Administering and distributing the estate of a deceased person in Florida can be a challenging task if there is a litigation process involved. Complaining beneficiaries or creditors may file a lawsuit against the personal representative or the estate itself, resulting in a time-consuming and stressful process.
In this article, you will understand the legal concept of “motion to strike” and its importance to probate litigation.
What is a Motion to Strike? – Explaining the Concept
The term “motion to strike” refers to a request made to a court that one party believes that an opposing party’s pleading or testimony is partly or wholly insufficient, immaterial, redundant, impertinent, or scandalous.
Florida Rules of Civil Procedure 1.140(f) specify that “a party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”
When a party to a lawsuit files a motion to claim, that individual is requesting the judge to remove the remove a pleading/testimony of the opposing party in part or its entirety. In probate litigation, the plaintiff is generally one of the parties with an interest in the estate.
Once the plaintiff files a suit, the defendant has a chance to respond to the claims presented in court and raise defenses. Subsequently, the court will proceed to assess the complaint and the defendant’s response to determine the outcome of the case.
A motion to strike is often used as a defense to remove part or all of a plaintiff’s complaint, but a plaintiff may also use it as a legal tool against a defendant in probate litigation. In both cases, inaccurate timing or poor delivery of a motion to strike may negatively affect a party’s chances to win in court.
Florida Probate Motion to Strike Claim – Taking a Closer Look
It is not hard to find probate litigation cases involving creditors’ claims. When a Florida resident dies with unpaid debts, the decedent’s estate is responsible for paying the owed amount. The personal representative (or executor) in charge of administering the state must notify creditors and verify the validity of each claim.
If a creditor is not paid, he may file a lawsuit against the estate to receive the amount due. In such cases, the personal representative may not request a motion to strike instead of objecting to the claim based on feasible evidence.
As specified by Florida Statutes §733.705 (2), “on or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later, a personal representative or other interested person may file a written objection to a claim.”
The same statute adds that “objection to a claim constitutes an objection to an amendment of that claim unless the objection is withdrawn.” Florida case law (Fernandez-Fox v. Estate of Lindsay) demonstrates that a motion to strike does not qualify as an objection to a creditor’s claim in Florida probate proceedings.
Probate Does Not Need to be Overwhelming – Immediately Seek Expert Legal Guidance
A well-versed legal advisor in Florida probate law, Attorney Romy B. Jurado willingly wants to help you find a legal solution. Contact us today by calling (305) 921-0976 or emailing [email protected] to schedule a consultation.