written response to the petition shall be served at the earlier of:
(A) within 20 days after service of the petition, or
(B) prior to the hearing date on the petition.
(3) When the declaration is served by a respondent, the petitioner shall promptly serve formal notice on all other interested persons.
(c) Adversary Status by Order. --The court may determine any proceeding to be an adversary proceeding at any time.
(d) Notice and Procedure in Adversary Proceedings.
(1) Petitioner shall serve formal notice.
(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.
(3) The court on its motion or on motion of any interested person may enter orders to avoid undue delay in the main administration.
(4) If a proceeding is already commenced when an order is entered determining the proceeding to be adversary, it shall thereafter be conducted as an adversary proceeding. The order shall require interested persons to serve written defenses, if any, within 20 days from the date of the order. It shall not be necessary to re-serve the petition except as ordered by the court.
(5) When the proceedings are adversary, the caption of subsequent pleadings, as an extension of the probate caption, shall include the name of the first petitioner and the name of the first respondent.”
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