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Who is an Interested Person?

December 1, 2021 in News

What Executors Must Do to Close a Person's Estate in Florida | DeLoach,  Hofstra & Cavonis, P.A.

It is important to know who is considered an interested person in Florida estate administrations, trusts, and guardianship matters.  This is true for both any person who may have a legal interest in a probate, trust, or guardianship, who wishes to exercise their rights and protect their interest, and for a Personal Representative, Trustee, or Guardian who needs to provide notice to interested persons or dispute wrongful attacks from a person who would not be considered interested in the matter.

The Florida Probate Rules require that interested persons receive notice. “Unless the court orders otherwise, every petition or motion for an order determining rights of an interested person, and every other pleading or document filed in the particular proceeding which is the subject matter of such petition or motion, except applications for witness subpoenas, shall be served on interested persons . . . .” Fla. Prob. R. 5.041.

Section 731.201(23), Fla. Stat. defines an interested person as follows:

“Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

Pursuant to the statute, this definition applies to the Probate Code, Florida Trust Code, and Florida Guardianship Law. As one can see in the last sentence of the statute, the definition can be somewhat nebulous, and the determination may be left to a court’s discretion.

For example, in an estate administration (probate), any interested person “may petition for administration” (§ 733.202, Fla Stat.), “may petition the court to determine beneficiaries or their shares” (§ 733.105(1)(b), Fla Stat.), and “may commence a proceeding to revoke the probate of a will before final discharge of the personal representative” (§ 733.109, Fla. Stat.). For purposes of seeking to revoke a will, an interested person specifically includes a beneficiary under a prior will.

Beneficiaries under a will are certainly interested persons, however, a beneficiary who has already received their complete distribution under a will is no longer considered an interested person. Also, a personal representative, while defined as an interested person by statute, cannot contest the will which appoints that personal representative and where the personal representative has qualified to serve. If a personal representative did file such a contest, the personal representative would immediately be disqualified from continuing to serve. In re Estate of Lewis, 411 So. 2d 368 (Fla. 4th DCA 1982).

Under the Florida Trust Code, an interested person may invoke a court to intervene in a trust administration by filing a complaint pursuant to the Florida Rules of Civil Procedure. § 736.0201(2), Fla Stat. Interested persons may also apply to the court to modify or reform a trust in certain circumstances. Pursuant to § 736.0416, Fla. Stat. an interested person may petition the court to modify the terms of a trust to achieve the settlor’s tax objectives. Under § 736.0415, Fla. Stat. and interested person may petition the court to reform the “terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.”

In regard to nonjudicial settlement agreements under the Florida Trust Code, the statue specifically defines interested persons to mean “persons whose interest would be affected by a settlement agreement.” § 736.0111(1), Fla. Stat.

With respect to Guardianships, an alleged incapacitated person’s or ward’s next of kin are interested persons. Fla. Prob. R. 5.550 requires a petition to determine incapacity to be “served upon all next of kin of the alleged incapacitated person.” Under Florida Guardianship Law, “next of kin” is defined as “those persons who would be heirs at law of the ward or alleged incapacitated person if the person were deceased and includes the lineal descendants of the ward or alleged incapacitated person.” § 744.102(14), Fla. Stat.

Under Florida Statutes, in regard to a guardianship, an interested person may intervene in the proceedings regarding the appointment of a guardian (744.2005). Interested persons may also be involved with suspension of Power of Attorney before determination of incapacity 744.3203, filing objections to annual reports 411.367(4), petitions for authorization to act 744.447, restoration of capacity 744.464, and the removal of guardian 744.477, among other proceedings.

In Guardianships, in furtherance of public policy, interested persons are given an expansive opportunity to participate in the proceedings, with the goal of protecting the ward and bettering the ward’s welfare. See Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006) (“In guardianship proceedings, the overwhelming public policy is the protection of the ward.”); § 744.1012, Fla. Stat.

An interested person may be considered interested in some aspects of a Guardianship, but not others. For example, a Florida Court of Appeal found that a Ward’s son was an interested person for purposes of objecting to a Guardian’s actions, and could seek judicial review of the Guardian’s actions, but could not petition the Court directly to take action. Bivens v. Rogers, 147 So. 3d 381 (Fla. 4th DCA 2014).

Similarly, a person may be considered an interested person in a guardianship proceeding, but not in regard to a trust. In In re Guardianship of Trost, 100 Se. 3d 1205 (Fla. 2d DCA 2012), A Ward’s son, as next of kin, was entitled to copies if initial and annual guardianship accountings, reports, and plans, but was not entitled to trust documents, as he was not a beneficiary and had no other legally cognizable interest in the trust.

When it comes to estates, trusts, and guardianships, we can help. Call the Elder Law Center of Kirson and Fuller at 407-422-3017 to speak to one of our experienced attorneys, and we can assist you protect your rights and responsibilities.


Written by: Christian Fahrig


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