Florida Bar (531 So. 2d 1261, 1988)

Citations

531 So. 2d 1261

Full opinion text

PER CURIAM.

The Probate and Guardianship Rules Committee of The Florida Bar and the Probate and Guardianship Rules Committee of the Real Property, Probate and Trust Law Section, acting as a joint committee, have submitted their quadrennial petition for amendments to the Rules of Probate and Guardianship Procedure. According to the petition, amendments were deemed necessary because of changes in statutory procedures and causes of action, changes brought about by court decisions, and suggestions which were submitted by interested members of the Bar and members of the judiciary.

The committee also points out that pursuant to this Court’s direction in The Florida Bar Re Emergency Amendments to Florida Rules of Probate and Guardianship Procedure, 460 So.2d 906 (Fla.1984), it has endeavored to identify those portions of the Florida Probate Code which contain procedural provisions and to include within the proposed amendments rules incorporating those procedures. Because of its understanding that the legislature proposes a massive revision of the Florida guardianship law, the committee did not undertake the same task except in one instance with respect to the guardianship rules.

The committee suggests that the two most significant changes in its proposed amendments are found in rule 5.346 on the subject of fiduciary accounting and rule 5.360 concerning elective share and preexisting dower.

All of the proposed amendments were unanimously approved by the Board of Governors of The Florida Bar and the Executive Council of the Real Property Section of The Florida Bar. Notice of the proposed amendments has been published in The Florida Bar News. No objections have been filed with this Court.

At oral argument, counsel advised that the recent decision of the United States Supreme Court in Tulsa Professional Collection Services, Inc. v. Pope, — U.S. —, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), appeared to have necessitated additional amendments to the rules as they relate to notice to creditors. Therefore, at this Court’s request, the committee subsequently submitted a proposed amendment to rule 5.240 and the addition of rule 5.495 to accommodate the requirements of Pope.

The proposed amendments which are attached hereto are hereby approved and shall become effective on January 1, 1989. The committee notes are included for explanation and guidance only and are not adopted as an official part of the rules.

It is so ordered.

EHRLICH, C.J., and OVERTON, McDonald, shaw, barkett, GRIMES and KOGAN, JJ., concur.

RULE 5.010. SCOPE

These rules govern the procedure in all probate and guardianship proceedings and shall be known as the Florida Rules of Probate and Guardianship Procedure and may be cited as Fla.R.P. & G.P. 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.

Proposed Rule

RULE 5.010. SCOPE

These rules govern the procedure in all probate and guardianship proceedings and shall be known as the Florida-Rules of Probate and Guardianship Procedure Florida Probate Rules and may be cited as Fla.R,P, & G.P. FPR. 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 Florida Rules of Civil Procedure apply only as provided herein.

Committee Notes

In the opinion reported at 460 So.2d 906, the Florida Supreme Court directed the Probate and Guardianship Rules Committee to study the statutes and attempt to identify those portions of the Florida Probate Code, the Florida Guardianship Law, and other statutes that contained procedural provisions. When those procedural provisions were identified, the committee was charged to promulgate rules incorporating those procedures.

The committee has reviewed the statutes and has found a substantial measure of procedure that was contained only in the statutes for which there were no corresponding rules. The committee also determined that much of the procedure in the statutes already had a rule counterpart.

New rules added, or prior rules amended, in 1988 to add procedural matters previously found only in the statutes are Rules 5.050, 5.122, 5.171, 5.180, 5.201, 5.235, 5.270, 5.275, 5.340, 5.355, 5.360, 5.385, 5.386, 5.400, 5.440, 5.475, 5.490, and 5.510. With only one exception (see Rule 5.050), the only portion of the statutes that has been reviewed in detail, and for which rules have been created, is the Florida Probate Code. Other portions of the statutes mentioned in the opinion cited above remain for the next cycle of this committee to review.

As the committee wrote rules to transfer the statutory procedure into these rules, an attempt was made to write the rule without changing the meaning of the statute. It was not possible or advisable to use the exact wording of the statute in some instances, and in those instances the committee rewrote the statutory language in the format used in the rules generally. Even under those circumstances, the committee attempted to transfer the entire procedural portion of the statute without changing its meaning. Where it was specifically intended in a few instances to add to existing statutory procedure, that fact is noted in the relevant committee note. The committee felt strongly that it would be detrimental to the orderly process of estate probate and related procedures if a rule specified a different procedure than was specified in the related statute, even though the statute must, under the Florida Constitution, yield to the rule when there is a conflict.

The committee, through the proper channels in The Florida Bar (initially, the Probate Law Committee of the Real Property, Probate and Trust Law Section), intends to ask the legislature to repeal those portions of the statutes that are procedural when there are similar rules already in place, or when similar new rules are added by this opinion. It is the opinion of the committee that continuing to maintain procedure in the statutes when there is a rule specifying that procedure is detrimental to the orderly process of the court and the public that it serves, especially when, over time, the statute and the rule may diverge.

Although the Supreme Court has adopted these recommended rules, it has not specifically determined that all of the provisions of the statutes that were procedural have now been adopted as a rule. This is a continuing project for the committee and although these new rules and changes represent a substantial transition of procedure into the rules, the committee does not suggest that the transition is complete. The court is not precluded from examining any particular statute or rule in the context of a particular actual dispute.

Rule History

1975 Revision: 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 F.S. 731.011.

1977 Revision: The changes in these rules shall take effect on July 1, 1977.

1988 Revision: Committee notes expanded. Citation form changes in rule and committee notes.

Rule References

FPR 5.025 Adversary proceedings.

FPR 5.040(a)(3)(C) Notice.

FPR 5.050 Transfer of proceedings.

FPR 5.070 Subpoena.

FPR 5.080 Discovery.

FPR 5.230(e) Commission to prove will.

Committee Vote: Unanimous

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 Fla.R.P. & G.P. 5.190 and 5.540.)

Proposed Rule

RULE 5.015. GENERAL DEFINITIONS

Words not defined in-these rules-shall have the meanings as defined- in the-Flor-ida Probate-Code and Florida Guardianship ■Law, as amended from time-to time, — (See Fla.R.P, & G.P. 5.190 and 5,540.)

(a) General. The definitions and rules of construction stated or referred to in F.S. § 1.01, and Chapters 731, 732, 733, 734, 735, 737, 738, and 744, as amended from time to time, shall apply to these rules, unless otherwise defined in these rules.

(b) Specific definitions. When used in these rules

(1) “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;

(2) “formal notice” means notice under FPR 5.040(a);

(3) “informal notice” means notice under FPR 5.040(b);

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

Committee Notes

Rule History

1977 Revision: No change in rule. Correction of typographical error in committee note.

This is intended to simplify drafting of these rules and should be liberally construed. See FPR 5.190 and 5.540 and also F.S. 731.201 and F.S. 744.102.

1988 Revision: Rule was expanded due to deletion of FPR 5.190. Committee notes expanded. Citation form changes in rule and committee notes.

Statutory References

F.S. 1.01 Definitions.

F.S. 731.201 General definitions.

F.S. 744.102 Definitions.

Committee Vote: Unanimous

RULE 5.020. PLEADINGS; VERIFICATION; MOTIONS

(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 substan-tia] rights, and no defect in the statement of jurisdictional facts actually existing renders any proceeding void.

(b) Petition. 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 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 served not later than ten days after 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, 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.”

Proposed Rule

RULE 5.020. PLEADINGS; VERIFICATION; MOTIONS

(a) Forms of Pleading, 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) [NO CHANGE RECOMMENDED]

(d) [NO CHANGE RECOMMENDED]

(e) [NO CHANGE RECOMMENDED]

Committee Notes

The time for determining when a motion for rehearing must be served has been clarified in view of 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 FPR 5.030. Paragraph (c) taken from F.S. 731.104. For adversary proceedings see new FPR 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.

1988 Revision: Editorial change in caption of (a). Committee notes revised. Citation form change in committee notes.

Statutory References

F.S. 731.104 Verification of documents.

F.S. 731.201 General definitions.

F.S. 733.202 Petition.

F.S. 733.604(2) Inventory.

F.S. 735.103 Petition for family administration.

F.S. 735.203 Petition for summary administration.

F.S. 744.104 Verification of documents.

F.S. 744.331(1) Adjudication of person mentally or physically incompetent; procedure.

F.S. 744.334 Petition for appointment of guardian; contents.

Rule References

FPR 5.025 Adversary proceedings.

FPR 5.200 Petition for administration.

FPR 5.205(b) Filing evidence of death.

FPR 5.320 Oath of personal representative.

FPR 5.350 Continuance of unincorporated business or venture.

FPR 5.370(a) Sales of real property where no power conferred.

FPR 5.405(b) Proceedings to determine homestead real property.

FPR 5.520 Family administration.

FPR 5.530 Summary administration

FPR 5.550 Petition to determine competency.

FPR 5.560 Petition for appointment of guardian; notice.

FPR 5.600 Oath.

Committee Vote: Unanimous

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.

(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.

Proposed Rule

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, remove a guardian, surcharge a guardian, 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 on all other interested persons.

(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 Florida 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.

(5) After When 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,

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.

1988 Revision: Changes in (a) add proceedings to remove a guardian and to surcharge a guardian to the list of specific adversary proceedings and deletes proceedings to determine and award the elective share from the list. Change in (b)(4) clarifies on whom the petitioner niust serve formal notice. Editorial change in (d)(2) and (d)(5). Committee notes revised. Citation form changes in committee notes.

Statutory References

F.S. 731.107 Adversary proceedings.

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. 733.504 Causes of removal of personal representative.

F.S. 733.505 Jurisdiction in removal proceedings.

F.S. 733.506 Proceedings for removal.

F.S. 733.507 Administration following resignation or removal.

F.S. 733.603 Personal representative to proceed without court order.

F.S. 733.609 Improper exercise of power; breach of fiduciary duty.

F.S. 733.619(2) and (4) Individual liability of personal representative.

F.S. 733.814 Partition for purpose of distribution.

F.S. 744.474 Reasons for removal of guardian.

F.S. 744.477 Proceedings for removal.

Rule References

FPR 5.040 Notice.

FPR 5.270 Revocation of probate.

FPR 5.360 Duty to pay elective share.

FPR 5.440 Proceedings for removal.

FPR 5.660 Proceedings for removal of guardian.

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.

Committee Vote: Unanimous

RULE 5.030. ATTORNEYS

(a) Withdrawal. An attorney of record will not be permitted to withdraw unless his withdrawal is sanctioned by the court. He shall file his petition for withdrawal in the court setting forth his reasons and shall serve a copy on his client and on interested persons.

(b) Required; exception. Every guardian and every personal representative, unless the personal representative remains the sole interested person shall be represented by an attorney admitted to practice in Florida. If the guardian or personal representative is an attorney admitted to practice in 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.

Proposed Rule

RULE 5.030. ATTORNEYS

(b)(a) Required; exception. Every guardian and every personal representative, unless the personal representative remains the sole interested person,, shall be represented by an attorney admitted to practice in Florida. If the guardian or personal representative is an attorney admitted to practice in Florida, he may represent himself as guardian or personal representative.

(c)(b) Limiting appearance. An attorney of record for an interested person in a proceeding governed by the Florida-P-ro-bate Code, the-Florida Guardianship-LawT 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) at the time of appearance the attorney files a notice specifically limits limiting his appearance only to the particular proceeding or matter in which he appears, or

(2) the court orders otherwise.

(a)(c) Withdrawal or limiting appearance. An attorney of record will not be permitted to withdraw unless-his withdrawal is sanctioned-by may withdraw or limit his appearance with approval of the court,, after filing a motion He shall file his-petition for withdrawal in the court setting forth his reasons and shall serve serving a copy on his client and on interested persons.

Committee Notes

The appearance of an attorney in an estate is a general appearance unless (i) specifically limited at the time of such appearance or (ii) the court orders otherwise. 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 FPR 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. Falkner 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 additions of paragraph (c). Committee notes expanded.

1988 Revision: Editorial changes and order of paragraphs rearranged. Committee notes expanded. Citation form changes in committee notes.

Statutory References

F.S. 731.301 Notice; method and time; proof.

F.S. 733.106 Costs and attorney fees.

F.S. 733.212 Notice of administration; filing of objections and claims.

F.S. 733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.

F.S. 744.424 Attorney’s fees and expenses.

Rule References

FPR 5.041(b) Service of pleadings and papers.

FPR 5.110(c) Resident agent.

Fla.R.Jud.Admin. 2.060 Attorneys.

Fla.R.App.P. 9.440 Attorneys.

Committee Vote: Unanimous

RULE 5.040. NOTICE

(a)Formal Notice.

(1) When formal notice is given, a copy of the pleading or motion shall be served on interested persons, together with a notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice, exclusive of the day of service, and to 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 serve written defenses as required may result in a judgment or order 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 within 20 days after service of formal notice on an interested person, the pleading or motion may be considered ex parte as to that person, unless the court orders otherwise.

(3) Formal notice shall be served:

(A)By any form of mail requiring a signed receipt as follows:

(i)on an interested person represented by an attorney by mailing a copy to the attorney; 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

(iii) on an individual by mailing a copy to his usual place of abode or to the place where he regularly conducts business; or

(iv) on an incompetent by mailing a copy to his usual place of abode and to his legal guardian, if any, at his usual place of abode or regular place of business; 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

(v) on a corporation by mailing a copy to 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

(B) As provided by Florida law for service of process; or

(4) If service of process is made pursuant to Florida law, proof of service shall be made as provided therein.

(5) Service of formal notice by mail 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 the verified statement the signed receipt or other evidence satisfactory to the court that delivery was made to the addressee or his agent.

(b) Informal notice. When informal notice of a petition or other proceeding is required or permitted, it shall be served as provided in these rules.

(c) “Notice” defined. In these rules, the Florida Probate Code, and the Florida Guardianship Law “notice” shall mean informal notice unless formal notice is specified.

(d) Formal notice optional. Formal notice may be given in lieu of informal notice at the option of the person giving notice unless the court orders otherwise. When formal notice is given in lieu of informal notice, formal notice shall be given to all interested persons entitled to notice.

Proposed Rule

RULE 5.040. NOTICE

(a)Formal Notice notice.

(3) Formal notice shall be served:

(A)By by any form of mail requiring a signed receipt as follows:

(i) on an interested person represented by an attorney by mailing a copy to the attorney; 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; dr

(iii) on an individual, other than an incompetent, by mailing a copy to his usual place of abode or to the place where he regularly conducts business; or

(v)on a corporation by mailing a copy to 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

(B) As as provided by Florida law for service of process; or

(4) If service of process is made pursuant to Florida law, proof of service shall be made as provided therein.

(b) [NO CHANGE RECOMMENDED]

(d) [NO CHANGE RECOMMENDED]

Committee Notes

Formal notice is the method of service used in probate proceedings and the method of service of process for obtaining jurisdiction over the person receiving the notice.

Informal notice is the method of service of 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.

198⅛ 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 FPR 5.041 and 5.042; eliminates waiver of notice by will.

1988 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

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. 733.203 Notice; when required.

F.S. 733.212 Notice of administration; filing of objections and claims.

F.S. 733.2123 Adjudication before issuance of letters.

F.S. 733.502 Resignation of personal representative.

F.S. 733.613 Personal representative’s right to sell real property.

F.S. 733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.

F.S. 744.106 Notice and virtual representation.

F.S. 744.331(4) Adjudication of persons mentally or physically incompetent; procedure.

F.S. 744.337 Notice of hearing.

F.S. 744.441 Powers of guardian upon court approval.

F.S. 744.447 Petition for authorization to act.

F.S. 744.477 Proceedings for removal.

F.S. ch. 48 Process and service of process.

Constructive service of proF.S. ch. 49 cess.

F.S. 1.01(3) Definitions.

Rule References

FPR 5.025 Adversary proceedings.

Attorneys. FPR 5.030

Service of pleadings and pa-FPR 5.041 pers.

FPR 5.042 Time.

FPR 5.180 Waiver and consent.

FPR 5.550 petency. Petition to determine incom-

FPR 5.560 Petition for appointment of guardian; notice.

Fla.R.Jud.Admin. 2.060 Attorneys.

Fla.R.Civ.P. 1.070 Process.

Fla.R.Civ.P. Form 1.902 Summons.

Committee Vote: Unanimous

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.

Proposed Rule

RULE 5.041. SERVICE OF PLEADINGS AND PAPERS

[NO CHANGE RECOMMENDED]

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 FPR 5.040(d).

1988 Revision: Committee notes revised. Citation form changes in committee notes.

Statutory References

F.S. 731.201 General definitions.

F.S. 731.301 Notice; method and time; proof.

F.S. 733.604(2) Inventory.

Rule References

FPR 5.020 Pleadings; verification; motions.

FPR 5.025 Adversary proceedings.

FPR 5.030 Attorneys.

FPR 5.040 Notice.

FPR 5.042 Time.

FPR 5.150(c) Order requiring accounting.

FPR 5.180(a)(3) Waiver and consent.

FPR 5.240(a) Notice of administration.

FPR 5.550 Petition to determine incompetency.

FPR 5.560 Petition for appointment of guardian; notice.

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) Enlargment. 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.

Proposed Rule

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 computa-tios. Any day the clerk’s office is closed shall be deemed a legal holiday for purposes of this rule.

(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, by order of court, 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 ■The court under this rule may not extend the time for making serving a motion for rehearing or for taking-an-appeal-or-filing a petition for certiorari to enlarge any period of time governed by the Florida Rules of Appellate Procedure.

(d) [NO CHANGE RECOMMENDED]

Committee Notes

This rule is derived from Fla.R.Civ.P! 1.090.

Rule History

1984 Revision: New rule.

1988 Revision: Editorial changes in (a) and (b). Paragraph (a) enlarged to include closing of the clerk’s office as a legal holiday. In Diamond v. Tam-Bay Realty, 462 So.2d 1168, the Second District Court of Appeal suggested that Fla.R.Civ.P. 1.090(b) be clarified to leave no question that the court may not extend the time for rehearing, appeal, or petition for certiorari regardless of whether a request to enlarge the time therefor was made before the expiration of the time allowed. Because the format of Rule 5.042(b) was substantially the same as the format of Rule 1.090(b), paragraph (b) is amended to conform for the sake of clarity. Committee notes revised.

Statutory References

F.S. 683.01 Legal holidays.

F.S. 731.111 Notice to creditors.

F.S. 731.301 Notice; method and time; proof.

F.S. 732.107 Escheat.

F.S. 732.212 Time of election.

F.S. 732.402 Exempt property.

F.S. 732.801(5) Disclaimer of interests in property passing by will or intestate succession or under certain powers of appointment.

F.S. 732.803 Charitable devises.

F.S. 732.901 Production of wills.

F.S. 733.104 Suspension of statutes of limitation in favor of the personal representative.

F.S. 733.212 Notice of administration; filing of objections and claims.

F.S. 733.508 Accounting upon removal.

F.S. 733.604 Inventory.

F.S. 733.701 Notifying creditors.

F.S. 733.702 Limitations on presentation of claims.

F.S. 733.705 Payment of and objection to claims.

F.S. 733.710 Limitations against unad-ministered estates.

F.S. 733.816 Disposition of unclaimed property held by personal representatives.

F.S. 744.427 Annual returns.

F.S. 744.431 Order requiring return; contempt.

Rule References

FPR 5.040(a)(1) Notice.

FPR 5.150 Order requiring accounting.

FPR 5.240 Notice of administration.

FPR 5.340(b) Inventory.

FPR 5.345(a) Interim accountings.

FPR 5.395 Notice of federal estate tax return.

FPR 5.400 Distribution and discharge.

FPR 5.700 Objections to annual ac-countings.

Fla.R.Civ.P. 1.090 Time.

Committee Vote: Unanimous

RULE 5.050. TRANSFER OF PROCEEDINGS

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.

Proposed Rule

RULE 5.050. TRANSFER OF PROCEEDINGS

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

(b) Domicile change, incompetent. When the domicile of an incompetent is changed to another county, the guardian of the person of the incompetent may have the venue of the guardianship changed to the county of the acquired domicile.

Committee Notes

Paragraph (b) of this rule represents a rule implementation of the procedure found in F.S. 744.202(2). The language added as new (b) is identical with the statute.

1975 Revision: Same as F.S. 733.101(3).

1977 Revision: Title changed to indicate that the rule is one dealing with transfer.

1988 Revision: Prior rule renumbered as (a). New (b) is rule implementation of procedure in F.S. 744.202(2). Editorial changes. Committee notes expanded. Citation form changes in rule and committee notes.

Statutory References

F.S. 733.101 Venue of probate proceedings.

F.S. 744.202 Venue.

Rule References

FPR 5.200(b)(4) Petition for administration.

FPR 5.240(b)(2), (d) Notice of administration.

Committee Vote: Unanimous

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 for 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.

Proposed Rule

RULE 5.060. REQUEST FOR NOTICES AND COPIES OF PLEADINGS

(a) Request. An 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 for the personal representative or guardian, noting on the original the fact of mailing.

(b) Notice and copies. 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.

Committee Notes

1975 Revision: This rule substantially incorporates the provisions of prior FPR 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 FPR 5.040(b)(3) may still be required.

1977 Revision: Editorial and citation form change in committee note.

1980 Revision: Caveat, the personal representative may want to give notice to parties even though not required, for example, where an independent action has been filed on an objected claim.

1988 Revision: Captions added to paragraphs. Committee notes expanded. Citation form changes in committee notes.

Statutory Reference

F.S. 731.201 General definitions.

Rule References

FPR 5.040 Notice.

FPR 5.041 Service of pleadings and papers.

Committee Vote: Unanimous

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.

Proposed Rule

RULE 5.065. NOTICE OF CIVIL ACTION OR ANCILLARY ADMINISTRATION

[NO CHANGE RECOMMENDED]

Committee Notes

This rule reflects a procedural requirement not founded on a statute or rule and is in addition to notice by a claimant required by F.S. 733.705(3).

Rule History

1984 Revision: New rule.

1988 Revision: Committee notes expanded.

Statutory References

F.S. 733.612(20) Transactions authorized for the personal representative; exceptions.

F.S. 733.705(3) Payment of and objection to claims.

F.S. 744.441(11) Powers of guardian upon court approval.

RULE 5.070. SUBPOENA

The provisions of Fla.R.Civ.P. 1.410 shall apply in probate and guardianship proceedings.

Proposed Rule

RULE 5.070. SUBPOENA

[NO CHANGE RECOMMENDED]

Committee Notes

1975 Revision: Same as prior FPR 5.070.

1977 Revision: Citation form change in rule and committee note.

1988 Revision: Citation form change in committee notes.

RULE 5.080. 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;

(4) Rule 1.310, depositions upon oral examination;

(5) Rule 1.320, depositions upon written questions;

(б) Rule 1.330, use of depositions in court proceedings;

(7) Rule 1.340, interrogatories to parties;

(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;

(10) Rule 1.360, physical and mental examination of persons;

(11) Rule 1.370, requests for admission;

(12) Rule 1.380, failure to make discovery; sanctions;

(13) Rule 1.390, depositions of expert witnesses;

(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 and the rights of the beneficiaries therein, the court has broad discretion to limit the scope and the place and manner of the discovery and may assess the costs of the discovery to the party 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.

Proposed Rule

RULE 5.080. 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;

(4) Rule 1.310, depositions upon oral examination;

(5) Rule 1.320, depositions upon written questions;

(б) Rule 1.330, use of depositions in court proceedings;

(7) Rule 1.340, interrogatories to parties;

(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;

(10) Rule 1.360, physical and mental examination of persons;

(11) Rule 1.370, requests for admission;

(12) Rule 1.380, failure to make discovery; sanctions;

(13) Rule 1.390, depositions of expert witnesses; and

(14) Rule 1.400, publication of deposition*

(15) Rule 1,410, subpoena.

Committee Notes

Rule History

1975 Revision: This rule is the same as prior FPR 5.080, broadened to include guardianships and intended to clearly permit the use of discovery practices in nonad-versary 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.

1988 Revision: Subparagraph (a)(15) deleted as duplicative of FPR 5.070 Subpoena. Editorial change in (b). Citation form change in committee notes.

Rule References

FPR 5.025 Adversary proceedings.

Fla.RJud.Admin. 2.070 Court reporting.

Committee Vote: Unanimous

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 superse-deas, shall be governed by the Florida appellate rules.

Proposed Rule

RULE 5.100. RIGHT OF APPEAL

Committee Notes

An order that determines rights of a party may be appealed before the administration of the estate is completed (e.g., determination of the validity of a will, or of the rights of a person to participate as an heir in an estate, is a final determination). The rule defines “final orders and judgments” of the probate court that ultimately determine rights of a party in the estate. This rule is substantially the same as former F.S. 732.15 (repealed 1974) except that by rearrangement of that statute the word “finally” has been defined.

1975 Revision: Same as prior FPR 5.100 with editorial changes.

1977 Revision: Citation form change in committee note.

1988 Revision: Committee notes expanded. Citation form changes in rule and committee notes.

Committee Vote: Unanimous

RULE 5.110. RESIDENT AGENT

(a)Requirement and form. Before letters are issued to a personal representative or a guardian, the personal representative or guardian shall file a designation of his place of residence, 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 be filed at the time of filing the designation. The designation by the personal representative or guardian and acceptance by resident agent shall constitute the consent of the personal representative or guardian filing it that service of process or notice 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.

(b) Corporate fiduciaries. Corporate fiduciaries are not required to designate a resident agent.

(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.

(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 10 days after he has notice that such event has occurred.

Proposed Rule

RULE 5.110. RESIDENT AGENT

(a) [NO CHANGE RECOMMENDED]

(b) [NO CHANGE RECOMMENDED]

(c) Attorneys. A member of The Florida Bar residing in Florida, other than the personal representative, 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.

(d) [NO CHANGE RECOMMENDED]

Committee Notes

Rule History

1977 Revision: Change in committee note to conform to statutory renumbering.

Substantially the same as prior FPR 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.

1988 Revision: Change in (c) to clarify that the personal representative, if a member of The Florida Bar, may not also serve as resident agent for service of process or notice. Citation form change in committee notes.

Statutory Reference

F.S. 733.401 Issuance of letters.

Committee Vote: Unanimous

RULE 5.120. ADMINISTRATOR AD LI-TEM AND GUARDIAN AD LITEM

(a) When it is necessary that the estate of a decedent or a ward be represented in any probate or guardianship 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 litem 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 unascertained 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 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 litem.