In short: In Shearer v. Kushner (Fla. 3d DCA 2012), an objector argued that an order opening ancillary administration and appointing an ancillary personal representative in Miami-Dade ended his right to challenge it without due process. Both sides agreed the order was final. The Third District affirmed without opinion on October 17, 2012.
When someone who lived in another state or country owns Florida property, Florida opens an ancillary administration. Objections to that process have to be made carefully, and early.
The Case
As described at oral argument, the appellant objected to the opening of an ancillary administration and the appointment of an ancillary personal representative. The court had issued an order to show cause about appellate jurisdiction; both sides agreed the order was final because it ended the appellant’s right to challenge the administration. The appellant argued the process, a pending motion to dismiss followed by an order overruling all objections, didn’t satisfy due process (No. 3D11-3100).
The Result
The Third District affirmed without opinion on October 17, 2012. A per curiam affirmance (PCA) means the appellate court agreed with the result below without writing an opinion. It sets no precedent, and because there is no opinion, the Florida Supreme Court generally can’t review it. The issues described here are the ones argued; the court didn’t say which arguments it accepted.
How Ancillary Administration Works
- Florida requires ancillary administration when a nonresident decedent owned Florida property that must pass through probate (§ 734.102).
- The ancillary personal representative is usually the domiciliary representative, if qualified.
- For small estates, a simpler short-form ancillary procedure is available (§ 734.1025).
- Interested persons may object to the petition and to the person appointed. Orders that finally determine those rights are appealable within 30 days (Fla. R. App. P. 9.170).
Lessons
- File objections in writing, with evidence, and ask for a hearing.
- If the order finally determines your rights, the 30-day appeal clock starts.
Source: Shearer v. Kushner, No. 3D11-3100 (Fla. 3d DCA Oct. 17, 2012).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. The court affirmed without a written opinion, so nothing said at argument should be read as the court’s reasoning.
Ancillary Administration Opened Over His Objection — Was That Due Process?
Go Deeper
- Ancillary Probate in Florida: When an Out-of-State or Foreign Decedent Owns Florida Property
- Florida Probate Alert: 30-Day Rule for Probate Appeals
Frequently Asked Questions
What is ancillary administration in Florida?
A probate proceeding for Florida property owned by a nonresident decedent, under Chapter 734.
Can I object to an ancillary administration?
Yes. Interested persons may object to the petition and the appointment, preferably in writing with a hearing.
Is an order opening ancillary administration appealable?
If it finally determines an interested person’s rights, yes, within 30 days under Rule 9.170.
What happened in Shearer v. Kushner?
The Third District affirmed without opinion in 2012.
Talk to a Florida probate lawyer
Weidner Law, P.A. handles Florida probate litigation and appeals from St. Petersburg. If you need a probate appeal 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.
