State trial court cannot take action against personal representative, guardian or trustee without giving the fiduciary notice and an opportunity to be heard.

In every action that is taken in a probate, guardian or trust court preceding the fiduciary (i.e., the trustee, personal representative or guardian) has the right to notice and an opportunity to be heard.  I have seen this problem arise over and over again in state court proceedings.  The latest affirmation of this principal is articulated in Kountze v. Kountze, 2012 App. Lexis 12515 (Fla. 2nd DCA 2012). 
In Kountze, a trustee was removed by a circuit court judge apparently at a hearing on a motion to compel discovery.  The 2nd District Court of Appeals affirmed that even though a court may remove a trustee on its own initiative under Florida statute §736.0706 “if . . . [d]ue to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries," the court still must give the trustee notice and an opportunity to be heard first.  Further, because the in order to determine whether the trustee is unfit, the court must make factual findings. State courts require personal appearances where federal courts often do not.  However, in state court a judge can only deal with issues that have been properly noticed, and if a judge must make factual findings, then the judge must have a evidentiary hearing unless the parties have stipulated to the facts.  Thus, in this case the 2nd District Court of Appeals remanded the case to the trial court and the order removing the trustee was reversed.  
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Matthew A. Linde
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