In re Florida Rules of Probate & Guardianship Procedure (324 So. 2d 38, 1975)

Citations

324 So. 2d 38

Full opinion text

PER CURIAM.

• Appended to this opinion are new Rules of Probate and Guardianship Procedure.

These new rules are necessitated by the new Florida Probate Code and Florida Guardianship Law, as amended, which be- ' comes effective January 1, 1976.

These rules shall govern all proceedings within their scope from and after 12:01 a. m., January 1, 1976. All present Rules of Probate and Guardianship Procedure are hereby superseded as of said date.

Petition was filed in this Court on December 8, 1975. Notice was given of an immediate 'hearing for temporary adoption of these rules to individuals having an interest in the rules and being representative of both the legislative and judicial branches and the appropriate committees of The Florida Bar. Hearing was held on December 10, 1975. .This Court is required to act immediately without the usual notice procedure because of the January 1, 1976 effective date of the new Florida Probate Code.

In adopting these rules, we consider them transitional and temporary in nature, and request the Probate and Guardianship Rules Committee of The Florida Bar and other interested parties to file any appropriate suggestions or objections on or before June 15, 1976.

Copies of these rules will be distributed immediately to judges serving in probate and to the respective law libraries in the state.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.

APPENDIX

IN RE: CHANGES IN PROBATE AND GUARDIANSHIP RULES

PETITION OF THE FLORIDA BAR

The Florida Bar respectfully shows:

1. That pursuant to the request for the preparation of new probate and guardianship rules required as a result of the enactment of' the Florida Probate Code which becomes effective January 1, 1976, the Probate and Guardianship Rules Committee of The Florida Bar has prepared a complete set of rules which have been heretofore approved by the Committee and also by the Board of Governors of The Florida Bar.

2. The proposed new probate and guardianship rules are attached to this petition and consist of the following rules:

3. The Florida Bar, through its Board of Governors, urges the prompt consideration of these rules.

Respectfully submitted,

THE FLORIDA BAR

By: (s) J. Rex Farrior, Jr.

J. Rex Farrior, Jr.

President

By : (s) James J. Altman_

James J. Altman, Chairman

Probate and Guardianship Rules Committee

PROBATE AND GUARDIANSHIP RULES

FOREWORD

The reason for the change in the Probate and Guardianship Rules is to conform to the Florida Probate Code and the Florida Guardianship Law, as amended.

In some instances the rules contain the exact wording of a particular statute or sections of it. This was done for clarity and continuity in the rules and to attempt to give the court' and the practitioner a more complete coverage of the pertinent provisions of the subject matter in one source.

INDEX

PART I — GENERAL:

S.010. SCOPE

5.015. GENERAL DEFINITIONS

5.020. PLEADINGS; VERIFICATION ; COPIES

5.025. ADVERSARY PROCEEDINGS

5.030. ATTORNEYS

5.040. NOTICE; METHOD AND TIME; PROOF

5.050. VENUE

5.060. REQUEST FOR NOTICES AND COPIES OF PLEADINGS

5.070. SUBPOENA

S.080. DEPOSITIONS AND DISCOVERY

5.090. ALLOCATION OF COSTS, EXPENSES, FEES AND COMMISSIONS

5.100. RIGHT OF APPEAL

5.110. RESIDENT AGENT

5.120. ADMINISTRATOR AD LITEM AND GUARDIAN AD LITEM

5.150. ORDER REQUIRING ACCOUNTING

5.160. PRODUCTION OF ASSETS

5.170. EVIDENCE AS TO DEATH OR STATUS

5.175. VIRTUAL AND OTHER REPRESENTATION

5.180. NOTICE; WAIVER

PART II — PROBATE:

5.190. DEFINITIONS

5.200. PETITION FOR ADMINISTRATION

5.210. PROOF OF WILLS

5.230. COMMISSION TO PROVE WILL

5.240. NOTICE OF ADMINISTRATION; FILING OF OBJECTIONS AND CLAIMS

5.260. CAVEAT; PROCEEDINGS

5.270. REVOCATION OF PROBATE

5.280. PROBATE OF WILL WRITTEN IN FOREIGN LANGUAGE

5.290. PROBATE OF NOTARIAL WILL

5.310. DISQUALIFICATION OF PERSONAL REPRESENTATIVE; NOTIFICATION

5.320. OATH OF PERSONAL REPRESENTATIVE

5.330. EXECUTION BY PERSONAL REPRESENTATIVE

5.340. INVENTORY

5.345. ELECTION OF FISCAL YEAR; INTERIM ACCOUNTINGS; OBJECTIONS TO INTERIM AC-COUNTINGS

5.350. CONTINUANCE OF BUSINESS OF DECEDENT

5.360. DUTY TO PAY ELECTIVE SHARE

5.370. SALES OF REAL PROPERTY WHERE NO POWER CONFERRED

5.380. PROCEEDINGS FOR COMPULSORY PAYMENT OF DEVISES OR DISTRIBUTIVE INTEREST

5.390. PARTITION FOR PURPOSE OF DISTRIBUTION

5.400. DISTRIBUTION; FINAL DISCHARGE

5.410. EXEMPT ESTATES

5.420. DISPOSITION WITHOUT ADMINISTRATION

5.430. RESIGNATION OF PERSONAL REPRESENTATIVE

5.440. PROCEEDINGS FOR REMOVAL

5.450. ADMINISTRATION FOLLOWING DEATH; RESIGNATION OR REMOVAL

5.460. SUBSEQUENT ADMINSTRATION

5.470. ANCILLARY ADMINISTRATION

5.480. FORM; FILING; RECORDING AND SERVICE OF DISCLAIMER INSTRUMENTS

5.490. FORM AND MANNER OF PRESENTING CLAIM

5.500. PROBATE OF WILL OF RESIDENT AFTER FOREIGN PROBATE

5.510. ESTABLISHMENT AND PROBATE OF LOST OR DESTROYED WILL

5.520. PETITION FOR FAMILY ADMINISTRATION

5.530. SUMMARY ADMINISTRATION; PETITION; HEARING AND DISTRIBUTION

PART III — GUARDIANSHIP:

5.540. DEFINITIONS

5.550. PETITION FOR ADJUDICATION OF INCOMPETENCY

5.560. PETITION FOR APPOINTMENT OF GUARDIAN

5.570. NOTICE: ADJUDICATION OF INCOMPETENCY AND APPOINTMENT OF GUARDIAN

5.590. DISQUALIFICATION OF GUARDIAN: NOTIFICATION

5.600. OATH

5.610. EXECUTION BY GUARDIAN

5.620. INVENTORY; APPRAISALS

5.630. PETITION AND NOTICE FOR APPROVAL OF ACTS

5.640. CONTINUANCE OF BUSINESS OF WARD

5.650. RESIGNATION OF GUARDIAN AND APPOINTMENT OF SUCCESSOR

5.660. PROCEEDINGS FOR REMOVAL OF GUARDIAN

5.670. TERMINATION OF GUARDIANSHIP ON CHANGE OF DOMICILE OF RESIDENT WARD

5.680. TERMINATION OF GUARDIANSHIP UPON REMOVAL OF WARD’S INCAPACITY, DEATH OR'EXHAUSTION OF ASSETS

5.690. ANNUAL ACCOUNTINGS

5.700. OBJECTIONS TO ANNUAL AC-COUNTINGS

PROBATE AND GUARDIANSHIP RULES

PART I — GENERAL'

RULE 5.010. SCOPE

These rules govern the procedure in all probate and guardianship proceedings and shall be known and cited as the Rules of Probate and Guardianship Procedure and may be abbreviated as “PGR”. Part I of these rules applies to both probate and guardianship procedure. Part II applies to probate alone and Part III to guardianship alone. The Rules of Civil Procedure apply only as provided herein.

Rule 5.010. Committee Note:

These rules shall govern the procedures to be followed in all matters pending on or commenced after January 1, 1976, including procedures for the enforcement of substantive rights that have vested before that date. See FPC 731.011.

PROPOSED RULE

RULE 5.015. GENERAL DEFINITIONS

Words not defined in these rules shall have the meanings as defined in the Florida Probate Code and Florida Guardianship Law, as amended from time to time. (See PGR 5.190 and 5.540.)

Rule 5.015. Committee Note:

This is intended to simplify drafting of these rules and should be liberally construed. See PGR 5.190 and 5.540 and also PFC 731.201 and FGL 744.102.

PROPOSED RULE

RULE 5.020. PLEADINGS; VERIFICATION; COPIES

(a) Forms of Pleading. Pleadings shall be signed by the attorney of record, and by the pleader when required by these rules. All technical forms of pleadings are abolished. No defect of form impairs substantial rights, and no defect in the statement of jurisdictional facts actually existing renders any proceeding void.

(b) Petition. The petition shall contain' a short and plain statement of the relief sought, the grounds therefor, and the jurisdiction of the court where the same has not already been shown.

(c) Verification. When verification is required by these rules or the FPC, the document filed shall include an oath, affirmation or the following statement':

“Under penalties of perjury, I declare that I have read the foregoing and the facts alleged are true to the best of my knowledge and belief.”

(d) Copies. In adversary proceedings, or when otherwise required by these rules, copies of all pleadings and motions shall be served on the attorney of record of each interested person, and on each interested person not represented by an attorney of record.

Rule 5.020. Committee Note:

Subparagraphs (a), (b) and (d) substantially the same as subparagraphs (a), (b) and (f) of prior PGR 5.030. Subpara-graph (c) taken from FPC 731.104. For adversary proceedings see new PGR 5.025.

PROPOSED RULE

RULE 5.025. ADVERSARY PROCEEDINGS

(a) The following shall be deemed adversary proceedings :

(1) Proceedings to revoke a will, probate a lost or destroyed will, probate a later-discovered will, determine beneficiaries, construe a will, cancel a charitable bequest, petition property for the purposes of distribution, elect and lay off the elective share; and

(2) Any other proceeding which shall be determined by the court to be an adversary proceeding.

(b) In adversary proceedings:

(1) The moving party shall give formal notice to all interested persons.

(2) After service of formal notice, such proceedings as nearly as practicable shall be conducted similar to suits of a civil nature and the Rules of Civil Procedure shall govern, including entry of defaults.

(3) Such proceedings shall be conducted to a conclusion so as not to unduly delay the main administration of the estate or guardianship and when such main administration is being unduly delayed, the court, upon motion of any interested person, in the estate or guardianship, may enter such reasonable orders as are necessary to prevent such undue delay.

(4) If a proceeding is already commenced when an order is entered determining the proceeding to be adversary, it shall thereafter be conducted as an adversary proceeding, but it shall not be necessary to recommence the proceeding.

Rule S.025. Committee Note:

This is a new rule implementing FPC 731.107. See also FPC 733.109(1) (b) and other specific provisions affecting adversary proceedings.

PROPOSED RULE

RULE 5.030. ATTORNEYS

(a) The provisions of Rule 1.030 RCP relating to attorneys shall apply. An attorney of record will not be permitted to withdraw from a case unless his withdrawal is sanctioned by the court. He may file his motion or petition for withdrawal in the couit setting forth his reasons therefor. A copy of said motion or petition shall be served on the client, on the resident agent, and any adverse party.

(b) Every guardian and every personal representative, unless the personal representative remains the sole interested party therein, shall be represented by an attorney admitted to practice in this state. If the guardian or personal representative is an attorney admitted to practice in this state, he may represent himself as guardian or personal representative.

Rule 5.030. Committee Note:

Subparagraph (a) is same as prior PGR 5.040 with added provision for withdrawal of attorney similar to Fla.Appellate Rule 2.3d (2). Subparagraph (b) reflects ruling in case of State ex rel. Falkner v. Blanton, Fla., 297 So.2d 825.

PROPOSED RULE

RULE 5.040. NOTICE; METHOD AND TIME; PROOF

(a) Formal Notice.

(1) When formal notice is required, the petitioner shall serve a copy of the petition or other pleading on any interested person or his attorney if he has appeared by an attorney or requested that notice be sent to his attorney, requiring the person served to file his written defenses to that petition within 20 days after service of such formal notice, exclusive of the day of service, and to serve a copy on petitioner’s attorney, and notifying the person served that failure to file' and serve written defenses within the time required may result in a judgment or order being entered in due course.

(2) If there is no written defense served on the petitioner within 20 days from the service of the petition, the petition shall be considered ex parte. If a written defense is served, a hearing shall be set and reasonable notice given.

(3) Formal notice shall be served:

a. By any form of mail requiring a signed receipt as follows:

1. On his attorney of record, if any, or to the post office address given in his demand for notice, if any;

2. On an individual other than an incompetent, by mailing a copy to his dwelling house or usual place of abode or to the place where he regularly conducts his business or profession ;

3. On an incompetent person, by mailing a copy to the incompetent, to the person haying custody of the incompetent, and to any legal guardian of the incompetent at their respective dwelling houses, usual places of abode or regular places of business or profession;

4. On a corporation by mailing a copy to the corporation at its last known address; or

b. As provided in Chapter 48, Florida Statutes; or

c. In the circumstances provided in Chapter 49, Florida Statutes, in the manner.provided therein.

(4) If service is made under Chapters 48 or 49, Florida Statutes, then proof of service shall be made as provided therein.

(5) If service is made by mail, then proof of service shall be by affidavit of the person mailing service, and there shall be attached to such affidavit the signed receipt or other evidence satisfactory to the court that delivery was made to, or refused by, the addressee or his agent.

(b) Informal Notice.

(1) When informal notice is required, it shall be served on the person or his attorney as provided in the Rules of Civil Procedure relating to service of pleadings.

(2) Proof of service shall be made by filing an attorney’s certificate of service or by affidavit if filed by a person who is not a member of The Florida Bar.

(3) Unless otherwise specifically provided, informal notice of every petition or proceeding affecting property rights or interests shall be given to interested persons. The requirement for giving of informal notice may be specifically waived by will or by the court upon good cause shown.

Rule 5.040. Committee Note:

Subparagraph (a) incorporates the provisions of FPC 731.301(1) (a)-(c) with editorial changes. The Committee considered that formal notice should require the filing and service of a written defense within 20 days after service, and the person served notified as to what might result should he fail to file and serve his defenses within the time required.

Subparagraph (b) incorporates the provisions of FPC 731.301(2) and 731.301(4). The .Committee included the provisions for specific waiver of informal notice.

Subparagraph (c) reflects the definition in FPC 731.201(20).

PROPOSED RULE

RULE 5.050. VENUE

When any proceeding is filed laying venue in the wrong county, the court may transfer the action in the same manner as provided in the Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected because of the improper venue.

Rule 5.050. Committee Note:

Same as FPC 733.101(3).

PROPOSED RULE

RULE 5.060. REQUEST FOR NOTICES AND COPIES OF PLEADINGS

(a) Any interested person who desires notice of proceedings in the estate of a decedent or ward may file a separate written request for notice of further proceedings, designating therein his residence and post office address. When such person changes his residence or post office address, a new designation of such change shall be filed in the proceedings. A person filing such request, or address change, shall also deliver a copy thereof to the clerk, who shall forthwith mail it to the attorney of the personal representative or guardian, noting on the original the fact of mailing.

(b) A party filing a request shall be served thereafter by the moving party with notice of further proceedings and with copies of subsequent pleadings and papers as long as the party is an interested person.

Rule 5.060. Committee Note:

This rule substantially incorporates the provisions of prior PGR 5.060 except that now a copy of the request shall be mailed by the Clerk only to the attorney for the personal representative or guardian. Even though a request under this rule has not been made, informal notice as provided in PGR 5.040(b) (3) may still be required.

PROPOSED RULE

RULE 5.070. SUBPOENA

The provisions of Rule 1.410 RCP shall apply in probate and guardianship proceedings.

Rule 5.070. Committee Note:

Same as prior PGR 5.070.

PROPOSED RULE

RULE 5.080. DEPOSITIONS AND -

. . . (a) The following rules of civil procedure shall apply in probate and guardianship proceedings:

(1) Rule 1.280, General Provisions Governing Discovery; .

(2) Rule 1.310, Depositions Upon Oral Examination;

(3) Rule 1.320, Depositions Upon Written Questions;

(4) Rule 1.330, Use of Depositions in Court Proceedings;

(5) Rule 1.340, Interrogatories to Parties;

(6) Rule 1.350, Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes ;

(7) Rule 1.360, Physical and Mental Examination of Persons;

(8) Rule 1.370, Requests for Admission;

(9) Rule 1.380, Failure to Make Discovery ; Sanctions;

(10) Rule 1.390, Depositions of Expert Witnesses; and

(11) Rule 1.400, Deposition Deemed Published when filed.

(b) In order to conserve the assets of the estate or the ward and the rights of the beneficiaries therein, the court has broad discretion to limit the scope of such examination and the place and manner of taking the same, and may assess the costs thereof to the party taking the same or to one or more of the beneficiaries of the estate or the ward in such proportions as the court determines, considering, among other things, the benefit derived therefrom.

Rule 5.080. Committee Note:

This rule is the same as prior PGR 5.-080, broadened to include guardianships, and is intended to clearly permit the use of discovery practices m non-adversary probate and guardianship matters.

PROPOSED RULE

RULE 5.090. ALLOCATION OF COSTS; EXPENSES; FEES AND COMMISSIONS

(a) In probate and guardianship proceedings, costs, expenses, fees and commissions may be allowed in the discretion of the court, ordinarily abiding the result of each particular proceeding, but otherwise when it would be unjust that the losing party pay costs.

(b) When costs and attorney’s fees are to be paid out of the estate, the court may, in its discretion, direct from what portion of the estate they shall be paid.

(c) The proponent of a will in due form, being prima facie justified in offering the same for probate, shall receive his costs and attorney’s fees out of the estate, even though he is unsuccessful.

Rule 5.090. Committee Note:

Substantially the same as prior PGR 5.-090 and implements FPC 733.106 except that no priority is given to nominated personal representative to act as proponent of will as provided in code.

PROPOSED RULE

RULE 5.100. RIGHT OF APPEAL

All orders and judgments of the court determining rights of any party in any particular proceeding in the administration of the estate of a decedent or ward shall be deemed final and may, as a matter of right, be appealed to the appropriate district court of appeal, except those appeals which may be taken directly to the Supreme Court as provided by Section 3, Article V of the State Constitution. Appeals provided by this rule, including the right to supersedeas, shall be governed by the Florida appellate rules.

Rule 5.100. Committee Note:

Same as prior PGR 5.100 with editorial changes.

PROPOSED RULE

RULE 5.110. RESIDENT AGENT

(a)Before letters are issued to a personal representative or a guardian, such personal representative or guardian shall file a designation of his place of residence, his post office address, and the name, place of residence, and post office address of a resident in the county where proceedings are pending, as his agent for the service of process or notice. The written acceptance of the person appointed shall also be filed. The designation and acceptance constitute the consent of the personal representative or guardian filing it that service of process or notice upon the designated agent shall be sufficient to bind the personal representative or guardian in any action against him, either in his representative capacity, or personally, if the personal action accrued in the administration of the estate or guardianship. The designation and acceptance may be incorporated in the petition for administration or for appointment of guardian if signed by the prospective personal representative or guardian, or in his oath. Corporate fiduciaries shall not be required to designate a resident agent.

(b) A member of The Florida Bar residing in Florida may be designated as the agent for service of process or notice, whether or not he is a resident of the county where the proceedings are pending.

(c) If the resident agent dies, resigns or is unable to act for any other reason, the personal representative or guardian shall appoint a successor agent within ten (10) days after he has notice that such event has occurred.

Rule 5.110. Committee Note:

Implements FPC 733.401(4) and is substantially the same as prior PGR 5.210, except that under prior rule, designation was required to be filed within 10 days after letters issued.

PROPOSED RULE

RULE 5.120, ADMINISTRATOR AD LITEM AND GUARDIAN AD LITEM

(a) When it is necessary that the estate of a decedent or a ward be. represented in any proceeding and there is no personal representative of the estate or guardian of the ward, or the personal representative or guardian is or may be interested adversely to the estate or ward, or is enforcing his own debt or claim against the estate or ward, or the necessity arises otherwise, the court may appoint an administrator ad li-tem or a guardian ad litem, as the case may be, without bond or notice for that particular proceeding. At any point in a proceeding, a court may appoint a guardian ad litem to represent the interests of an incompetent person, an unborn or unascer-tained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interest, a guardian ad litem may be. appointed to represent several persons or interests. The administrator ad litem or guardian ad litem shall file his oath to discharge his duties faithfully and upon the filing he shall be qualified to act. No process need be served upon him, but he shall appear and defend as directed by the court.

(b)The petition for appointment of a guardian ad litem shall be verified and shall state to the best of petitioner’s information and belief:

(1) The name and residence address of each minor or incompetent and birth date of each minor who has an interest in the proceedings;

(2) The name and address of any guardian appointed for each minor or incompetent ;

(3) The name and ■ residence address of any living natural guardians or living natural guardian having legal custody of each minor or incompetent;

(4) A description of the interest in the proceedings of each minor or incompetent ; and

(5)The facts showing the necessity for the appointment of a guardian ad li-tem.

(c) Within ten days after appointment, the petitioner shall deliver or mail conformed copies of the petition for appointment of a guardian ad litem and order to any guardian, or if there is no guardian, to the living natural guardians or the living natural guardian having legal custody of the minor or incompetent.

(d) The guardian ad litem shall deliver or mail conformed copies, of any written report or finding of his investigation and his answer filed in the proceedings, petition for compensation and discharge and the notice of hearing on the petition to any guardian, or in the event that there is no guardian, to the living natural guardian or the living natural guardian having legal custody of the minor or incompetent.

(e) Within ten days after appointment, the petitioner for an administrator ad litem shall deliver or mail conformed copies of the petition for appointment and order to the attorney of record of each beneficiary and to each known beneficiary not represented by an attorney of record.

(f) When an administrator ad litem or guardian ad litem recovers any judgment or other relief, it shall be enforced as other judgments. Execution shall issue in favor of the administrator ad litem or guardian ad litem for the use of the estate or ward and the money collected shall be paid to the personal representative or guardian, or as otherwise ordered by the court.

(g) An administrator ad litem or guardian ad litem shall be allowed reasonable compensation for his services fixed by the court that shall be taxed as costs pursuant to Rule 5.090.

(h) The fact that the personal representative is seeking reimbursement for claims against the decedent paid by the personal representative does not require appointment of an administrator ad litem.

Rule 5.120. Committee Note:

This rule implements FPC 731.303(5), FPC 733.308 and FGL 744.318 and includes some of the provisions of prior PGR 5.230.

PROPOSED RULE

RULE 5.150. ORDER REQUIRING ACCOUNTING

(a) When any personal representative or guardian fails or neglects to make a required accounting, the court shall order the personal representative or guardian to make such accounting within fifteen (15) days from the service upon him of such order, or show cause why he should not be compelled to do so. A copy of the order shall be served upon the personal representative or guardian. If the personal representative or guardian fails, neglects or refuses without good cause to file such accounting within the time specified by the order, the court shall issue an order forthwith directed to said personal representative or guardian to show cause why he should not be adjudged in contempt. If such personal representative or guardian fails to show just cause, the court may adjudge said personal representative or guardian to be in contempt of court, and he shall stand committed for contempt until he makes the accounting.

(b) Upon the application of any interested person, or upon its own motion, the court may require the personal representative to file an accounting and to make such settlements and distribution in whole or in part as is necessary for the proper administration of the estate.

Rule 5.150. Committee Note:

Implements FPC 733.901, and FGL 744.-326 and is substantially the same as prior PGR 5.330.

PROPOSED RULE

RULE 5.160. PRODUCTION OF ASSETS

Upon the petition of .any interested person, or upon its own motion, the court may require any personal representative or guardian to produce satisfactory evidence that the assets of the estate are in his possession or under his control and may order production of such assets for the inspection of such interested person or the court.

Rule 5.160. Committee Note:

Implements FGL 744.327, broadened to include personal representatives and substantially the same as prior PGR 5.340.

PROPOSED RULE

RULE 5.170. EVIDENCE AS TO DEATH OR STATUS

(a) In proceedings under the Florida Probate Code the rules of evidence in civil actions are applicable unless specifically changed by the Code. The following additional rules relating to determination of death and status are applicable:

(1) An authenticated copy of a death certificate issued by an official or agency of the place'where the death purportedly occurred is prima facie proof of the fact, place, date and time of death and the identity of the decedent.

(2) A copy of any record or report of a governmental agency, domestic or foreign, that a person is alive, missing, detained or, from the facts related, presumed dead, is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report.

(3) A person who is absent from the place of his last known domicile for a continuous period of five years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier.

Rule 5.170. Committee Note:

This is a new rule and is the same as FPC 731.103.

RULE 5.175. VIRTUAL AND OTHER REPRESENTATION

In proceedings involving estates of decedents or trusts, the following persons are bound by orders binding others in the following cases:

(a) The sole holder or all co-holders of a power of revocation or a presently exercisable general power of appointment (including one in the form of a power of amendment), and not the person whose interests (as objects, takers in default, or otherwise) are subject to the power, to the extent that their interests are so subject; and

(b) to the extent there is no conflict of interest between them or among the persons represented:

(1) The guardian of the property of the ward whose estate he controls, and not the ward;

(2) The trustee of the trust in proceedings to probate a will, in establishing or adding to a trust, in reviewing the acts of a prior fiduciary, and in proceedings involving creditors or other third parties, and not the beneficiaries of the trust;

(3) The personal representative of a decedent’s estate in actions or proceedings by or against the estate, and not the beneficiaries of the estate;

(4) The personal representative of the estate of a beneficiary or ward where the beneficiary or ward is deceased, and not the beneficiaries thereof;

(5)Another person of a class of beneficiaries having the same or greater quality of interest in the proceeding, when there is an unborn or unascertained person who is a member of a class of beneficiaries, and not the unborn or unascer-tained person;

shall be deemed the “interested person” for the purposes of these rules and for the purpose of this rule shall be known as a “representative person”. A person represented by a “representative person” shall be a “represented person”.

(d) Except as required by PGR 5.-040(a) (3) a.3., no notice or service of pleading is required , on the represented person, only the representative person.

(e) Except as required by PGR 5.-040(a) (3) a.3., representative persons may waive notice and service of pleading and give consents in writing on behalf of themselves and their represented persons.

(f) A represented person, by filing a statement in writing to such effect, may require that service be made on him in addition to the representative person and may also negate the right of the representative person to waive notice and give consents insofar as he is concerned. Such statement shall be served on the representative person, the personal representative and on any other represented persons similiarly situated. The filing of such statement shall in no way affect the validity of the proceedings up to such time.

(g) If the court determines that representation of the interest would otherwise be inadequate, the court may, at any time, appoint a guardian ad litem to represent the interests of an incompetent person, an unborn or unascertained person, or a person whose identity or address is unknown. If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests.

Rule 5.175. Committee Note:

This is a new rule implementing FPC 731.303.

PROPOSED RULE

RULE 5.180. NOTICE; WAIVER

A person, including a representative person and a guardian ad litem, administrator ad litem, guardian of the property, personal representative, trustee, or other fiduciary, may waive formal notice, informal notice, service and give consent in writing on behalf of himself and the persons he represents to the extent there is no conflict of interest between him and the persons he represents, except as to a represented person who has filed a statement pursuant to PGR 5.175(f) negating such right.

Rule 5.180. Committee Note:

Implements FPC 731.108, FPC 731.302 and FPC 731.303 and FGL 744.106.

PART II — PROBATE

PROPOSED RULE

RULE 5.190. DEFINITIONS

(a) When used in these rules, unless otherwise required by the context, or unless a contrary intent is expressly declared in the provision to be construed, the following mean:

(1) “Authenticated” when referring to copies of documents or judicial proceedings required to be filed with the court shall mean a certified or a copy authenticated according to s. 1738 or 1741, Title 28, U.S. C.

(2) “Beneficiary” means heir-at-law in an intestate estate; devisee in a testate estate; and the owner of a beneficial interest in a trust. The term does not apply to an heir-at-law, devisee or owner of a beneficial interest in a trust after his interest in the estate or trust has been satisfied.

(3) “Certified Copy” means a copy of a document signed and verified as a true copy by the officer to whose custody the original is entrusted.

(4) “Claims” means liabilities of the decedent, whether arising in contract, in tort, or otherwise, and funeral expenses. The term does not include expenses of administration, estate, inheritance, succession or other death taxes.

(5) “Clerk” means the clerk or deputy clerk of the court.

(6) “Code” means the Florida Probate Code as amended from time to time.

(7) “Court” means the Circuit Court.

(8) “Curator” means a person appointed by the Court to take charge of the estate of a decedent until letters are issued.

(9) “Devise” when used as a noun, means a testamentary disposition of real or personal property and when used as a verb means to dispose of real or personal property by will. The term includes “gift”, “give”, “bequeath”, “bequest”, and “legacy”.

(10) “Devisee” means a person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee of a trust described by will, the trust or trustee is the devisee. The beneficiaries of the trust are not devi-sees.

(11) “Distributee” means, a person who has received estate property from a personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increments to them remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee. For purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will, to the extent of the devised assets.

(12) “Domicile” shall be a person’s usual place of dwelling and shall be synonymous with “residence”.

(13) “Estate” means property of a'decedent that is the subject of administration.

(14) “File” means to file with the court or the clerk.

(15) “Foreign Personal Representative” means a personal representative of another state or foreign country.

(16) “Formal notice” means notice under PGR 5.040(a).

(17) “FPC” means the Florida Probate Code, as amended from time to time.

(18) “Heirs” or “heirs-at-law” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.

(19) “Incompetent” means a minor or a person adjudicated incompetent.

(20) “Informal notice” means notice under PGR 5.040(b).

(21) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate, or the rights of a beneficiary in the estate, the personal representative shall be deemed to be an interested person. The term does not include an heir-at-law or devisee who has received his distribution. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceeding.

(22) “Judge” means the judge of the circuit court, including any judge elected, appointed, substituted or assigned to serve as judge of the court.

(23) “Letters” means authority granted by the court to the personal representative to act on behalf of the estate of the decedent and as used in the Rules refers to what has been known as letters testamentary and letters of administration. All letters shall be designated “Letters of Administration”.

(24) “Other State” means any state of the United States other than Florida and includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.

(25) “Personal Representative” means the fiduciary appointed by the court to administer the estate, and includes what has been known as an administrator, administrator cum testamento anexo, administrator de bonis non, ancillary administrator, ancillary executor,- or executor to whom letters of administration have been issued.

(26) “Petition” means a written request to the court for an order.

(27) “Property” means both real and personal property or any interest in it and anything that may be the subject of ownership.

(28) “Residence” shall be a person’s usual place of dwelling and shall be synonymous with “domicile”.

(29) “Trustee” includes an original, additional, surviving, or successor trustee, whether or not appointed or confirmed by court.

(30) “Will” includes a codicil and is an instrument executed by a person in the manner prescribed by the Code and disposing of his property on or after his death including merely appointing a personal representative or revoking or revising another will.

Rule 5.190. Committee Note:

These definitions are intended to simplify application of these rules. See also definitions in FPC 731.201.

PROPOSED RULE

RULE 5.200. PETITION FOR ADMINISTRATION

(a) A verified petition for administration may be filed by any interested person.

(b) The petition for administration shall contain:

(1) A statement of the interest of the petitioner, his name and address and the name and office address of his attorney.

(2) The name, last known address, date and place of death of the decedent, and the state and county of the decedent’s domicile.

(3) So far as is known, the names and addresses of the beneficiaries and their relationship to the decedent and the date of birth of any who are minors.

(4) A statement showing venue.

(5) The priority under the code of the person whose appointment as the personal representative is sought.

(6) If -the decedent was a non-resident of this state, the petition shall state whether domiciliary or principal proceedings are pending in another state or country, if known, and the name and address of the foreign personal representative and the court issuing letters.

(7) A statement of the approximate value and nature of the assets so the clerk can ascertain the amount of the filing fee and the court can determine the amount of any bond.

(8) In an intestate estate, the petition' shall state that after the exercise of reasonable diligence the petitioner is unaware of any unrevoked wills or codicils, or if the petitioner is aware of any unrevoked wills or codicils the petition shall state why the wills or codicils are not being probated, or otherwise give the facts concerning any such will or codicil.

(9) In a testate estate, the petition shall identify all unrevoked wills and codicils being presented for probate, and shall state that the petitioner is unaware of any other unrevoked will or codicil or, if the petitioner is aware of any other unrevoked wills or codicils, the petitioner shall state why the other wills or codicils are not being probated.

(10) In a testate estate the petition shall state that the original of the decedent’s last will is in the possession of the court or accompanies the petition, or that an authenticated copy of a will probated in another jurisdiction accompanies the petition.

Rule 5.200. Committee Note:

Substantially the same as FPC 733.202.

PROPOSED RULE

RULE 5,210, PROOF OF WILLS

(a) Wills may be admitted to probate upon the oath of any attesting witness taken before any circuit judge or any clerk or before a commissioner appointed by the court.

(b) If it appears to the court that the attesting witnesses cannot be found or that after execution of the will they have become incompetent or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated in the will as provided in subsection (a) whether or not he is interested in the estate, or of any person having no interest in the estate under the will, that he be-Heves the writing exhibited to be the true last will of the decedent.

(d) Any circuit judge or clerk in Florida may take the oath of a witness to a will in proof of the attestation of that witness without issuance of a commission, attaching the original or photographic copy of the will to the oath of the witness.

Rule 5.210. Committee Note:

Substantially the same as FPC 733.201 with subparagraph (d) added to permit proof of will without issuance of commission.

PROPOSED RULE

RULE 5,230, COMMISSION TO PROVE WILL

(a) If any will is produced for probate and no witness attesting it can appear before the court without inconvenience, the court may issue a commission, directed to any person who is authorized to administer an oath by the laws of the state or country where such witness may be found, empowering the commissioner to take proof of the attestation of the witness and to certify the proof. No oath of the commissioner is required.

(b) If the person to whom the commission is directed certifies that the witness personally appeared and made written oath or affirmation (the written oath or affirmation to be attached to said certificate) as to the execution by the testator of the will, the original or photographic copy of which is attached to the commission, the oath or affirmation has the same operation and effect as if the written oath or affirmation had been made in the court issuing the commission.

Rule 5.230. Committee Note:

Substantially the same as prior PGR 5.-230(a) and (b) and carries forward prior procedures as to a matter upon which FPC is silent.

PROPOSED RULE

RULE 5.240. NOTICE OF ADMINISTRATION; FILING OF OBJECTIONS AND CLAIMS

(a) Upon issuance of letters the personal representative shall publish a notice of administration and serve a copy of the notice on the surviving spouse and all beneficiaries known to the personal representative according to the requirements of PGR 5.040(a) who have not been barred by FPC 733.211 or other provisions of the Code. The notice shall contain the name of the decedent, the file number of the estate, the designation and address of the court, the name and address of the personal representative and his attorney, and date of first publication. The notice shall require all interested persons to file with the court, within three (3) months of the first publication of the notice:

(1) All claims against the estate.

(2) Any objection by an interested person upon whom notice was served that challenges the validity of the will, qualifications of the personal representative, venue or jurisdiction of the court.

(b) Publication shall be once a week for two consecutive weeks, two publications being sufficient, in a newspaper published in the county where the estate is administered, or if there is no newspaper published in the county, in a newspaper of general circulation in that county. Proof of publication shall be filed.

(c) Objections under subsection (a)(2) that are not filed within three (3) months following the date of first publication of the notice are forever barred. Claims under subsection (a)(1) are barred as provided in FPC 733.702.

Rule 5.240. Committee Note: 1

Substantially the same as and procedurally carries out intent of FPC 733.210.

PROPOSED RULE

RULE 5.260. CAVEAT; PROCEEDINGS

(a) If any creditor of the estate of a decedent is apprehensive that the estate will be administered without his knowledge, or if any person other than a creditor is apprehensive that an estate may be administered or that a will may be admitted to probate without his knowledge, he may file a caveat with the court.

(b) No caveat shall be effective unless it contains a statement of the interest of the caveator in the estate, the name and specific mailing address and residence address of the caveator.

(c) If the caveator is not a resident of the county in which the caveat is filed, he shall file a designation of the name and specific mailing address and residence address of a resident in the county where the caveat is filed as his agent for service of notice. The written acceptance by the person appointed as resident agent shall be filed with the designation or included in the caveat. The designation and acceptance shall constitute the consent of the caveator that service of notice upon the designated resident agent shall bind the caveator.

(d) If at the time of the filing of any caveat the decedent’s will has been admitted to probate or letters of administration have been issued on such estate, the clerk shall forthwith notify the caveator in writing, advising him of the date of issuance of letters, and the names and addresses of the personal representative of the estate and his attorney. When letters of administration issue after the filing of a caveat by a creditor, the clerk shall forthwith notify such caveator, in writing, advising him of the date of issuance of letters and the names and addresses of the personal representative and his attorney, unless notice has previously been served on such caveator. Copy of any notice required to be given by the clerk herein, together with a certificate of the mailing of the original thereof, shall be filed in the estate proceedings.

(e) After the filing of a caveat by an interested person other than a creditor, the court shall not admit a will of the decedent to probate without service of notice on the caveator or his designated agent according to PGR 5.040 and compliance with FPC 733.211.

(f) The caveator other than a creditor in his answer shall state his interest in the estáte and facts constituting the ground on which he opposes the probate of the will; and on the issue made and proof adduced, the court shall probate the will or deny probate thereof.

Rule 5.260. Committee Note:

In implementing FPC 731.110 and 733.-203(1), the rule carries forward the pertinent portions of prior PGR 5.150 and establishes a procedure to be followed upon the filing of any caveat.

PROPOSED RULE

RULE 5.270. REVOCATION OF PROBATE

(a) A petition for revocation of probate shall state the interest of the petitioner in the estate and the facts constituting the grounds upon which revocation is demanded.

(b) Proceedings shall follow the requirements of PGR 5.025.

(d) Pending the determination of any issue made for revocation of probate, the personal representative shall administer the estate as if no such issue had been made, but no distribution may be made to devi-sees in contravention of the rights of those who, but for such will, would be entitled to the property disposed of thereby.

Rule 5.270. Committee Note:

Substantially the same as FPC 733.-109(1) (a)-(b) and 733.109(2) and carries forward material portions of former PGR 5.160.

PROPOSED RULE

RULE 5.280. PROBATE OF WILL WRITTEN IN FOREIGN LANGUAGE

(a) The petition for probate of a will written in a foreign language shall contain or have attached a true and complete English translation of the will. No probate of any will written in a foreign language shall be granted without notice to all interested persons including the surviving spouse and heirs at law of the testator and all beneficiaries under the will.

(b) If the original will is not or cannot be filed, a photographic copy of the original will shall be filed with the petition.

(c) Upon the probate of such a will, the court shall establish the correct English translation in its order admitting the will to probate. Any interested person may any time during the administration of the estate, by petition and after notice to all interested persons, have the correctness of the translation or any portion thereof redetermined. No personal representative shall be held responsible for compliance in good faith with the English translation of the will as established by the court at time of such action.

Rule 5.280. Committee Note:

Implements FPC 733.204 and subpara-graphs (a) and (c) are substantially same as prior PGR 5.170.

PROPOSED RULE '

RULE 5.290. PROBATE OF NOTARIAL WILL

(a) When a copy of a notarial will in the possession of a notary entitled to the custody thereof, in a foreign state or country (the laws of which require that the will remain in the custody of such notary), duly authenticated by the notary, whose official position, signature and seal of office are further authenticated as provided by the Acts of Congress, or by an American consul, vice-consul or other American consular officer within whose jurisdiction the notary is a resident, is presented to the court, it may be admitted to probate if the original might have been admitted to probate in this state.

(b) The authenticated copy of the will shall be prima facie evidence of its execution and of the facts stated in the certificate in compliance with the preceding subsection.

(c) Any interested person may oppose the probate of such notarial will or may petition for revocation of probate of such notarial will as in the case of the original probate of a will in this state. All proceedings in connection with any such notarial will shall be similar to proceedings in connection with wills originally probated in this state.

Rule 5.290. Committee Note:

Substantially same as FPC 733.205.

PROPOSED RULE

RULE 5.310, DISQUALIFICATION OF PERSONAL REPRESENTATIVE; NOTIFICATION

Any personal representative who was improperly qualified or who becomes disqualified to act after his appointment shall immediately present a petition to the court for appropriate action and shall do any and all other things necessary or proper to procure an order approving his resignation.

Rule S.310. Committee Note:

This is same as old PGR Rule S.220 and old F.S. 732.47(3). The Rule sets forth the imperative need for timely action and the inherent responsibility of a fiduciary to effect orderly succession. It further implies the inherent jurisdiction of the court to control by judicial overview the succession.

STATUTORY REFERENCES:

FPC 733.302 Who May Be Appointed.

FPC 733.303 Persons Not Qualified.

FPC 733.502 Resignation.

FPC 733.504 Causes For Removal.

FPC 733.505 Jurisdiction.

PROPOSED RULE

RULE 5,320, OATH OF PERSONAL REPRESENTATIVE

Before the granting of letters of administration, the personal representative shall file an oath that he will faithfully administer the estate of the decedent. If the petition is verified by the prospective personal representative individually, the oath may be incorporated in the petition or in the designation of resident agent.

Rule 5.320. Committee Note:

This Rule establishes the uniform requirement for an oath of faithful performance of fiduciary duties within the permissiveness of F.S. 733.401(4). Should be taken together with new PGR 5.110, Resident Agent.

STATUTORY REFERENCE:

FPC 733.401(4) sets forth: “(4) Any required oath or designation of and acceptance by a resident agent shall be filed.”

OLD RULE: Same as old PGR 5.240 except reference to resident agent added.

PROPOSED RULE

RULE 5.330, EXECUTION BY PERSONAL REPRESENTATIVE

(а) - Notwithstanding any other provisions of these rules, the personal representative shall sign the:

(1) Inventory;

(2) Accountings;

(3) Petition for sale or confirmation of sale or encumbrance of real or personal property;

(4) Petition to continue business of decedent;

(5) Petition to compromise or settle claim;

(б) Petition to purchase on credit;

(7) Petition for distribution and discharge ; and

(8) Resignation of personal representative.

Rule 5.330. Committee Note:

Where the jurisdiction of the court is invoked voluntarily pursuant to FPC 733.603, or otherwise, the Rule requires that the Personal Representative have actual knowledge of the more important steps and acts of administration.

STATUTORY REFERENCES:

As to:

(1) FPC 733.604 (Inventory)

(2) FPC 733.901 (Accounting)

(3) FPC 733.613 (Sale or Confirmation)

(4) FPC 733.612(22) (Business)

(5) FPC 733.612(24) (Claims)

(6) FPC 733.612(5) (Purchase On Credit)

(7) FPC 733.612(24) (Distribution and Discharge)

(8) FPC 733.502 (Resignation)