Is It Possible to Re-Open Probate?
What Is Probate?
Probate is the legal process of gathering and distributing the assets of a person who has died (also called a “decedent”). Probate assets are those in the decedent’s name alone. Many assets, such as those held in a trust or proceeds from an insurance policy with a named beneficiary, will pass outside of the probate process. If a decedent had a last will and testament, the personal representative they named will initiate the probate process. If they died without a will, a personal representative will be appointed in accordance with state law.
When Can Probate Be Re-Opened?
Whether probate can be re-opened depends on the unique circumstances of the particular probate process and the applicable state laws. Grounds for reopening probate, as well as deadlines for doing so, vary from state to state.
In Maryland, administrative probate is overseen by the Register of Wills and is appropriate for uncontested wills. Judicial probate is overseen by the Orphan’s Court and handles more complex situations, such as when a will is contested, damaged in a way that changes its meaning, or when more than one qualified person applies to be the personal representative.
Judicial probate can be requested prior to, or within six months of, administrative probate. Otherwise, the results of administrative probate are final and binding as to all interested persons.
As in many other states, the circumstances for re-opening probate in Maryland are narrow. Under §5–304(b) of Maryland’s Estates and Trusts Article, an administrative probate may be set aside and a proceeding for judicial probate instituted if, following a request by an interested person within 18 months of the death of decedent, the court finds that:
- The proponent of a later offered will, in spite of the exercise of reasonable diligence in efforts to locate any will, was actually unaware of the existence of a will at the time of the prior probate;
- The required notice was not given to such interested person nor did he have actual notice of the petition for probate; or
- There was fraud, material mistake, or substantial irregularity in the prior probate proceeding.
Similarly, under §5–407, judicial probate may be reopened and a new proceeding held if, following a request by an interested person within 18 months from the death of the decedent, the court finds any of the three grounds enumerated in §5-304(b).
Under §733.903 of Florida’s Estates and Trusts Code, if additional assets are discovered after the estate has been closed and the personal representative has been discharged, an interested party can petition for further administration of the estate so that the court can dispose of these assets. Typically, the final accounting and other documents necessary to close the estate are due within 12 months of either the court issuing Letters of Administration or the date the estate’s tax return is due. Unless required, the court need not revoke the order of discharge, or reissue letters of administration when it permits subsequent administration under §733.903.
Typically, Florida courts will only revoke a final discharge and reopen an estate where fraud or serious irregularities occurred. For example, if a personal representative fails to disclose a more recent will and possible beneficiary, or if the personal representative fails to disclose that the testator had been declared incompetent before the will was signed.
Under §733.901, the personal representative of an estate is discharged after administration is complete, and any action against the personal representative is barred as a result. The statute also states that discharge cannot be revoked because a will, or more recent will, was discovered.
However, Florida courts have made clear that §733.901 is not an absolute bar to suits against personal representatives after discharge. In Sims v. Barnard (Fla. Dist. Ct. App. 2018), the court notes that “The bar will not be applied to a suit for fraud by concealment, where its application ‘would permit a fiduciary to benefit from its alleged wrongful acts if it could conceal them for the statutory period.'” For example, a suit would not be barred where a personal representative concealed the true value of an estate from a decedent’s heirs and concealed the identities of the heirs from the court, preventing them from asserting their claims or objections prior to discharge. Likewise, there would be no bar if a personal representative intentionally concealed an estate asset or distribution from the court or interested party.
Consulting an Experienced Attorney
It is important to speak with an experienced probate attorney in your state about your legal options. For years, Bethany G. Shechtel, Esquire has guided her clients through the estate planning process. If you have any questions about probate in Maryland or Florida, contact BGS Law, LLC.