In short: In Anderson v. Estate of Quintero, a Miami-Dade probate court rejected a claimed lost will and ruled the estate would pass by intestacy, and the proponent never timely appealed that order. When she came back with a new version of the same will, the court refused to hear it. On January 31, 2024, the Third District affirmed in a written opinion: the earlier ruling was law of the case, and her motion for relief was filed after the one-year deadline.
The Facts
Mario Quintero died in Miami-Dade County. In November 2020, Eva Maria Anderson, described in court filings as his step-granddaughter, petitioned to establish a document as his lost will. On August 17, 2021, the probate court found that will invalid because it was not properly witnessed and its notarization was defective, and it ruled the estate would proceed as intestate.
Anderson did not appeal that order. She appealed a later homestead order that repeated the intestacy finding. In Anderson v. Estate of Quintero, 374 So. 3d 67 (Fla. 3d DCA 2022), the Third District held it had no jurisdiction to review the intestacy ruling because the appeal was late, and it affirmed the denial of her first motion for relief under Florida Rule of Civil Procedure 1.540(b).
Anderson then filed a renewed petition. In November 2022 she offered a second version of the will, a computer copy with the signature and notarization removed but the same terms, supported by testimony from the person who said she prepared it. She also moved in September 2022 to vacate the intestacy finding based on new evidence. The probate court treated the first appeal as law of the case and denied the renewed petition.
At oral argument, the points below are what the lawyers argued, not findings by the court.
- Anderson argued that Florida law lets a will be offered at any time until the estate is closed and the personal representative discharged, so an earlier intestacy finding could not shut the door on a different will.
- She argued an unsigned correct copy, authenticated by the drafter and the notary, can make a prima facie case for a lost will, and that her filings should be treated as a timely rule 1.540(b) motion.
- The estate argued the intestacy order was final and unappealed, that it could not be revisited without being vacated, and that the motion did not meet rule 1.540(b).
- The panel pressed the estate on the statutory deadline for offering a will and pressed Anderson on whether the second document was really a different will.
The Decision
The Third District affirmed on January 31, 2024, in a written opinion. It agreed with Anderson on the general rule: a lost will may be offered at any time before the estate is discharged, and this estate was still open.
But the court held that Anderson was not offering a second lost will. The new version was substantially the same document with the same terms, so the probate court’s August 2021 ruling that this will was invalid stood as law of the case. Because the court had no jurisdiction to review that ruling in the first appeal, it could not be relitigated in the second.
The court also held the September 2022 motion to vacate was untimely. A motion under rule 1.540(b)(2) based on newly discovered evidence must be filed within one year of the order. The deadline for the August 17, 2021 order ran in August 2022, and the later order repeating the intestacy finding did not restart the clock. Both sides’ motions for rehearing were denied on March 15, 2024.
A related appeal by Anderson’s lawyers, challenging an award of attorney’s fees entered against them as a sanction, was affirmed on September 11, 2024 (No. 3D23-1416), and the Florida Supreme Court declined review of that decision on February 4, 2025 (No. SC2024-1758).
The Law
Section 733.207 lets an interested person establish the full and precise terms of a lost or destroyed will. The contents must be proved by two disinterested witnesses, or, if a correct copy is provided, by one disinterested witness.
Section 733.208 allows a later-discovered will to be offered and bars any will from being offered after the estate has been fully administered and the personal representative discharged. Anderson also relied at argument on section 733.903.
Under Florida Probate Rule 5.025, a proceeding to establish a lost will is an adversary proceeding, so the Florida Rules of Civil Procedure apply, including rule 1.540(b) and its one-year limit for relief based on newly discovered evidence. Both sets of rules are on floridarules.net.
Florida Rule of Appellate Procedure 9.170 makes many probate orders appealable when entered, and in the first appeal the Third District treated the intestacy order as one of them. Missing that 30-day window is what made the first ruling permanent here.
Lessons
- If the probate court rejects your will and rules the estate intestate, appeal that order within 30 days. A later order that repeats the finding will not give you a second chance.
- A lost will must be proved with the evidence section 733.207 requires. A defective original does not become valid by removing the signature and offering it as a copy.
- Rule 1.540(b) motions based on new evidence have a hard one-year limit. Count from the original order, not from a later order that repeats it.
- Repeated filings on a losing position can lead to fee sanctions, as the related appeal in this estate shows.
Source: Anderson v. Estate of Quintero, No. 3D23-0054 (Fla. 3d DCA Jan. 31, 2024); Fla. 3d DCA docket; earlier opinion: Anderson v. Estate of Quintero, 374 So. 3d 67 (Fla. 3d DCA 2022).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
📜 Intestacy Order Already Final — Can a Lost Will Still Be Probated? Florida 3rd DCA Appeal
Go Deeper
- A Photocopied Will, No Disinterested Witness: Lost Will Rejected on Appeal (Pilak v. Reigel)
- "With Prejudice" Isn't Final If the Petition Wasn't Dismissed: Probate Appeals and Finality (Goldman v. Lewin)
- No Will, No Power of Attorney? What Happens to Florida Families Without an Estate Plan
Frequently Asked Questions
How do you prove a lost will in Florida?
Under section 733.207, the person offering the will must prove its full and precise terms by two disinterested witnesses, or by one disinterested witness if a correct copy is provided. The proceeding is an adversary proceeding governed by the civil rules.
Can a will be probated after the court has ruled the estate is intestate?
Generally, a will can be offered until the estate is fully administered and the personal representative is discharged. But in Anderson v. Estate of Quintero, the same will had already been rejected in an unappealed order, so the Third District held a second attempt was barred by law of the case.
How long do you have to appeal a probate order in Florida?
Thirty days from rendition for orders that are appealable under Florida Rule of Appellate Procedure 9.170. In Anderson, the proponent appealed a later order instead of the original intestacy ruling, and the court held it could not review the original.
Is there a deadline to ask a probate court to set aside an order for new evidence?
Yes. In an adversary proceeding, a motion under rule 1.540(b)(2) for newly discovered evidence must be filed within one year of the order. In Anderson, the motion came about three weeks late and was not considered.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate disputes and probate appeals from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
