Citations
- 824 So. 2d 849
Full opinion text
PER CURIAM.
The Probate Rules Committee of The Florida Bar (rules committee) has filed an emergency petition to amend the Florida Probate Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.
In 2001, the Florida Legislature passed extensive revisions to the Florida Probate Code. See ch. 2001-226, Laws of Fla. The rules committee filed the instant petition on an emergency basis because the January 1, 2002, effective date of the statutes necessitated these amendments. In the interest of judicial economy, the rules committee also proposes a number of technical and clarifying amendments. Pursuant to Florida Rule of Judicial Administration 2.130(e), the proposed changes were submitted to the Board of Governors of The Florida Bar for its recommendation. After approval by the Board, this Court ordered publication of the proposed changes. No comments were filed.
We have reviewed the proposed amendments and adopt them as submitted and set forth in the appendix to this opinion. The new language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately and shall be applicable to decedents dying after December 31, 2001.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur.
APPENDIX
RULE 5,070, SUBPOENA
Florida Rule of Civil Procedure-1.410 shall apply in probate and guardianship proceedings.
Committee-Notes
Rule History
1975 — Revision:—Same—as prior rule &07C
1977 Revision: Citation form change in rule and committee note-
1988 Revision: Citation form change in committee notes.-
1992 Revision: Editorial change. — Citation form change in committee notesv
RULE 5.080. DISCOVERY AND SUBPOENA
(a) Application Adoption of Civil Rules. The following Florida Rules of Civil Procedure relating to discovery shall apply in ah. 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.
(6) Rule 1.330, úse 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, 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 1.410, subpoena.
(b) Limitations and Costs. In order to conserve the assets of the estate, the court has broad discretion to limit the scope and the place and manner of the discovery and may to assess the costs, including attorneys’ fees, of the discovery against the party making it or against 1 or more of the beneficiaries of the estate or against the ward in such proportions as the court determines, considering, among other things factors, the benefit derived therefrom.
(c) Application. It is not necessary to have an adversary proceeding under rule 5.025 to utilize the rules adopted in subdivision (a) above. Any interested person may utilize the rules adopted in subdivision (a).
Committee Notes
Subdivision (b) is not intended to result in the assessment of costs, including attorney’s fees, in every instance in which discovery is sought. Subdivision (c) is not intended to overrule the holdings in In re Estate of Shaw, 340 So.2d 491 (Fla. 3d DCA 1976), and In re Estate of Posner, 492 So.2d 1093 (Fla. 3d DCA 1986).
Rule History
1975 Revision: This rule is the same as prior rule 5.080, broadened to include guardianships and intended to clearly permit the use of discovery practices in non-adversary probate and guardianship matters.
1977 Revision: Editorial change in citation form in committee note.
1984 Revision: Florida Rules of Civil Procedure 1.290, 1.300, 1.351, and 1.410 have been added.
1988 Revision: Subdivision (a)(15) deleted as duplicative of rule 5.070 Subpoena. Editorial change in (b). Citation form change in committee notes.
1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.
1996 Revision: Reference to rule 1.400 eliminated because of deletion of that rule from the Florida Rules of Civil Procedure. Editorial change.
2002 Revision: Reference to rule 1.410 transferred to subdivision (a) from former rule 5.070. Subdivision (b) amended to give court discretion to assess attorneys’ fees. Subdivision (c) added. Committee notes revised.
Statutory References
§ 731.201(21), Fla. Stat. General definitions.
§ 733.106, Fla. Stat. Costs and attorney^ fees.
§ 744.105, Fla. Stat. Costs.
§ 744.108, Fla. Stat. Guardian’s and attorney’s fees and expenses.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. R. Jud. Admin. 2.070 Court reporting.
RULE 5.200. PETITION FOR ADMINISTRATION
The petition for administration shall be verified by the petitioner and shall contain:
(a) a statement of the interest of the petitioner, the petitioner’s name and address, and the name and office address of the petitioner’s attorney;
(b) the name, last known address, social security number, and date and place of death of the decedent, and the state and county of the decedent’s domicile;
(e)so far as is known, the names and addresses of the surviving spouse, if any, and the beneficiaries and their relationship to the decedent and the date of birth of any who are minors;
(d) a statement showing venue;
(e) the priority, under the Florida Probate -Gode code, of the person whose appointment as the personal representative is sought and a statement that the person is qualified to serve under the laws of Florida;
(f) if the decedent was a nonresident of this state, a statement whether domiciliary or principal proceedings are pending in another state or country, if known, and the name and address of the foreign personal representative and the court issuing letters;
(g) a statement of the approximate value and nature of the assets;
(h) in an intestate estate, a statement that after the exercise of reasonable diligence the petitioner is unaware of any unrevoked wills or codicils, or if the petitioner is aware of any unrevoked wills or codicils, a statement why the wills or codicils are not being probated, or otherwise a statement of the facts concerning any such will or codicil;
(i) in a testate estate, a statement identifying all unrevoked wills and codicils being presented for probate, and a statement that the petitioner is unaware of any other unrevoked will or codicil or, if the petitioner is aware of any other unrevoked wills or codicils, a statement why the other wills or codicils are not being probated; and
(j) in a testate estate, a statement that the original of the decedent’s last will is in the possession of the court or accompanies the petition, or that an authenticated copy of a will deposited with or probated in another jurisdiction or that an authenticated copy of a notarial will, the original of which is in the possession of a foreign notary, accompanies the petition.
Committee Notes
Rule History
1977 Revision: Addition to (b)(5) to require an affirmative statement that the person sought to be appointed as personal representative is qualified to serve. Committee note expanded to include additional statutory references.
Substantially the same as section 733.202, Florida Statutes, and implementing sections 733.301 through 733.305, Florida Statutes.
1988 Revision: Editorial changes. Committee notes revised.
1992 Revision: Addition of phrase in subdivision (b) to conform to 1992 amendment to section 733.202(2)(b), Florida Statutes. Reference to clerk ascertaining the amount of the filing fee deleted in subdivision (g) because of repeal of sliding scale of filing fees. The remaining language was deemed unnecessary. Editorial changes. Committee notes revised. Citation form changes in committee notes.
2002 Revision: Addition of phrases in subdivision CD to add references to wills probated in Florida where the original is in the possession of a foreign official. Editorial changes. Committee notes revised.
Statutory References
§ 731.301, Fla. Stat. Notice; — method: and time;--proof
§ 733.202, Fla. Stat. Petition.
§ 733.302, Fla. Stat. Who may be appointed personal representative.
§ 733.303, Fla. Stat. Persons not qualified.
§ 733.304, Fla. Stat. Nonresidents.
§ 733.305, Fla. Stat. Trust companies and other corporations and associations. Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.201 Notice of petition for administration.
RULE 5.205. 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: not later than 3 months following the date of the first publication of the notice of administration.
(2) Ancillary proceedings: not later than 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.
(7) Determination of protected homestead: at any time prior to entry of the final judgment determining protected homestead status of real property.
(8) Probate of will without administration: at any time prior to entry of the order admitting will to probate.
(b) Waiver. On verified petition by the personal representative, if any, or the petitioner the court may enter an order 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.
1988 Revision: Editorial and substantive changes. Adds (a)(8) to require filing when will is admitted to probate without administration of the estate or an order disposing of property. Committee notes revised.
1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.
2002 Revision: Replaces “homestead” with “protected homestead” in (a)(7) to conform to addition of term in section 731.201(29), Florida Statutes. Committee notes revised.
Statutory References
§ 731.103, Fla. Stat. Evidence as to death or status.
§ 733.212, Fla. Stat. Notice of administration; fifing of objections and claims.
Rule References
Fla. Prob. R. 5.042(a) Time.
Fla. Prob. R. 5.171 Evidence of death.
Fla. Prob. R. 5.240 Notice of administration.
RULE 5.210. PROBATE OF WILLS WITHOUT ADMINISTRATION
(a)Manner. On — petitiom-the- will of -a decedent may-dae-admitted-tO' probate by fifing:
(-1-) a self-proved will executed as required by law;-or
(2) the wffl-and the written oath of a person authoriaed- by statute- proving the
execution of the-will-as required by law; or
(3) an authenticated copy of a notarial m441 — the originai-of which fe in the possession-of a foreign notary if the will was valid under the laws.of the-state- or coub-try where-the testator was at the -time of execution; or
(4) an authenticated copy of the will if the original could have been admitted to probate in Florida; or
(5) ar-wi-i-l-or a photographic copy-of a will written in a foreigm-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 -w4fi-to probate the court shall- establish the correct English translation.
(b) Petition. The petition shall contain the name, last known address, date and place of-death of the decedent, and the state, county, and, if — applicable, foreign country of the decedenfis-domicile.
(c) 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.
A petition to admit a decedent’s will to probate without administration shall be verified by the petitioner and shall contain:
(a) a statement of the interest of the petitioner, the petitioner’s name and address, and the name and office address of the petitioner’s attorney;
(b) the name, last known address, social security number, date and place of death of the decedent, and state and county of the decedent’s domicile;
(c) so far as is known, the names and addresses of the surviving spouse, if any, and the beneficiaries and their relationships to the decedent, and the date of birth of any who are minors;
(d) a statement showing venue;
(e) a statement whether domiciliary or principal proceedings are pending in another state or country, if known, and the name and address of the foreign personal representative and the court issuing; letters;
(f) a statement that there are no assets subject to administration in Florida;
(g) a statement identifying all unre-voked wills and codicils being presented for probate and a statement that the petitioner is unaware of any other unrevoked will or codicil or, if the petitioner is aware of any other unrevoked wills or codicils, a statement why the other wills or codicils are not being probated; and
(h) a statement that the original of the decedent’s last will is in the possession of the court or accompanies the petition, or that an authenticated copy of a will deposited with or probated in another jurisdiction or that an authenticated copy of a notarial will, the original of which is in the possession of a foreign notary, accompanies the petition.
Committee Notes
Examples illustrating when a will might be admitted to probate are when an instrument (such as a will or trust agreement) gives the decedent a power exercisable by will, such as the power to appoint a successor trustee or a testamentary power of appointment. In each instance, the will of the person holding the power has no legal significance until admitted to probate. There may be no assets, creditors’ issues, or other need for a probate beyond admitting the will to establish the exercise or non-exercise of such powers.
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 rules 5.280, 5.290, and 5.500 are included in this rule. Committee notes revised.
1988 Revision: Editorial and substantive changes. Change in (a)(3) to clarify which law determines validity of a notarial will; change in (a)(4) to clarify requirement that will of a Florida resident must comply with Florida law; adds new subdivision (b) to set forth required contents of petition for probate of will; moves former (b) to (c). Committee notes expanded; citation form change in committee notes.
1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.
1996 Revision: Subdivision (a)(4) changed to allow authenticated copies of wills to be admitted to probate if the original is filed or deposited in another jurisdiction.
2002 Revision: Substantial revision to the rule setting forth the requirements of a petition to admit a will to probate when administration is not required. Self proof of wills is governed by the Florida Statutes. Former subdivision (a)(4) amended and transferred to new rule 5.215. Former subdivision (a)(5) amended and transferred to new rule 5.216.
Statutory References
§ 731.201, Fla. Stat. General definitions.
§ 732.502, Fla. Stat. Execution of wills.
§ 732.503, Fla. Stat. Self-proof of will.
§ 733.201, Fla. Stat. Proof of wills.
§ 733.202, Fla. Stat. Petition.
§ 733.204, Fla. Stat. Probate of a will written in a foreign language.
§ 733.205, Fla. Stat. Probate of notarial will.
§ 733.206, Fla. Stat. Probate of will of resident after foreign probate.
§ 733.207, Fla. Stat. Establishment and probate of lost or destroyed will.
§ 733.502, Fla. Stat. Resignation of personal representative.
§ 733.503, Fla. Stat. Appointment of successor upon resignation.
§ 734.104, Fla. Stat. Foreign wills; admission to record; effect on title.
Rule Reference
Fla. Prob. R. 5.015 General definitions.
RULE 5.215 AUTHENTICATED COPY OF WILL
An authenticated copy of a will may be admitted to probate if the original could be admitted to probate in Florida.
Committee Notes
Rule History
2002 Revision: New rule, derived from former rule 5.210(a)(4).
Statutory References
dent’s testate estate with property not exceeding $50,000 in this state; determination of claims.