Analysis

Probate Is Paperwork…

Until It’s a Lawsuit

Florida Probate Rule 5.025 is the rule that separates two fundamentally different worlds within probate court: the informal, administrative, non-adversarial world of routine estate administration — and the fully contested, civil-procedure-governed world of adversary proceedings. Which world you are in determines everything: what rules apply, what kind of notice is required, whether the Florida Rules of Civil Procedure govern, what deadlines bind you, and how the court exercises its power.

The rule does three things. First, it lists specific proceedings that are automatically adversary. Second, it allows the court or a party to declare any other proceeding adversary. Third, once a proceeding is designated adversary, it mandates formal notice and conduct similar to civil litigation, with the full Florida Rules of Civil Procedure applying.

The reported appellate case law on Rule 5.025 is richer than on almost any other probate rule — there are over a hundred citations in Florida courts alone. But the substantive holdings cluster around a set of recurring, high-stakes issues. Let me walk through the cases that actually matter.

The first and foundational case is In re Estate of Beeman, 391 So. 2d 276, from the Fourth District, decided in 1980.

This is the oldest significant case and it is still cited constantly — thirty-seven times in the reported Florida case law — because it established the single most important principle under the rule: the designation of a proceeding as adversary is not automatic just because the subject matter could fit into that category. Someone must actually make the designation, and it matters enormously.

Here are the facts. During the administration of an estate, a dispute arose over attorneys’ fees. The law firm filed a petition to enforce payment. The court held an evidentiary hearing and awarded fees. The personal representative then filed a petition for rehearing. The trial court held another hearing and issued an amended order reducing the fees. The issue on appeal was whether the trial court even had jurisdiction to enter that amended order.

The Fourth District’s answer turned entirely on whether the attorneys’ fees proceeding was an adversary proceeding. If it was adversary, then the Florida Rules of Civil Procedure applied — including Rule 1.530, which authorizes motions for rehearing and motions to alter or amend a judgment. If it was not adversary, the probate rules governed exclusively, and at that time the probate rules contained no provision for motions for rehearing. The trial court would have been stripped of jurisdiction the moment the original order was entered.

The court held that the proceeding was not an adversary proceeding. Attorneys’ fees disputes are not on the automatic list in Rule 5.025(a), and the trial court had never made a formal determination designating the proceeding as adversary. The original order therefore became absolute on its rendition. The court lacked jurisdiction to alter it. The amended order reducing the fees was quashed.

The lesson from Beeman echoes through every case that follows it: the adversary designation is not a background assumption or a default. It is a deliberate, formal act. And when it is absent, the probate rules’ far more limited jurisdiction framework governs — with significant consequences for timeliness, rehearings, and the availability of civil procedure tools. The case also established the corollary that an appellate court will not retroactively apply the adversary label for the first time on appeal. Substantive rights are at stake. You get it right at the trial level, or you don’t get it at all.

The second case is Mangasarian v. Mercurio, 570 So. 2d 356, from the Third District, decided in 1990.

This case is the flip side of Beeman — it establishes that when the nature of a proceeding is inherently adversary under Rule 5.025(a), no additional designation is required and the adversary label applies whether or not anyone explicitly invoked it.

The facts: a beneficiary filed a petition to remove the personal representative and to recover assets she claimed had been converted from the estate. The litigation eventually went dormant for more than a year. The personal representative moved to dismiss for lack of prosecution under Rule of Civil Procedure 1.420(e). The trial court granted the motion. On appeal, the petitioner argued that dismissal was improper because the proceeding was not adversary — she had never declared it adversary under Rule 5.025(b), so she claimed the civil rules’ one-year failure-to-prosecute rule didn’t apply.

The Third District rejected this argument. Rule 5.025(a) explicitly lists proceedings to remove a personal representative as automatic adversary proceedings. The petitioner’s failure to formally declare the proceeding adversary was irrelevant. The nature of the proceeding itself — removal and surcharge — made it adversary as a matter of law. Since it was adversary, the Florida Rules of Civil Procedure governed, the failure-to-prosecute rule applied, and the dismissal was affirmed.

Why does this case matter? Because it clarifies that the adversary designation under Rule 5.025(a) is self-executing for the listed proceedings. You cannot escape the civil procedure framework by simply declining to invoke it when your proceeding falls within the specific list. The rule categorizes the proceeding for you.

The third case is Taylor v. Mercedes ex rel. Mercedes, 760 So. 2d 282, from the Fourth District, decided in 2000.

This case gives us the foundational holding on formal notice in adversary proceedings — and it has been cited in virtually every surcharge case decided since.

The facts are straightforward. Allan Taylor was appointed guardian of Samuel Mercedes, a minor who had received a significant personal injury settlement. A circuit court judge — exercising concurrent jurisdiction with the probate court over the settlement funds — held an apportionment hearing. At that hearing, the judge determined that Taylor had misused some of the deposited funds and ordered him to reimburse the account from his own pocket.

The Fourth District reversed on a single ground: Taylor was never given formal notice that he faced sanctions at that hearing. Surcharging a guardian is an adversary proceeding under Rule 5.025(a). Rule 5.025(d) requires that in adversary proceedings, the petitioner must serve formal notice. Formal notice is only waivable in writing under Rule 5.180. Taylor had received no formal notice, and he had signed no written waiver.

The court held that reversing was required. Full stop. There is no equitable exception. There is no harmless error analysis. When a proceeding is adversary and formal notice is required, the failure to give that notice is a per se reversible due process violation.

Why does this case matter? Because it is the seminal statement that the formal notice requirement of Rule 5.025(d) is not a technicality — it is the mechanism by which the court acquires personal jurisdiction over an individual respondent in an adversary proceeding. Without it, whatever order the court enters against that person individually is void.

The fourth case is Merkle v. Guardianship of Jacoby, 862 So. 2d 906, from the Second District, decided in 2003.

This case builds directly on Taylor and applies it in the guardianship surcharge context — and in doing so it gives us the clearest articulation of why formal notice is required and what a surcharge actually is.

The facts: LeRoy Merkle was a guardian and an attorney. He regularly paid himself both guardian’s fees and attorney’s fees from the ward’s limited assets without prior court orders approving them. After the ward died and Merkle filed his final accounting and petition for discharge, the probate court — without any hearing and without any prior notice to Merkle — entered an order requiring him to refund $3,931.12 to the guardianship estate for excessive compensation.

The Second District reversed. The court defined a surcharge as “the amount that a court may charge a fiduciary that has breached its duty,” and held that the refund order was, functionally and legally, a surcharge — regardless of what the court called it. An order requiring a guardian to return money to the estate because of alleged breach of fiduciary duty is a surcharge. Rule 5.025(a) makes proceedings to surcharge a guardian adversary proceedings. Therefore formal notice was required. None was given. No written waiver existed. The order was void.

The significance of Merkle extends beyond guardianship law. It established the principle — later applied extensively to personal representatives and trustees — that courts cannot disguise a surcharge as something else by calling it a “refund order” or a “reimbursement order.” Substance controls. If the order requires a fiduciary to pay money back out of personal funds because of alleged breach of fiduciary duty, that is a surcharge, and it triggers every formal requirement of Rule 5.025.

The fifth case is Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002, from the Fifth District, decided in 2005.

The facts are important. Dorothy Wehrheim died while living at Golden Pond, an assisted living facility. A geriatric care manager named Rebecca Fierle — who had been brought in by Golden Pond’s administrator — arranged for Dorothy to execute a new will that left her entire estate to Golden Pond and named Fierle as personal representative. Dorothy’s children — who had been excluded from all her prior wills as well — filed petitions to deny admission of the will to probate and to remove Fierle as personal representative, alleging undue influence and lack of testamentary capacity. Golden Pond moved for summary judgment on the ground that the children lacked standing as interested persons, because even if the 2002 will was thrown out, the prior wills also excluded the children.

The Fifth District’s first holding is procedural and directly relevant to Rule 5.025: because proceedings for revocation of probate and removal of a personal representative are adversary proceedings under Rule 5.025(a), they are governed by the Florida Rules of Civil Procedure. And under those civil procedure rules, standing is not a typical affirmative defense that can be waived if not pleaded. Instead, in adversary probate proceedings to contest a will or remove a personal representative, standing — meaning qualification as an “interested person” — is an element of the petitioner’s own case that must be established by the petitioner. The petitioner must plead and prove that they are an interested person. Golden Pond had no obligation to plead lack of standing as an affirmative defense.

This is the most important standing case under Rule 5.025, and it also gives us the clearest statement of how the rule’s adversary framework interacts with will contest proceedings.

The court then went on to analyze the doctrine of dependent relative revocation and reversed summary judgment on the undue influence claim — holding that whether the revocation clause of the will could survive even if the testamentary provisions were void was a factual question that had to go to the trier of fact.

Why does this case matter? Because it resolves a fundamental procedural question: in an adversary proceeding under Rule 5.025 to contest a will or remove a personal representative, the burden is on the petitioner to establish standing, not on the respondent to raise its absence as an affirmative defense. That is the opposite of how most civil litigation works.

The sixth case is In re Guardianship of Schiavo, 792 So. 2d 551, from the Second District, decided in 2001.

This is by far the most widely cited case in the Rule 5.025 universe — 136 citations — because it is one of the most famous end-of-life cases in American legal history. But from a Rule 5.025 standpoint, what matters is what it teaches about the use of adversary proceedings within guardianship, the limits of post-judgment motions in those proceedings, and the requirement that collateral challenges be brought within the guardianship as adversary proceedings.

The background is well known. Theresa Schiavo had been in a persistent vegetative state for nearly a decade. Her husband Michael, as guardian, filed a petition asking the guardianship court to authorize discontinuation of life-prolonging procedures. Critically, he appropriately requested the court to treat the petition as an adversary proceeding pursuant to Florida Probate Rule 5.025. Her parents, the Schindlers, were interested persons who participated in that adversary proceeding. After full evidentiary hearing, the court authorized discontinuation. That order was affirmed on appeal.

The court held several things critical to Rule 5.025 doctrine. First, an adversary proceeding within a guardianship is comparable to any other civil lawsuit — it has a beginning and an end that is separate from the ongoing guardianship proceeding. Second, because the original proceeding was tried as a full adversary proceeding with the civil procedure rules governing, the standards of Rule 1.540 for post-judgment relief applied — with strict one-year deadlines for newly discovered evidence and fraud claims. Third, and most fundamentally: any independent action challenging the final order of the guardianship court must itself be filed as an adversary proceeding within the guardianship. The Schindlers could not run to a separate civil division judge to obtain an injunction overriding the guardianship court’s final order. That violated the basic rule that one trial judge cannot review the final order of another. Whatever post-judgment challenge was available had to be brought inside the guardianship, as an adversary proceeding.

When the Schindlers later sought to challenge the order — first by motion for relief from judgment in the guardianship, then by filing a separate civil action in the general civil division — the Second District was required to work through the consequences of having conducted the original proceeding as a Rule 5.025 adversary proceeding.

Why does this case matter? Because it illustrates at the highest possible stakes what it means to have conducted a proceeding as an adversary under Rule 5.025. The rule doesn’t just import civil procedure norms temporarily. It incorporates the full architecture of civil litigation — including all of its post-judgment finality doctrine — into the probate or guardianship proceeding. Once you are in adversary proceeding territory, you play by civil rules completely, including on the back end.

The seventh case is Snell v. Guardianship of Snell, 915 So. 2d 709, from the First District, decided in 2005.

This case is a short but sharp application of the formal notice doctrine — and it makes a particularly important point: the fact that some formal notice was given about a hearing does not satisfy Rule 5.025 if the notice did not specifically advise the respondent that a surcharge was at issue.

The First District reversed the surcharge portion. Following Taylor and Merkle, the court held that the formal notice requirement is not satisfied by notice of a related hearing on a different matter. Notice of the fee petition hearing was not notice of a potential surcharge proceeding. The surcharge was an adversary proceeding in its own right, requiring its own formal notice. Because the mother had never raised surcharge in any pleading directed to the fee petition, and because there was no discussion of surcharge at the hearing, the appellant had no warning it was coming. The surcharge provisions were reversed without prejudice to the mother seeking surcharge through properly noticed adversary proceedings.

The facts: Bruce Snell filed a petition to have his mother declared incapacitated and was appointed emergency temporary guardian. After a full adversarial hearing, the court found the mother was not incapacitated and terminated the guardianship. The guardian’s lawyers then filed a petition for attorneys’ fees. The mother objected. A hearing was noticed on the fee petition. Snell did not attend. At the hearing, without any prior pleading or notice about surcharge, the court ordered Snell to repay fees already paid to his own attorneys — a net order against him of over $7,600.

Why does this case matter? Because it establishes that Rule 5.025’s formal notice requirement cannot be satisfied by proximity. You cannot notice a hearing on Issue A and then drop a surcharge on a fiduciary at the hearing without ever having told them that Issue B — their personal financial liability — was also on the table.

The eighth case is Hays v. Lawrence, 1 So. 3d 1176, from the Fifth District, decided in 2009.

The facts: Hays and Wiedenbeck filed a petition for administration, claiming a handwritten document was the decedent’s last will. On the same day they filed their petition, they also filed a formal declaration that the proceeding was adversary under Rule 5.025(b). The case was tried as an adversary proceeding. They lost. They appealed and lost again. Then, seven months after the final order, their attorneys filed a petition for attorneys’ fees. Appellees moved to strike it as untimely — Rule of Civil Procedure 1.525 requires fee motions to be filed within thirty days of final judgment. Appellants responded by arguing that the civil rules didn’t apply — that the proceeding wasn’t really adversary.

This case gives us the clearest statement of the flip side of the Beeman principle: when a party has declared a proceeding adversary and it has been tried as such, that party cannot later disclaim the adversary status to escape civil procedure consequences they find inconvenient.

The Fifth District was not impressed. It distinguished Beeman — the key case in Beeman was that the proceeding had never been designated adversary, so the civil rules never applied. Here, the appellants themselves had declared the proceeding adversary before anyone else did, and it had been tried in full adversary mode. You cannot unring that bell. The civil rules applied from the moment of declaration, the fee motion was seven months late, and the dismissal was affirmed.

Why does this case matter? Because it closes the loop on the designation mechanism. Rule 5.025(b) allows any party to declare a proceeding adversary. Once that declaration is made and the proceeding is conducted accordingly, the declarant is bound by all the consequences of civil procedure — including its deadlines. The adversary designation is a one-way door in the direction of civil procedure.

The ninth case is Dempsey v. Dempsey, 899 So. 2d 1272, from the Second District, decided in 2005.

This case makes a more technical but important point about where the line falls within elective share proceedings — specifically, which portions of those proceedings are adversary and which are not.

The facts: the decedent’s widow timely elected to take an elective share. The personal representative objected. After a hearing, the probate court entered an order determining that the widow was entitled to the elective share. The personal representative appealed.

The Second District dismissed the appeal for lack of jurisdiction. The reason comes directly from the structure of Rule 5.025. An elective share proceeding has two steps under Rule 5.360. The first step — determining entitlement — is not one of the specifically designated adversary proceedings in Rule 5.025(a). The second step — determining the amount, identifying the assets, and calculating contribution — is specifically listed as an adversary proceeding. Because the court had only completed step one, the order was nonfinal and nonappealable. The adversary proceeding — and with it, the appealable final order — only arises at step two.

Why does this case matter? Because it shows that Rule 5.025’s adversary designation is not all-or-nothing within a single type of proceeding. A complex proceeding like an elective share can be partly non-adversary and partly adversary, depending on which phase you are in. Knowing which phase you are in determines your appellate rights.

The tenth case is Kozinski v. Stabenow, 152 So. 3d 650, from the Fourth District, decided in 2014.

This is the most sophisticated recent case on Rule 5.025, and it addresses a question that had grown increasingly important as fee disputes in estates and trusts became more complex and more expensive: Is a petition for review of compensation under section 733.6175 — seeking a refund or surcharge — an adversary proceeding requiring formal notice?

The facts: Kozinski served as both trustee and personal representative of her mother’s estate. Her co-beneficiary sisters filed a petition in the probate case challenging the compensation she had paid to herself and to her law firm. They asked the court to determine the reasonableness of the fees and to “enter such surcharge or disgorgement orders as are warranted.” The petition was served on Kozinski’s counsel by email — not by formal notice. Kozinski moved to dismiss for lack of personal jurisdiction. The trial court denied the motion.

The Fourth District reversed. The court held that a petition seeking a refund or surcharge against a fiduciary individually — requiring them to return money to the estate from their personal funds because of alleged excessive compensation — is tantamount to a judgment for money damages and requires personal service by formal notice under Rule 5.025. The court worked through the case law defining surcharge — drawing on Merkle, Taylor, and others — to hold that a petition under section 733.6175 seeking immediate return of alleged overpayments is, in substance, a surcharge proceeding, regardless of the statutory label attached to it.

Critically, the court also articulated clearly that Rule 5.025 provides three independent mechanisms for adversary status: automatic designation under subsection (a) for listed proceedings, court order under subsection (b), and party declaration under subsection (b). The only mechanism at issue in this case was automatic designation. And because a surcharge of a personal representative is on the automatic list, no further designation was needed. Formal notice was mandatory. Without it, the court had no personal jurisdiction over Kozinski individually.

Why does this case matter? Because fee disputes involving alleged overcompensation of fiduciaries have become among the most heavily litigated issues in probate. This case makes clear that you cannot collapse those proceedings into routine administrative motions. When you are seeking to impose personal financial liability on a fiduciary for breach of duty — whatever you call it — you are in adversary proceeding territory, and formal notice is the price of admission.

So what is the through-line across all these cases?

Rule 5.025 does something deceptively simple: it divides the probate world into adversary and non-adversary proceedings and says that adversary proceedings are governed by the civil rules. But the case law reveals three deep and recurring tensions that courts have been working out for over forty years.

The first tension is between substance and form. Courts consistently hold that what matters is the nature of what is being sought — not what you call it, not whether you formally invoked the adversary label. If you are trying to take money out of a fiduciary’s pocket, or remove a fiduciary, or contest a will, you are in adversary proceedings whether or not anyone said so. Mangasarian and Merkle make this point from opposite directions.

The second tension is between flexibility and finality. Beeman gave courts flexibility — if a proceeding wasn’t designated adversary, the civil rules didn’t apply and the trial court could move on from final orders quickly. But that same flexibility becomes a trap. The adversary framework imports not just civil procedure rights but civil procedure finality, deadlines, and limitations. Schiavo and Hays show what happens when parties try to escape that finality after the fact.

The third and most consistent theme is formal notice as a constitutional floor. Taylor, Merkle, Snell, and Kozinski all reach the same result: before you can impose personal financial liability on a fiduciary through an adversary proceeding, that fiduciary must receive formal notice — not email service, not notice of a related hearing, not constructive notice, not anything short of the actual formal notice required by Rule 5.025(d). This is not a technicality. It is the mechanism by which the probate court acquires personal jurisdiction over the individual. Without it, the order is void.

Those ten cases, taken together, give you the complete jurisprudential framework of Florida Probate Rule 5.025.