In Simmons v. Estate of Dr. Adrienne S. Baranowitz, et.al., the 4th DCA set aside a circuit court’s order directing the personal representative’s counsel to disgorge fees which the court determined to be excessive. In this case, the trustee of the decedent’s trust filed an objection to the personal representative’s accounting and a petition to review the compensation which the personal representative and his counsel received. The court held an evidentiary hearing on the petition at which the personal representative, through counsel, argued that the court lacked personal jurisdiction over counsel, because such counsel was not a party, in that, it had not been served with Formal Notice as required under the Florida Probate Rules. Although counsel did receive the petition and argued against the merits of the petition at the evidentiary hearing, the 4th DCA determined that the order was invalid because Formal Notice of a petition to require a party to disgorge funds is required.
The requirements of Formal Notice are set forth in Rule 5.040(a) of the Florida Probate Rules. Formal Notice essentially requires that a party be served with a notice, along with the motion or pleading in question, that the interested party served must respond with written defenses within 20 days after service or an order or judgment may be rendered for the relief requested. Formal Notice also requires that the notice and motion or pleading be served in a manner set forth in the Rule, which is designed to ensure delivery to the party in question.
The 4th DCA recognized that the court certainly had authority to review the propriety of the compensation paid to counsel under F.S. § 733.6175, but insisted that Formal Notice must be provided. The 4th DCA then remanded the case to the trial court for further proceedings following service by Formal Notice. Although it is likely that the circuit court has or will render a similar decision after a hearing following Formal Notice on the personal representative’s counsel, a tremendous amount of expense and delay was likely incurred as a consequence of the failure to follow the rules concerning Formal Notice.