Citations
- 458 So. 2d 1079
Full opinion text
PER CURIAM.
The Probate and Guardianship Rules Committee of The Florida Bar, in accordance with the proceedings established in rule 2.130(c), Florida Rules of Judicial Administration, has submitted its proposed changes to the rules of probate and guardianship procedure. That committee represents, and its proposals reflect, a continuous study, monitoring, and evaluation of the applicable case law and statutory changes.
The probate and guardianship rules were adopted and approved in March 1977 and reported at 344 So.2d 828 (Fla.1977). They were amended in 1980 and reported at 387 So.2d 949 (Fla.1980).
We adopt changes to these rules and the rules as amended shall supercede the previous rules, effective 12.01 a.m., January 1, 1985. We also publish with each change the Committee Notes, Rule History, Statutory Reference, and Rule Reference. “Committee Notes” are the committee’s brief explanation of the rule. “Rule History” is the committee’s brief summary of the changes in the rule. “Statutory Reference” is reference to statutes where the rules would be applicable. “Rule Reference” is reference to other probate or guardianship rules that could be applicable. The committee notes are informal notes of the committee, intended to help the practitioner and are not intrinsic parts of the rules. The Court authorizes the committee to correct the committee notes and references separately from any rule change.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.
Rule 5.020. PLEADINGS; VERIFICATION; MOTIONS; 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. She A petition shall contain a short and plain statement of the relief sought, the grounds therefor, and the jurisdiction of the court where the jurisdiction has not already been shown.
(c) Motions. Any other application to the court for an order may shall be by written motion, unless made orally during a hearing or trial. The motion shall state with particularity the grounds therefor and shall set forth the relief or order sought.
(d) Rehearing. A motion for rehearing of any order or judgment shall be filed served not later than ten days after the entr-y-of the order or judgment, the date of filing the order or judgment with the clerk as shown on the face of the order or judgment.
(e) Verification. When verification of a document is required by these rules or the FBG, 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.”
(f)Copies. — In adversary proceedingsror-when otherwise required — by—these rules, Gopies-of-all-pleadings and motions shall be ser-ved-on-the-attorney of record of each interested person, and on each interested person not represented by an attorney of reeordr
Committee Notes
The time for determining when a motion for rehearing must be served has been clarified subsequent to Casto v. Casto, 404 So.2d 1046 (Fla.1981).
Rule History
1977 Revision: Editorial change (rule) and expansion of committee note. Paragraphs (a), (b), and (d) substantially the same as paragraphs (a), (b), and (f) of prior Fla.R.P. & G.P. 5.030. Paragraph (c) taken from FPC 731.104. For adversary proceedings see new Fla.R.P. & G.P. 5.025. Notice of administration is not a pleading within the meaning of this rule.
1980 Revision: Paragraphs (c) and (d) have been redesignated as (e) and (f). New paragraphs (c) and (d) are added to provide for the use of motions in probate proceedings other than adversary proceedings and to specifically authorize a procedure for rehearing.
1984 Revision: Minor editorial changes. Paragraph (f) of prior rule has been deleted as it is now covered under the adversary rules.
Statutory References
F.S. 731.104 Verification of documents.
F.S. 731.201 General definitions.
Rule Reference
Fla.R.P. & G.P. 5.025 Adversary proceedings.
Rule 5.025. ADVERSARY PROCEEDINGS
(a) Specific adversary proceedings. The following shall be adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, cancel a devise, partition property for the purposes of distribution, determine and award the elective share, determine pretermitted share, and for revocation of probate of a will.
(b) Declared adversary proceedings. Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.
(1) If served by the petitioner, the declaration shall be served with the petition to which it relates.
(2) If served by the respondent, the declaration and a written response to the petition shall be served at the earlier of:
(A) within 20 days after service of the petition, or
(B) prior to the hearing date on the petition.
(3) The declaration shall be served in the same form and manner as though responding to formal notice.
(4) When the declaration is served by a respondent, the petitioner shall promptly serve formal notice.
(c) Adversary status by order. The court may determine any proceeding to be an adversary proceeding at any time.
(d) Notice and procedure in adversary proceedings.
(1) Petitioner shall serve formal notice.
(2) After service of formal notice, the 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) The court on its motion or on motion of any interested person may enter orders to avoid undue delay in the main administration.
(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. The order shall require interested persons to serve written defenses, if any, within 20 days from the date of the order. It shall not be necessary to re-serve the petition except as ordered by the court.
(5)After the proceedings are determined to be adversary, the caption of subsequent pleadings, as an extension of the probate caption, shall include the name of the first petitioner and the name of the first respondent.
Committee Notes
The court on its initiative or on motion of any party may order any proceeding to be adversary or nonadversary or vice versa or enter any order which will avoid undue delay. The personal representative would be an interested person in all adversary proceedings. A prescribed form for the caption is provided which will facilitate the clerk’s and the court's ability to segregate such adversary proceeding from other adversary proceedings and from the main probate file:
Court Case #
In Re Estate of John B. Jones) Julia Jones, | Petitioner, j V- . ) Harold Jones, as Personal ) Representative, et al., ) _Respondents. )
Rule History
1975 Revision: New rule. 324 So.2d 38.
1977 Revision: Editorial changes to (a)(1).
1984 Revision: Extensive changes, committee notes revised and expanded.
Statutory References
F.S. 731.107 Adversary proceedings.
F.S. 732.201 — 732.215 Elective share of surviving spouse.
F.S. 732.301 Pretermitted spouse.
F.S. 732.507 Effect of subsequent marriage, birth, or dissolution of marriage.
F.S. 732.6005 — 732.611 Rules of construction.
F.S. 732.803 Charitable devises.
F.S. 733.105 Determination of beneficiaries.
F.S. 733.109 Revocation of probate.
F.S. 733.207 Establishment and probate of lost or destroyed will.
F.S. 733.208 Discovery of later will.
F.S. 733.507 Administration following resignation or removal.
F.S. 733.603 Personal representative to proceed without court order.
F.S. 733.619(2) and (4) Individual liability of personal representative.
F.S. 733.814 Partition for purpose of distribution.
Rule References
Fla.R.P. & G.P. 5.040 Notice.
Fla.R.P. & G.P. 5.190(a)(21) Definitions.
Fla.R.P. & G.P. 5.270 Revocation of probate.
Fla.R.P. & G.P. 5.360 Duty to pay elective share.
Fla.R.P. & G.P. 5.390 Partition for purpose of distribution.
Fla.R.P. & G.P. 5.440 Proceedings for removal.
Fla.R.P. & G.P. 5.510 Establishment and probate of lost or destroyed will.
Fla.R.Civ.P. 1.140 Defenses.
Fla.R.Civ.P. 1.160 Motions.
Fla.R.Civ.P. 1.200 Pretrial procedure.
Fla.R.Civ.P. 1.280 General provisions governing discovery.
Fla.R.Civ.P. 1.290 Depositions- before action or pending appeal.
Fla.R.Civ.P. 1.310 Depositions upon oral examination.
Fla.R.Civ.P. 1.340 Interrogatories to parties.
Fla.R.Civ.P. 1.380 Failure to make discovery; sanctions.
Rule 5.030. ATTORNEYS
(a)Withdrawal. The provisions-of Rule 2Ü6Q — EIa.-R.Jud.Admin. Visee — AppendixVa relating to attorney s-shall - apply. An attorney of record will not be permitted to withdraw from a case unless his withdrawal is sanctioned by the court. He shall file his petition for withdrawal in the court setting forth his reasons therefor and shall serve a copy on his client and on any other interested person persons.
(b) Required; exception. Every guardian and every personal representative, unless the personal representative remains the sole interested party person therein, shall be represented by an attorney admitted to practice in this state Florida. If the guardian or personal representative is an attorney admitted to practice in this state Florida, he may represent himself as guardian or personal representative.
(c) Limiting appearance. An attorney of record for an interested person in a proceeding governed by the Florida Probate Code, the Florida Guardianship Law, or these rules shall be the attorney of record for the same person in all other proceedings in the administration of the same estate or guardianship, except service of process in an independent action on a claim, unless
(1) the attorney specifically limits his appearance only to the particular proceeding or matter in which he appears, or
(2) the court orders Otherwise-
Committee Notes
The appearance of an attorney in an estate is a general appearance unless specifically limited. This rule does not affect the right of a party to employ additional attorneys who, if members of the Florida Bar, may appear at any time.
Rule History
1975 Revision: Paragraph (a) is same as prior Fla.R.P. & G.P. 5.040 with added provision for withdrawal of attorney Similar to Fla.R.App.P. 2.3(d)(2). Paragraph (b) reflects ruling in case of State ex rel. Falk-ner v. Blanton, 297 So.2d 825 (Fla.1974).
1977 Revision: Editorial change requiring filing of petition for withdrawal and service of copy upon interested persons. Editorial change in citation forms in rule and committee note.
1984 Revision: Minor editorial changes and addition of paragraph (c). Committee notes expanded.
Rule References
Fla.R.Jud.Admin. 2.060 Attorneys.
Fla.R.App.P. 9.440 Attorneys.
Rule 5.040. NOTICE METHOD — AND TIME;.ERODE
(a) Formal notice.
(1)When formal notice is required given, the-petitioner shall serve a copy of the petition pleading or other pleading motion shall be served on any interested person persons or his attorney if he has appeared by an attorney or requested that notice be sent to his attorney, together with a notice requiring the person served to file serve his written defenses to that petition on the person giving notice within 20 days after service of such formal the notice, exclusive of the day of service, and to serve a copy on petitioner’s-attorney file the original of the written defenses with the clerk of the court either before service or immediately thereafter, and notifying the person served that failure to -f-ile-and serve written defenses within-the - time as required may result in a judgment or order being-entered in due course,- for the relief demanded in the pleading or motion, without further notice.
(2) After service of formal notice, informal notice of any hearing on the pleading or motion shall be served on interested persons, provided that if no written defense is served and-filed within 20 days after service of fee-petition formal notice on an interested person, the petition pleading or motion may shall be considered ex parte as to that person, unless the court orders otherwise. If-a — written defense is timely served and filed, a hearing shall be set and reasonable notice given.
(3) Formal notice shall be served:
⅜ (A) By any form of mail requiring a signed receipt as follows:
(l){i) On his attorney of record; if-any- on an interested person represented by an attorney by mailing a copy to the attorney; or to -the-posEof-fice address-given- in his demand for notice, if any; or
(ii) on an interested person who has filed a demand for notice by mailing a copy to the post office address given in the demand for notice; or
(2) {iii) 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; or
(3) (iv) On an incompetent person by mailing a copy to the -incompetent; his usual place of abode and to his legal guardian, if any the-per-son — having—custody-of—the incompetent, - and to any legal guardian of the incompetent at their respective dwelling houses, at his usual places place of abode or regular places place of business or profession; or, if there is no legal guardian, by mailing a copy to the incompetent at his usual place of abode and to the person, if any, having care or custody of the incompetent at the usual place of abode or regular place of business of such custodian; or
(4) (v) on a corporation by mailing a copy to fee-corporation at its registered office in Florida or its principal business office in Florida or, if neither is known after reasonable inquiry, to its last known address; or
hr (B) As provided in Chapter 48,- Florida Statutes by Florida law for service of process; or
e, — fe—fee—circumstances—provided in Chapter-49,-F-Iorida Statutes, in the manner provided therein,-or
⅜ (C) By an elisor as may be provided in the rules of civil procedure.
(4) If service of process is made under Chapters-48-or-49rjgloridar-§tatutes pursuant to Florida law, fees proof of service shall be made as provided therein.
(5) if Service of formal notice is made by mail, then shall be complete on receipt of the notice. If service is made by mail, proof of service shall be by verified statement of the person mailing service, and there shall be attached to such fee verified statement 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. (4) When informal notice of a petition or other proceeding is required or permitted, it shall be served os the person or his attorney as provided in the these rules. Rules-of-Civil-Procedure relating to serviGe-of-pleadings.
(2) Proof of ser-v-ice-shall-be — made by filing an-attor-ney-⅛-certificate of service or by^ver-ified-statement if filed by a person who-is-not-a member of The Florida Bar.
(3) Unless other-w-ise-specifically-provid-ed,-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 speeifieally — waived—by-will.
(c) “Notice” defined. In these rules, the Florida Probate Code, and the Florida Guardianship Law “notice” shall mean informal notice unless formal notice is specifically-provided for or required specified.
(d)-I-n-aetions- when the parties are unusually numerous,-the court may regulate the service contemplated by these rules on motion or on its initiative in such manner as may be-found-to be just and reasonable.
(e) (d) Formal notice optional. Formal notice may be given in lieu of informal notice at the option of the moving-party person giving notice unless the court orders otherwise. When sueh formal notice is given to-any party, it in lieu of informal notice, formal notice shall be given to all parties interested persons entitled to notice.
Committee Notes
Formal notice is the method used in probate proceedings for obtaining jurisdiction over the person receiving the notice. It is similar to process under the Florida Rules of Civil Procedure and requires a response. These rules and the FPC and FGL specify when formal notice is required as, for example, in an adversary proceeding.
Formal notice may be used in lieu of informal notice at the option of the person giving notice.
Informal notice is the notice given to interested persons entitled to notice when formal notice is not given or required.
Rule History
1975 Revision: Implements F.S. 731.301.
1977 Revision: Reference to elisor.
1980 Revision: Editorial changes. Clarification of time for filing defenses after formal notice. Authorizes court to give relief to delinquent respondent from ex parte status; relief from service on numerous persons; allows optional use of formal notice.
1984 Revision: Editorial changes. Eliminates deadline for filing as opposed to serving defenses after formal notice; defines procedure subsequent to service of defenses after formal notice; new requirements for service of formal notice on incompetents and corporations; defines when service of formal notice is deemed complete; provisions relating to method of service of informal notice transferred to new rules 5.041 and 5.042; eliminates waiver of notice by will.
Statutory References
F.S. 731.105 In rem proceeding.
F.S. 731.201(16) and (20) General definitions.
F.S. 731.301 Notice; method and time; proof.
F.S. ch. 48 Process and service of process.
F.S. ch. 49 Constructive service of process.
F.S. 1.01(3) Definitions.
Rule References
Fla.R.P. & G.P. 5.030 Attorneys.
Fla.R.P. & G.P. 5.041 Service of pleadings and papers.
Fla.R.P. & G.P. 5.042 Time.
Fla.R.Jud.Admin. 2.060 Attorneys.
Fla.R.Civ.P. 1.070 Process.
Fla.R.Civ.P. Form 1.902 Summons.
Rule 5.041. SERVICE OF PLEADINGS AND PAPERS
(a) Service; when required. Unless the court orders otherwise, every petition or motion for an order determining rights of an interested person, and every other pleading or paper filed in the particular proceeding which is the subject matter of such petition or motion, except applications for witness subpoenas, shall be served on interested persons unless these rules, the Florida Probate Code, or the Florida Guardianship Law provide otherwise. No service need be made on interested persons against whom a default has been entered, or against whom the matter may otherwise proceed ex parte, unless a new or additional right or demand is asserted.
(b) Service; how made. When service is required or permitted to be made in a particular proceeding in the administration of an estate on an interested person represented by an attorney, service shall be made on the attorney unless service on the interested person is ordered by the court. Except when serving formal notice, service on the attorney or interested person shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule shall mean
(1) handing it to the attorney or to the interested person, or
(2) leaving it at his office with his clerk or other person in charge thereof, or
(3) if there is no one in charge, leaving it in a conspicuous place therein, or
(4) if the office is closed or the person to be served has no office, leaving it at his usual place of abode with some person of his family above 15 years of age and informing that person of the contents.
Service by mail shall be complete on mailing except where serving formal notice.
(c) Service; numerous interested persons. In proceedings when the interested persons are unusually numerous, the court may regulate the service contemplated by these rules on motion or on its initiative in a manner as may be found to be just and reasonable.
(d) Filing. All original papers shall be filed either before service or immediately thereafter. If the original of any bond or other paper is not placed in the court file, a certified copy shall be so placed by the clerk.
(e) Filing with the court defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may permit the papers to be filed with him in which event the judge shall note thereon the filing date and transmit them to the clerk.
(f) Certificate of service. When any attorney shall certify in substance:
“I certify that a copy hereof has been furnished to (here insert name or names) by (delivery) (mail) this_day of, 19
Attorney”
the certificate shall be taken as prima facie proof of service in compliance with these rules except in case of formal notice. A person not represented by an attorney shall certify in the same manner, but the certificate must be verified.
(g)Service of orders.
(1) A copy of all orders or judgments determining rights of an interested person shall be transmitted by the court or under its direction at the time of entry of the order or judgment to all interested persons in the particular proceeding.
(2) This subdivision (g) is directory, and a failure to comply with it does not affect the order or judgment or its finality.
Committee Notes
Derived from Fla.R.Civ.P. 1.080. Regulates the service of pleadings and papers in proceedings on petitions or motions for determination of rights. It is not applicable to every pleading and paper served or filed in the administration of a guardianship or decedent’s estate.
Rule History
1984 Revision: New rule. Paragraph (c) is same as former rule 5.040(d).
Statutory Reference
F.S. 731.301 Notice; method and time; proof.
Rule References
Fla.R.P. & G.P. 5.030 Attorneys.
Fla.R.P. & G.P. 5.040 Notice.
Fla.R.P. & G.P. 5.042 Time.
Fla.R.Jud.Admin. 2.060 Attorneys.
Fla.R.Civ.P. 1.080 Service of pleadings and papers.
Rule 5.042. TIME
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, nor legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.
(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion
(1) with or without notice may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or
(2) on motion made and notice after the expiration of the specified period may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for rehearing or for taking an appeal or filing a petition for certiorari.
(c) Service for hearings. A copy of any written petition or motion which may not be heard ex parte and a copy of the notice of the hearing thereon shall be served a reasonable time before the time specified for the hearing.
(d) Additional time after service by mail. Except for formal notice and notice of administration, when an interested person has the right or is required to act within a prescribed period after the service of notice or other paper on him and the notice or paper is served on him by mail, 5 days shall be added to the prescribed period.
Committee Notes
This rule is derived from Fla.R.Civ.P. 1.090.
Rule History
1984 Revision: New rule.
Statutory Reference
F.S. 683.01 Legal holidays.
Rule Reference
Fla.R.Civ.P. 1.090 Time.
Rule 5.065. NOTICE OF CIVIL ACTION OR ANCILLARY ADMINISTRATION
(a) Civil action. A personal representative and a guardian shall file a notice when a civil action has been instituted by or against the personal representative or the guardian. The notice shall contain:
(1) the names of the parties;
(2) the style of the court and the case number;
(3) the county and state where the proceeding is pending;
(4) the date of commencement of the proceeding; and
(5) a brief statement of the nature of the proceeding.
(b) Ancillary administration. The domiciliary personal representative shall file a notice when an ancillary administration has commenced, which notice shall contain:
(1) the name and residence address of the ancillary personal representative;
(2) the nature and approximate value of the ancillary assets; and
(3)the information required in paragraphs (a)(2), (3), and (4) above.
(c) Copies exhibited. A copy of the initial pleading may be attached to the notice. To the extent an attached initial pleading states the required information, the notice need not restate it.
Committee Notes
This rule reflects a new procedural requirement not founded on a statute or rule.
Rule History
1984 Revision: New rule.
Statutory Reference
F.S. 733.612(20) Transactions authorized for the personal representative; exceptions.
Rule 5.080. DEPOSITIONS AND DISCOVERY
(а) Application. The following Florida Rules of Civil Procedure shall apply in probate and guardianship proceedings:
(1) Rule 1.280, general provisions governing discovery;
(2) Rule 1.290, depositions before action or pending appeal;
(3) Rule 1.300, persons before whom depositions may be taken;
(2) (4) Rule 1.310, depositions upon oral examination;
(3) (5) Rule 1.320, depositions upon written questions;
(4) (6) Rule 1.330, use of depositions in court proceedings;
(5) (7) Rule 1.340, interrogatories to parties;
(б) (8) Rule 1.350, production of documents and things and entry upon land for inspection and other purposes;
(9) Rule 1.351, production of documents and things without deposition;
(7) (10) Rule 1.360, physical and mental examination of persons;
(8) (11) Rule 1.370, requests for admission;
(9) (12) Rule 1.380, failure to make discovery; sanctions;
(40) (13) Rule 1.390, depositions of expert witnesses; and
(44) (14) Rule 1.400, publication of deposition; and
(15) Rule 1.410, subpoena.
(b) Limitations and costs. 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, the discovery and may assess the costs thereof of the discovery to the party taking — the same making it or to one or more of the beneficiaries of the estate or to the ward in such proportions as the court determines, considering, among other things, the benefit derived therefrom.
Committee Notes
Rule History
1975 Revision: This rule is the same as prior Fla.R.P. & G.P. 5.080, broadened to include guardianships and intended to clearly permit the use of discovery practices in nonadversary probate and guardianship matters.
1977 Revision: Editorial change in citation form in committee note.
1984 Revision: Fla.R.Civ.P. 1.290, 1.300, 1.351, and 1.410 have been added.
Rule Reference
Fla.R.Jud.Admin. 2.070 Court reporting. Rule 5.110. RESIDENT AGENT
(a) Requirement and form. Before letters are issued to a personal representative or a guardian, such the 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 ais© be filed at the time of filing the designation. The designation by the personal representative or guardian and acceptance by the resident agent shall constitute the consent of the personal representative or guardian filing it that service of process or notice upon on 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-ag-ent-
(b) Corporate fiduciaries. Corporate fiduciaries are not required to designate a resident agent.
(fe) (c) Attorneys. 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.
(e) (d) Successor. 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.
Committee Notes
Rule History
1977 Revision: Change in committee note to conform to statutory renumbering.
Substantially the same as prior Fla.R.P. & G.P. 5.210, except that under prior rule, designation was required to be filed within 10 days after letters issued.
1984 Revision: Captions added to paragraphs. New paragraph (b) added. Requires filing acceptance at the same time as filing designation. Committee notes revised.
Statutory Reference
F.S. 733.401 Issuance of letters.
Rule 5.150. ORDER REQUIRING ACCOUNTING
(a) Accountings required by statute. When any personal representative or guardian fails or-neglects to make a required accounting file an accounting or return required by statute or rule, the court on its own motion or on the petition of an interested person shall order the personal representative or guardian to make file such the accounting or return within fifteen-(15) days from the service upon on him of such tiie 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 cour-t-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) Accountings not required by statute. ■Upon On the application petition of a-ny an interested person, or upon on its own motion, the court may require the personal representative or guardian to file an accounting or return not otherwise required by statute or rule, and to make such settlements and-distribution in whole or in part as is necessary for the proper-administration of the-estate. The order requiring an accounting or return shall order the personal representative or guardian to file the accounting or return within a specified time from service on him of the order, or show cause why he should not be compelled to do so-
le) Service. A copy of the order shall be served on the personal representative or guardian and his attorney.
Committee Notes
The court on its motion or on petition of an interested person may require a personal representative or guardian to file an accounting or return not otherwise required by statute.
Rule History
1977 Revision: Change in committee notes.
1984 Revision: Extensive editorial changes. Committee notes revised and expanded.
Statutory References
F.S. 38.22-38.23 Contempt.
F.S. 733.502 Resignation of personal representative.
F.S. 733.901 Distribution; final discharge.
F.S. 744.427 Annual returns.
F.S. 744.431 Order requiring return; contempt.
F.S. 744.467 Resignation of guardian.
F.S. 744.511 Accounting upon removal.
F.S. 744.517 Proceedings for commitment.
F.S. 744.521 Termination of guardianship.
F.S. 744.524 Termination of guardianship on change of domicile of resident ward.
F.S. 744.527 Final returns and application for discharge; hearing.
Rule 5.160. PRODUCTION OF ASSETS
Upon On the petition of any an interested person, or upon on its ew» 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 the assets for the inspection of such the interested person or the court.
Committee Notes
Rule History
1977 Revision: Change in committee notes.
1984 Revision: Minor editorial changes. Committee notes revised.
Statutory Reference
F.S. 744.434 Production of assets.
Rule 5.170. EVIDENCE
In proceedings under the Florida Probate Code and the Florida Guardianship Law the rules of evidence in civil actions are applicable unless specifically changed by the Iaw Florida Probate Code, the Florida Guardianship Law, or these rules.
Committee Notes
Rule History
1977 Revision: New rule.
1984 Revision: To further clarify the intent of the rule to incorporate the provisions of the Florida Evidence Code (chapter 90, F.S.) when not in conflict with the Florida Probate Code or Florida Guardianship Law, or rules applicable to these particular proceedings.
Statutory Reference
F.S. ch. 90 Florida Evidence Code.
Rule 5.180. NOTICE; WAIVER
A person, including a representative person, and a guardian ad litem, administrator ad litem, guardian of the property, or, if none, the natural guardian, personal representative, trustee, or other fiduciary may waive formal notice, informal notice, service (including service of notice of adminis-
(a) waive the following:
(1) formal notice;
(2) informal notice;
(3) service including service of notice of administration;
(4) disclosure of the amount of compensation either paid to or to be paid to the personal representatives, attorneys, accountants, appraisers, or other agents employed by the personal representative;
(5) disclosure of prior or proposed distribution of assets; and
(6) any other proceedings or matters permitted to be waived by law or by these rules; and
(b) 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.
Committee Notes
This rule provides a broad waiver of procedural requirements by interested persons, including fiduciaries.
Rule History
1977 Revision: Extends right of waiver to natural guardian; clarifies right to waive service of notice of administration.
1984 Revision: Extends waiver to disclosure of compensation and distribution of assets. Committee notes revised.
Statutory References
F.S. 731.302 Waiver and consent by interested person.
F.S. 733.901 Distribution; final discharge.
F.S. 744.106 Notice and virtual representation.
F.S. 744.301 Natural guardians.
F.S. ch. 737 Trust administration.
Rule References
Fla.R.P. & G.P. 5.120 Administrator ad litem and guardian ad litem.
Fla.R.P. & G.P. 5.400 Distribution and discharge; notice.
Fla.R.P. & G.P. 5.680 Termination of guardianship upon removal of ward’s incapacity, death or exhaustion of assets.
Fla.R.P. & G.P. 5.690 Annual account-ings.
Rule 5.205. DEATH CERTIFICATE FILING FILING EVIDENCE OF DEATH
(a)Requirements for filing. A copy of an official record of the death of a decedent shall be filed by the personal representative, if any, or the petitioner in each of the following proceedings and at the times specified:
(1) administration of decedent’s estate: within not later than three- (3) months following the date of the first publication of the notice of administration;
(2) ancillary proceedings: within not later than three — (3) months following the date of first publication of notice to creditors.
(3) family administration: at any time prior to entry of the order of family administration;
(4) summary administration: at any time prior to entry of the order of summary administration;
(5) disposition without administration: at the time of filing the application for disposition without administration;
(6) determination of beneficiaries: at any time prior to entry of the final judgment determining beneficiaries; and
(7) determination of homestead: at any time prior to entry of the final judgment determining homestead status of real property.
(b) Waiver. Upon On verified petition by the personal representative, if any, or the petitioner the court may enter an order waiving compliance dispensing with this rule, without notice or hearing.
(c) Authority to require filing. The court may, without notice or hearing, enter an order requiring the personal representative, if any, or the petitioner to file a copy of an official record of death at any time during the proceedings.
Committee Notes
Rule History
1980 Revision: This rule is intended to provide a uniform procedure for filing an official record of death in any judicial or statutory proceeding upon the death of a decedent. The court may, upon ex parte application, waive compliance with this rule or require filing at any stage in the proceedings.
1984 Revision: Captions and minor editorial changes. Committee notes revised.
Statutory Reference
F.S. 731.103 Evidence as to death or status.
Rule 5.210. PROBE PROBATE OF WILLS
(a) Manner. On petition wills may be admitted to probate by:
(1) filing a self-proved will executed as required by law; or
(2) filing the will and the written oath of a person authorized by statute proving the execution of the will as required by law; or
(3) filing an authenticated copy of a notarial will, the original of which is in the possession of a foreign notary and satisfies the requirements of law; or
(4) filing an authenticated copy of the will of any person who dies a resident of Florida that has been admitted to probate in another state or country as provided by law; or
(5) filing a will or a photographic copy of a will written in a foreign language to which is attached a true and complete English translation together with proof of will as required by law. In the order admitting the foreign language will to probate the court shall establish the correct English translation.
(b) Oath. 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.
Committee Notes
Rule History
1975 Revision: Proof of will may be taken by any Florida circuit judge or clerk without issuance of commission.
1984 Revision: This rule has been completely revised to set forth the procedure for proving all wills except lost or destroyed wills and the title changed. The rule requires an oath attesting to the statutory requirements for execution of wills and the will must be proved before an order can be entered admitting it to probate. Former Fla.R.P. & G.P. 5.280, 5.290, and 5.500 are included in this rule. Committee notes revised.
Statutory References
F.S. 733.201 Proof of wills
F.S. 733.204 Probate of will written in foreign language.
F.S. 733.205 Probate of notarial will.
F.S. 733.206 Probate of will of resident after foreign probate.
F.S. 733.502 Resignation of personal representative.
F.S. 733.503 Appointment of successor upon resignation.
Rule 5.230. COMMISSION TO PROVE WILL
(a) Petition. The court may appoint a commissioner on petition to take the oath of any attesting witness to a will. The petition for the appointment of a commissioner shall set forth the date of the will and the place where it was executed, if known; the names of the witnesses and address of the witness whose oath is to be taken; and the name, title, and address of a proposed commissioner.
(b) Commission. The commission shall be directed to any .person who is authorized to administer an oath by the laws of Florida, the United States of America, or the state or country where the witness may be found, and it shall empower the commissioner to take proof of the attestation of the witness and direct him to certify the proof and return the executed commission, copy of the will, oath of witness, and certificate of proof. An oath of the commissioner is not required.
(c) Mailing. The petitioner or his attorney shall cause the commission together with a photographic copy of the will, the oath, and the certificate of proof to be mailed to the commissioner-
id) Admission to probate. On the filing of the executed commission, together with the copy of the will, the oath, and certificate of proof, the will may be admitted to probate.
(e) Objections. Objections to the validity of the will shall follow the form and procedure set forth in these rules pertaining to revocation of probate. Objections to the qualifications of the personal representative shall follow the form and procedure set forth in these rules pertaining to removal of personal representatives. Objections to the venue or jurisdiction of the court shall follow the form and procedure set forth in the rules of civil procedure.
Committee Notes
Rule History
1975 Revision: Substantially the same as prior Fla.R.P. & G.P. 5.130(a) and (b) and carries forward prior procedures as to a matter upon which FPC is silent.
1984 Revision: This rule has been completely changed to set forth the procedure for the issuance and return of a commission. The rule has been broadened to allow anyone authorized by Florida Statutes or by the U.S. Code to be a commissioner as well as those authorized by the state or country where the witness resides.
The rule now provides that the petitioner or his attorney shall forward the commission to the commissioner. The rule also contemplates that a Florida notary may be appointed as commissioner to take the proof of a witness outside the State of Florida. Committee notes revised and expanded.
Statutory References
F.S. 738.201 Proof of wills.
F.S. 92.50 Oaths, affidavits, and acknowledgments; who may take or administer; requirements.
22 U.S.C. § 1195 Notarial acts, oaths, affirmations, affidavits, and depositions; fees.
Rule 5.240. NOTICE OF ADMINISTRATION
(a) Publication and service. Upon After issuance of letters, the personal representative shall publish a notice of administration and promptly serve a copy of the notice in the manner provided for formal notice in these rules on the surviving spouse and all beneficiaries known to the personal representative according-to-the-requirements of Fla.R.P. &-GrP»-5,040(a) who have not been barred by FPC 733.2-1-23-or other provisions of-the-Code law.
(b) Contents. 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 the time provided by law:
(1) all claims against the estate; and
(2) any objection by an interested person ■upon on whom notice was served that challenges the validity of the will, the qualifications of the personal representative, and the venue or jurisdiction of the court.
(b) (c) Method of publication and proof. Publication shall be onee-a^ week — for two consecutive weeks, two publieations-being sufficient,-in-⅛ -newspaper published in the county where the estate is administered, or ■if — there-is.no newspaper published in the eounty-in-armewspaper- of general circulation-in — that-county made as required by law. Proof of publication shall be filed with the court within 45 days of the first publication.
(d) Objections. Objections to the validity of the will shall follow the form and procedure set forth in these rules pertaining to revocation of probate. Objections to the qualifications of the personal representative shall follow the form and procedure set forth in these rules pertaining to removal of a personal representative. Objections to the venue or jurisdiction of the court shall follow the form and procedure set forth in the Florida Rules of Civil Procedure.
Committee Notes
It is the committee’s opinion that the failure to timely file the proof of publication of the notice of administration shall not affect time limitations for filing claims or objections.
Rule History
1977 Revision: Former paragraph (c) is deleted as being substantive rather than procedural.
1984 Revision: Editorial changes; new requirement to file proof of publication; new requirements as to form of objections to will and qualifications of personal representative. Committee notes revised.
Statutory References
F.S. 732.5165 Effect of fraud, duress, mistake, and undue influence.
F.S. 733.109 Revocation of probate.
F.S. 733.212 Notice of administration; filing of objections and claims.
F.S. 733.2123 Adjudication before issuance of letters.
F.S. 733.302 Who may be appointed personal representative.
F.S. 733.303 Persons not qualified.
F.S. 733.305 Trust companies and other corporations and associations.
F.S. 733.702 Limitations on presentation of claims.
Rule References
Fla.R.P. & G.P. 5.025 Adversary proceedings.
Fla.R.P. & G.P. 5.180 Notice; waiver.
Fla.R.P. & B.P. 5.270 Revocation of probate.
Fla.R.P. & G.P. 5.440 Proceedings for removal.
Fla.R.P. & G.P. 5.490 Form and manner of presenting claim.
Rule 5.260. CAVEAT; PROCEEDINGS
(a) Filing. If Any creditor of the estate of a decedent is apprehensive that the estate will be administered without his knowledge, or if any interested person other than a creditor is apprehensive that an estate may be administered or that a will may be admitted to probate without his knowledgeT he may file a caveat with the court.
(b) Contents. The No caveat shall be effective, unless it contains contain a statement of the interest of the caveator in the estate, the name and specific mailing address, and resident residence address of the caveator.
(c) Resident agent of caveator; service. If the caveator is not a resident of Florida 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. If the caveator is represented by an attorney admitted to practice in Florida who signs the caveat, it shall not be necessary to designate a resident agent under this rule.
(d) Filing after commencement. 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.
(e) Creditor. When letters of administration issue after the filing of a caveat by a creditor, the clerk shall forthwith notify such the 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 the caveator. A copy of any notice required to be given by the clerk herein, together with a certificate of the mailing of the original notice thereof, shall be filed in the estate proceedings.
{e) (f) Other interested persons; before commencement. 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 or appoint a personal representative without service of formal notice on the caveator or his designated agent according to Fla»- R.P. C.P. 5.040 and compliance with FPC 733.2123.
(f) The caveator other than a creditor in his answer shall-state his interest in the estate and facts constituting the ground on which he oppeses-the probate of the will, and on the issue made and proof adduced, the court shall-probate the will or-deny probate thereof-
Committee Notes
Caveat proceedings permit a creditor or other interested person to be notified when letters of administration are issued. Thereafter, the caveator must take appropriate action to protect his interests.
This rule treats the creditor caveator different from other caveators.
Rule History
1977 Revision: Carried forward prior Fla.R.P. & G.P. 5.150.
1984 Revision: Changes in (a), (b), and (d) are editorial. Change in (c) eliminates resident agent requirement for Florida residents and for nonresidents represented by a Florida attorney. Service on the attorney binds caveator. Former (e) is now paragraphs (e) and (f) and treats creditor cave-ator differently from other interested persons. Change in (f) requires formal notice. Committee notes revised.
Statutory References
F.S. 731.110 Caveat; proceedings.
F.S. 733.203(1) Notice; when required.
Rule Reference
Fla.R.P. & G.P. 5.040(a) Notice.
Rule 5.270. REVOCATION OF PROBATE
(a) Petition and contents. A petition for revocation of probate shall state the interest of the petitioner in the estate and the facts constituting the grounds upon on which revocation is demanded.
(b)-Proceedings-shall follow the requirements of Fla.R-P- & G.P. 5.025.
(c) Any person interested in the estate may appear and prosecute or defend as a party.
(d) (b) Continued administration. Pending the determination of any issue made for revocation of probate, the personal representative shall continue to administer the estate of the decedent, as- if no such issue had been made,-but no distribution may be made-to- devisees-in-contravention of the rights of those.who, but for such will, would be entitled-to-the property disposed of thereby.
Committee Notes
Rule History
1984 Revision: Extensive changes. Committee notes revised.
Statutory References
F.S. 733.109 Revocation of probate.
F.S. 733.212 Notice of administration; filing of objections and claims.
F.S. 733.2123 Adjudication before issuance of letters.
Rule Reference
Fla.R.P. & G.P. 5.025 Adversary proceedings.
Rule 5.280. Deleted September 13, 1984, Effective January 1, 1985
Committee Notes
Rule History
1984 Revision: The rule has been deleted because it is now covered by rule 5.210. See Fla.R.P. & G.P. 5.210 and F.S. 733.204. Rule 5.290. Deleted September 13, 1984, Effective January 1, 1985.
Committee Notes
Rule History
1984 Revision: The rule has been deleted because it is now covered by rule 5.210. See Fla.R.P. & G.P. 5.210 and F.S. 733.205. Rule 5.340. INVENTORY
(a) Contents and filing. Within sixty (60) days after issuance of letters, a The personal representative who is not a curator or a successor to another personal representative who- has previously discharged the duty, shall file an inventory of the property of the estate as required by law. The inventory shall listing it list the estate with reasonable detail and including include for each listed item its estimated fair market value at the date of the decedent’s death. Homestead Real property appearing to be homestead property shall be listed and so designated. Real property located in Florida and personal property wherever situated of a decedent-who is domiciled within this state shall-be inventoried, if-known. — Real and personal — property within- this state owned by-ar-decedent who is -domiciled outside of this state shall be — inventoried.
(b) Extension. On petition the time for filing the inventory may be extended by the court for cause shown without notice, except that the personal representative shall serve a copy of the petition on interested persons described in paragraph (d). A copy of the order shall be served on interested persons.
(c) Amendments. A supplementary or amended inventory containing the information required by paragraph (a) as to each affected item shall be filed and served by the personal representative if:
(1) the personal representative learns of property not included in the original inventory; or
(2) the personal representative learns that the estimated value or description indicated in the original inventory for any item is erroneous or misleading; or
(3) the personal representative determines the estimated fair market value of an item whose value was described as unknown in the original inventory.
(e) (d) Service. The personal representative shall send serve a copy of the inventory and all supplemental and amended inventories on to-all interested persons who have requested it in writing, serve on the personal representative a written request for a copy of the inventory.
(d) If any property nob-included in-the original inventory comes to the knowledge of a personal representative, or if the personal representative learns that the estimated value or description-indicated in the original-inventory-for any item is erroneous or misleading, he shall file a supplementary inventory — showing the estimated value-at the date-of the decedent’s death of the new item or the revised estimated value or-description-and furnish copies in accordance with paragraph (e) of this-rule.
(e) Information. On reasonable request in writing the personal representative shall provide an interested person with information about the estate and shall permit an interested person to examine appraisals on which inventory values are based.
Committee Notes
Constitutional homestead real property is not necessarily a probatable asset (See Basic Practice Under Florida Probate Code, 2d Ed. (1981), pp. 718-721). Disclosure on the inventory of real property appearing to be constitutional homestead property informs interested persons of the homestead issue.
Interested persons are entitled to reasonable information about estate proceedings on proper request, including a copy of the inventory, an opportunity to examine appraisals, and other information pertinent to their interests in the estate. The personal representative must also send a copy of the inventory to the Florida Department of Revenue.
Rule History
1980 Revision: Eliminated the time limit in requesting a copy of the inventory by an interested person or in furnishing it by the personal representative.
1984 Revision: Extensive changes. Committee notes revised.
Statutory References
F.S. 193.052(7) Preparation and filing of returns.
F.S. 732.401 Descent of homestead.
F.S. 732.4015 Devise of homestead.
F.S. 733.604 Inventory.
F.S. 733.605 Appraisers.
F.S. 733.606 Supplementary inventory.
Art. X, § 4, Fla. Const.
Rule References
Fla.R.P. & G.P. 5.060 Request for notices and copies of pleadings.
Fla.R.P. & G.P. 5.405 Proceedings to determine homestead real property.
Rule 5.345. ELECTION OF- FISCAL YEAR, INTERIM ACCOUNTINGS, OBJECTIONS TO -INTERIM AC-COUNTINGS
(a) The personal representative may select a fiscal year.
(b) (a) Contents. The personal representative may elect to file an interim accounting at any time, or the court may require an interim accounting. The interim accounting shall contain include a full and correct account of all cash the receipts and property transactions disbursements of the estate since the date of the last accounting or, and if none, from the commencement of administration and shall also include a schedule statement of the assets of the estate at the end of the accounting period. Real estate-need not be specifically described, but shall be identified as to nature and location. The accounting period may be a fiscal year or any other period selected by the personal representative.
(b) Notice of filing. Notice of filing and a copy of the interim accounting shall be served on interested persons. The notice shall state that objections to the accounting must be filed within 30 days from the date of service of notice.
(c) Substantiating papers--need not be ■filed with the interim accountings, but shall be-av-ailable for inspection wfaen-the court or any interested person requests.
(c) Objection. Any interested person may file an objection to the interim accounting within 30 days from the date of service of notice on him. An objection shall be in writing and shall state with particularity the item or items to which the objection is directed and the grounds upon which the objection is based.
(4)-The — personal—representative—shall serve notice-of- the filing and a copy of the ■interim accounting — on all -interested persons. — The-notice shall state- that it is an application-for the approval of the accounting and shall-notify the person served that any objection to the accounting, or any item thereof, stati-ng-the baais-for-the objection, must be filed in writing within 30 days after-service of notice-or the interim accounting shall be approved as filed.
(d) Service of objections. The objecting party shall serve a copy of the objection on the personal representative and other interested persons.
(e) Any interested person may file an objection, stating the basis -therefor, in writing to -the interim accounting or any item thereof-within 30 days after the notice of filing is-served upon him-in- accordance with-subsection (d).
(e) Approval. The interim accounting shall be deemed approved 30 days from the date of service of the interim accounting on interested persons, unless an objection is filed as provided in the rules.
(f-)--After the-expiration of the~time for filing of objections,- if objections to the interim accounting .have been timely filed, the personal representative or the objecting party may apply-to-the court for a hearing thereon upon reasonable notice to-all interested persons.
(f) Substantiating papers. On reasonable request in writing, the personal representative shall permit an interested person to examine papers substantiating items in an interim accounting.
(g) If no objection is timely filed.to an interim accounting-,-the accounting shall be deemed approved as filed and -thereafter not subject to objection by any-interested person.
Committee Notes
The personal representative is required to file a final accounting when administration is complete, unless filing is waived by interested persons. Additionally, a personal representative may elect, but is not required, to file interim accountings at any time. The filing, notice, objection, and approval procedure is similar to that for final accounts.
Rule History
1977 Revision: Change in (a) to authorize selection of fiscal year.
1980 Revision: Change in (d) of prior rule to require the notice to state that the basis for an objection is necessary. Change in (e) of prior rule to require any person filing an objection to set forth the basis of such objection.
1984 Revision. Extensive changes. Committee notes revised.
Statutory Reference
F.S. 733.901 Distribution; final discharge.
Rule Reference
Fla.R.P. & G.P. 5.400 Distribution and discharge; notice.
Rule 5.350. CONTINUANCE OF UNINCORPORATED BUSINESS OR VENTURE OF DECEDENT
(a) Separate accounts and reports. In the conduct of an unincorporated business or venture, the personal representative shall keep separate, full, and accurate accounts of all receipts and expenditures and make reports as the court may require.
(b) Petition; contents. If the personal representative determines it to be in the best interest of the estate to continue an unincorporated business or venture b