# Florida Bar

> Supreme Court of Florida · September 29, 1988 · 13 Fla. L. Weekly 601

URL: https://www.frixlaw.com/law-library/cases/7568900

## Case

- **Full name:** THE FLORIDA BAR. In Re RULES OF PROBATE AND GUARDIANSHIP PROCEDURE
- **Court:** Supreme Court of Florida
- **Decided:** September 29, 1988
- **Citations:** 13 Fla. L. Weekly 601; 531 So. 2d 1261; 1988 Fla. LEXIS 1475; 1988 WL 53983
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Barkett, Ehrlich, Grimes, Kogan, McDonald, Overton, Shaw
- **Cited by:** 0 later opinions in the Frix Law Library

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## 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 1 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.
*1263 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.
*1264 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.
*1265 (b) [NO CHANGE RECOMMENDED]
(c) [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.
*1266 (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.
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.
(c) [NO CHANGE RECOMMENDED]
(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.
(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 When the proceedings are determined-to-be adversary, the caption of subsequent pleadings, as an extension of the probate caption, shall include the name *1267 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,
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.
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
*1268 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.
*1269 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
(C) By an elisor as may be provided in the rules of civil procedure.
(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 *1270 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.
(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 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
(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 as provided by Florida law for service of process; or
(C) By by an elisor as may be provided in the rules of civil procedure Florida Rules of Civil Procedure.
(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) [NO CHANGE RECOMMENDED]
(c) [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.
*1271 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 *1272 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.
*1273 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.
(c) [NO CHANGE RECOMMENDED]
(d) [NO CHANGE RECOMMENDED]
Committee Notes
This rule is derived from Fla.R.Civ.P! 1.090.
*1274 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 *1275 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 *1276 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;
*1277 (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.
(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.
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
All orders and judgments of the court determining rights of any party in any particular proceeding in the administration *1278 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 Rules_ofAppellate^rocediare.
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.
*1279 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.
(c) Within ten days after appointment, the petitioner shall deliver or mail conformed copies of the petition for appointment of a guardian ad litem and order to any guardian, or if there is no guardian, to the living natural guardian or the living natural guardian having legal custody of the minor or incompetent.
(d) The guardian ad litem shall deliver or mail conformed copies of any written report or finding of his investigation and his answer filed in the proceedings, petition for compensation and discharge and the notice of hearing on the petition to any guardian, or in the event that there is no guardian, to the living natural guardians or the living natural guardian having legal custody of the minor or incompetent.
(e) Within ten days after appointment, the petitioner for an administrator ad litem shall deliver or mail conformed copies of the petition for appointment and order to the attorney of record of each beneficiary and to each decedent paid by the personal representative does not require appointment of an administrator ad litem, known beneficiary not represented by an attorney of record.
(f) When an administrator ad litem or guardian ad litem recovers any judgment or other relief, it shall be enforced as other judgments. Execution shall issue in favor of the administrator ad litem or guardian ad litem for the use of the estate or ward and the money collected shall be paid to the personal representative or guardian, or as otherwise ordered by the court.
(g) The fact that the personal representative is seeking reimbursement for claims against the decedent paid by the personal representative does not require appointment of an administrator ad litem.
*1280 Proposed Rule
RULE 5.120. ADMINISTRATOR AD LI-TEM AND GUARDIAN AD LITEM
(a) Appointment. 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 li-tem or a guardian ad litem, as the case may be, without bond or notice for that particular proceeding. At any point in a proceeding, a court may appoint a guardian ad litem to represent the interests of an incompetent person, an unborn or unascer-tained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. The administrator ad litem or guardian ad litem shall file his oath to discharge his duties faithfully and upon the filing he shall be qualified to act. No process need be served upon him, but he shall appear and defend as directed by the court.
(b) Petition. The petition for appointment of a guardian ad litem shall state to the best of petitioner’s information and belief:
(1) The 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 the name and address of any guardian appointed for each minor or incompetent;
(3) The the name and residence address of any living natural guardians or living natural guardian having legal custody of each minor or incompetent;
(4) A a description of the interest in the proceedings of each minor or incompetent; and
(5)The the facts showing the necessity for the appointment of a guardian ad litem.
(c) Notice. Within ten 10 days after appointment, the petitioner shall deliver or mail conformed copies of the petition for appointment of a guardian ad litem and order to any guardian, or if there is no guardian, to the living natural guardians or the living natural guardian having legal custody of the minor or incompetent.
(d) Report. The guardian ad litem shall deliver or mail conformed copies of any written report or finding of his investigation and his answer filed in the proceedings, petition for compensation and discharge¿ and the notice of hearing on the petition to any guardian, or in the event that there is no guardian, to the living natural guardian or the living natural guardian having legal custody of the minor or incompetent.
(e) Service of petition and order. Within tea 10 days after appointment, the petitioner for an administrator ad litem shall deliver or mail conformed copies of the petition for appointment and order to the attorney of record of each beneficiary and to each known beneficiary not represented by an attorney of record.
(f) Enforcement of judgments. When an administrator ad litem or guardian ad litem recovers any judgment or other relief, it shall be enforced as other judgments. Execution shall issue in favor of the administrator ad litem or guardian ad litem for the use of the estate or ward and the money collected shall be paid to the personal representative or guardian, or as otherwise ordered by the court.
(g) Claim of personal representative. The fact that the personal representative is seeking reimbursement for claims against the decedent paid by the personal representative does not require appointment of an administrator ad litem.
Committee Notes
1977 Revision: Editorial change in (a) limiting application of rule to probate and guardianship proceedings. In (b) the petition for appointment of a guardian need not be verified. Deletion of (g) as being *1281 substantive rather than procedural and changing former (h) to new (g). Change in committee note to conform to statutory renumbering.
This rule implements F.S. 731.303(5), F.S. 733.308, and F.S. 744.391, and includes some of the provisions of prior FPR 5.230.
1988 Revision: Editorial changes; captions added to paragraphs. Citation form changes in committee notes.
Committee Vote: Unanimous
Proposed Rule
RULE 5.122 CURATORS
(a) Appointment. When it is necessary, the court may appoint a curator to take possession of a decedent's estate until letters of administration are granted. On appointment, the court shall issue letters of curatorship which shall entitle the curator to possession of the decedent’s property, which the court may enforce by contempt proceedings.
(b) Notice. If the person entitled to letters is a resident of the county where the proceeding is filed, no curator shall be appointed until formal notice is given to him. If it is likely that the decedent’s property will be wasted, destroyed, or removed beyond the jurisdiction of the court and if the appointment of a curator would be delayed by giving notice, the court may appoint a curator without notice.
(c) Powers. On order of the court, the curator may be authorized to perform any duty or function of a personal representative including publication of notice to creditors, or if a will has been admitted, notice of administration.
(d) Bond. Bond shall be required of the curator as the court deems necessary to secure the property. No bond shall be required of banks and trust companies as curators.
(e) Inventory and accounting. The curator shall file an inventory within 20 days. When the personal representative qualifies, the curator shall immediately account and deliver all assets of the estate in his possession to the personal representative within 20 days, and in default, shall be subject to the provisions of these rules relating to removal of personal representatives.
Committee Notes
This rule represents a rule implementation of the procedure found in F.S. 733.501. It is not intended to change the effect of the statute from which it was derived but has been reformatted to conform with the structure of these rules. It is not intended to create a new procedure or modify an existing procedure, except that paragraph (c) of this rule is specific regarding two acts which the curator may be authorized to perform with order of court. This specificity of example was not included in the statute, and the committee, by including this specification, did not intend to limit the authorized acts to those two specified in the rule.
Rule History
1988 Revision: New rule.
Statutory Reference
F.S. 733.501 Curators.
Committee Vote: For: 12
Against: 1
RULE 5.150. ORDER REQUIRING ACCOUNTING
(a) Accountings required by statute. When any personal representative or guardian fails to 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 file the accounting or return within 15 days from the service on him of the order, or show cause why he should not be compelled to do so.
(b) Accountings not required by statute. On the petition of an interested person, or 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. 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.
*1282 (c) Service. A copy of the order shall be served on the personal representative or guardian and his attorney.
Proposed Rule
RULE 5.150. ORDER REQUIRING ACCOUNTING
[NO CHANGE RECOMMENDED]
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 applications for discharge; hearing.
RULE 5.160. PRODUCTION OF ASSETS
On the petition of an interested person, or on its 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 the assets for the inspection of the interested person or the court.
Proposed Rule
RULE 5.160. PRODUCTION OF ASSETS
On the petition of an interested person, or on its own motion, the court may require any personal representative or guardian to produce satisfactory evidence that the assets of the estate are in his possession or under his control and may order production of the assets for the inspection-of the interested person or in the manner and for the purposes directed by the court.
Committee Notes
Rule History
1977 Revision: Change in committee notes.
1984 Revision: Minor editorial changes. Committee notes revised.
1988 Revision: Editorial changes.
Statutory Reference
F.S. 744.434 Production of assets.
Committee Vote: Unanimous
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 Florida Probate Code, the Florida Guardianship Law, or these rules.
Proposed Rule
RULE 5.170. EVIDENCE
[NO CHANGE RECOMMENDED]
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.
*1283 Proposed Rule
RULE 5.171 EVIDENCE OF DEATH
In a proceeding under these rules, the following shall apply:
(a) Death certificate. An authenticated copy of a death certificate issued by an official or agency of the place where the death purportedly occurred or by an official or agency of the United States is prima facie proof of the fact, place, date, and time of death and the identity of the decedent.
(b) Other records. A copy of any record or report of a governmental agency, domestic or foreign, that a person is dead, alive, missing, detained, or, from the facts related, presumed dead is prima facie evidence of the status, dates, circumstances, and places disclosed by the record or report.
(c) Extended absence. A person who is absent from the place of his last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed dead. His death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier.
Committee Notes
This rule represents a rule implementation of the procedure found in F.S. 731.103. It is not intended to change the effect of the statute from which it was derived but has been reformatted to conform with the structure of these rules. It is not intended to create a new procedure or modify an existing procedure, except that additional language has been added which was not in the statute, to permit issuance of a death certificate by an official or agency of the United States. An example would be such a certificate issued by the Department of State or the Department of Defense.
Rule History
1988 Revision: New rule.
Statutory Reference
F.S. 731.103 Evidence as to death or status.
Rule Reference
FPR 5.205 Filing evidence of death.
Committee Vote: Unanimous
RULE 5.180. NOTICE; WAIVER
A person, including a representative person, a guardian ad litem, administrator ad litem, guardian of the property, or, if none, the natural guardian, personal representative, trustee, or other fiduciary may
(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 between him and the persons he represents.
Proposed Rule
RULE 5.180. NOTICE; WAIVER AND CONSENT
A An interested person, including a representative person, a guardian ad litem, administrator ad litem, guardian of the property, or, if none, the natural guardian, personal representative, trustee, or other fiduciary, or a sole holder or all co-holders of a power of revocation or a power of appointment, may in writing
(a)(1) waive the following:
(1)(A) formal notice;
(2)(B) informal notice;
(3)(C) service including service of notice of administration;
(4)(D) disclosure of the amount of compensation either paid to or to be paid to the personal representatives, attorneys, ac *1284 countants, appraisers, or other agents employed by the personal representative;
(5)(E) disclosure of prior or proposed distribution of assets; and
(F) any right or notice or the filing of any document, exhibit, or schedule required to be filed; and
(6)(G) any other proceedings or matters permitted to be waived by law or by these rules; and
(b)(2) give waive or consent in writing on behalf of himself and the persons he represents to the extent there is no conflict between him and the persons he represents of interest.
Committee Notes
When the same person serves in two fidiciary capacities he may not waive or consent to his acts without the approval of those whom he represents. This rule represents a rule implementation of the procedure found in F.S. 731.302. The language added as new (l)(f) is identical with the statute.
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.
1988 Revision: Procedure from F.S. 731.-302 inserted as new (l)(f), and a new requirement that the waiver be in writing has been added. Editorial changes. Committee notes expanded. Citation form changes in committee notes.
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
FPR 5.120 Administrator ad litem and guardian ad litem.
FPR 5.400 Distribution and discharge; notice.
FPR 5.680 Termination of guardianship upon removal of ward’s incapacity, death or exhaustion of assets.
FPR 5.690 Annual accountings
Committee Vote: Unanimous
RULE 5.190. DEFINITIONS
(а) When used in these rules, unless otherwise required by the context, or unless a contrary intent is expressly declared in the provision to be construed, the following mean:
(1) “Authenticated” when referring to copies of documents or judicial proceedings required to be filed with the court shall mean a certified or a copy authenticated according to § 1738 or § 1741, Title 28, U.S.C.
(2) “Beneficiary” means heir-at-law in an intestate estate; devisee in a testate estate; and the owner of a beneficial interest in a trust. The term does not apply to an heir-at-law, devisee or owner of a beneficial interest in a trust after his interest in the estate or trust has been satisfied.
(3) “Certified Copy” means a copy of a document signed and verified as a true copy by the officer to whose custody the original is entrusted.
(4) “Claims” means liabilities of the decedent, whether arising in contract, in tort, or otherwise, and funeral expenses. The term does not include expenses of administration, estate, inheritance, succession or other death taxes.
(5) “Clerk” means the clerk or deputy clerk of the court.
(б) “Code” means the Florida Probate Code as amended from time to time.
(7) “Court” means the Circuit Court.
(8) “Curator” means person appointed by the Court to take charge of the estate of a decedent until letters are issued.
(9) “Devise” when used as a noun, means a testamentary disposition of real or personal property and when used as a verb means to dispose of real or personal property by will. The term includes “gift,” *1285 “give,” “bequeath,” “bequest,” and “legacy.”
(10) “Devisee” means a person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee of a trust described by will, the trust or trustee is the devisee. The beneficiaries of the trust are not devisees.
(11) “Distributee” means a person who has received estate property from a personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increments to them remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee. For purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(12) “Domicile” shall be a person’s usual place of dwelling and shall be synonymous with “residence.”
(13) “Estate” means property of a decedent that is the subject of administration.
(14) “File” means to file with the court or the clerk.
(15) “Foreign Personal Representative” means a personal representative of another state or foreign country.
(16) “Formal notice” means notice under Fla.R.P. & G.P. 5.040(a).
(17) “FPC” means the Florida Probate Code, as amended from time to time.
(18) “Heirs” or “Heirs-at-law” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
(19) “Incompetent” means a minor or a person adjudicated incompetent.
(20) “Informal notice” means notice under Fla.R.P. & G.P. 5.040(b).
(21) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate, or the rights of a beneficiary in the estate, the personal representative shall be deemed to be an interested person. The term does not include an heir-at-law or devisee who has received his distribution. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceeding.
(22) “Judge” means the judge of the circuit court, including any judge elected, appointed, substituted or assigned to serve as judge of the court.
(23) “Letters” means authority granted by the court to the personal representative to act on behalf of the estate of the decedent and as used in the rules refers to what has been known as letters testamentary and letters of administration. All letters shall be designated “Letters of Administration.”
(24) “Other State” means any state of the United States other than Florida and includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
(25) “Personal Representative” means the fiduciary appointed by the court to administer the estate, and includes what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor to whom letters of administration have been issued.
(26) “Petition” means a written request to the court for an order.
(27) “Property” means both real and personal property or any interest in it and anything that may be the subject of ownership.
(28) “Residence” shall be a person’s usual place of dwelling and shall be synonymous with “domicile.”
(29) “Trustee” includes an original, additional, surviving, or successor trustee, whether or not appointed or confirmed by court.
*1286 (30) “Will” includes a codicil and is an instrument executed by a person in the manner prescribed by the Code and disposing of his property on or after his death including merely appointing a personal representative or revoking or revising another will.
Proposed Rule
RULE 5.190. DEFINITIONS
DELETE ENTIRE RULE.
Committee Notes
1975 Revision: These definitions are intended to simplify application of these rules. See also definitions in F.S. 731.201.
1977 Revision: Editorial change in rule.
1988 Revision: The definitions of “authenticated,” “beneficiary,” “claims,” “clerk,” “code,” “court,” “curator,” “devise,” “devisee,” “distributee,” “domicile,” “estate,” “file,” “foreign personal representative,” “heirs,” “heirs-at-law,” “incompetent,” “interested person,” “letters,” “other state,” “personal representative,” “petition,” “property,” “residence,” “trustee,” and “will” contained in this rule and F.S. 731.201 are verbatim except that the definition of “authenticated” in F.S. 731.-201 contains an erroneous reference to § 1733, Title 28, U.S.C., which reference should be to § 1738, Title 28, U.S.C. The duplicated definitions are eliminated and most of the remaining definitions are transferred to FPR 5.015. Citation form change in committee notes.
Committee vote: Unanimous
RULE 5.200. PETITION FOR ADMINISTRATION
(a) A verified petition for administration may be filed by any interested person.
(b) The petition for administration shall contain:
(1) A statement of the interest of the petitioner, his name and address, and the name and office address of his attorney.
(2) The name, last known address, date and place of death of the decedent, and the state and county of the decedent’s domicile.
(3) So far as is known, the names and addresses of the beneficiaries and their relationship to the decedent and the date of birth of any who are minors.
(4) A statement showing venue.
(5) The priority under the code of the person whose appointment as the personal representative is sought and a statement that he is qualified- to serve under the laws of Florida.
(6) If the decedent was a non-resident of this state, the petition shall state whether domiciliary or principal proceedings are pending in another state or country, if known, and the name and address of the foreign personal representative and the court issuing letters.
(7) A statement of the approximate value and nature of the assets so the clerk can ascertain the amount of the filing fee and the court can determine the amount of any bond.
(8) In an intestate estate, the petition shall state that after the exercise of reasonable diligence the petitioner is unaware of any unrevoked wills or codicils, or if the petitioner is aware of any unrevoked wills or codicils the petition shall state why the wills or codicils are not being probated, or otherwise give the facts concerning any such will or codicil.
(9) In a testate estate, the petition shall identify all unrevoked wills and codicils being presented for probate, and shall state that the petitioner is unaware of any other unreyoked will or codicil or, if the petitioner is aware of any other unrevoked wills or codicils, the petitioner shall state why the other wills or codicils are not being probated.
(10) In a testate estate the petition shall state that the original of the decedent’s last will is in the possession of the court or accompanies the petition, or that an authenticated copy of a will probated in another jurisdiction accompanies the petition.
Proposed Rule
RULE 5.200. PETITION FOR ADMINISTRATION
(a) A verified petition for administration may be filed by any interested person.
*1287 (b) The petition for administration shall be verified by the petitioner and shall contain:
(1) A statement of the interest of the petitioner, his name and address, and the name and office address of his attorney.
(2) The name, last known address, date and place of death of the decedent, and the state and county of the decedent’s domicile.
(3) So far as is known, the names and addresses of the beneficiaries and their relationship to the decedent and the date of birth of any who are minors.
(4) A statement showing venue.
(5) The priority under the code of the person whose appointment as the personal representative is sought and a statement that he is qualified to serve under the laws of Florida.
(6) If the decedent was a non-resident of this state, the petition shall state whether domiciliary or principal proceedings are pending in another state or country, if known, and the name and address of the foreign personal representative and the court issuing letters.
(7) A statement of the approximate value and nature of the assets so the clerk can ascertain the amount of the filing fee and the court can determine the amount of any bond.
(8) In an intestate estate, the petition shall state that after the exercise of reasonable diligence the petitioner is unaware of any unrevoked wills or codicils, or if the petitioner is aware of any unrevoked wills or codicils the petition shall state why the wills or codicils are not being probated, or otherwise give the facts concerning any such will or codicil.
(9) In a testate estate, the petition shall identify all unrevoked wills and codicils being presented for probate, and shall state that the petitioner is unaware of any other unrevoked will or codicil or, if the petitioner is aware of any other unrevoked wills or codicils, the petitioner shall state why the other wills or codicils are not being probated.
(10) In a testate estate the petition shall state that the original of the decedent’s last will is in the possession of the court or accompanies the petition, or that an authenticated copy of a will probated in another jurisdiction accompanies the petition.
Committee Notes
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 F.S. 733.202, and implementing F.S. 733.301 through 733.305.
1988 Revision: Editorial changes. Committee notes revised.
Statutory Reference
F.S. 733.202 Petition.
Rule References
FPR 5.020 Pleadings; verification; motions.
FPR 5.201 Notice of petition for administration.
Committee Vote: For: 18
Against: 2
Proposed Rule
RULE 5.201 NOTICE OF PETITION FOR ADMINISTRATION
Except as may otherwise be required by these rules or the Florida Probate Code, no notice need be given of the petition for administration or the issuance of letters when it appears that the petitioner is entitled to preference of appointment. Before letters shall be issued to any person who is not entitled to preference, formal notice shall be served on all known persons qualified to act as personal representative and entitled to preference equal to or greater than the applicant, unless those entitled to preference waive it in writing.
Committee Notes
This rule represents a rule implementation of the procedure found in F.S. 733.-203(2). It is not intended to change the effect of the statute from which it was derived but has been reformatted to conform with the structure of these rules. It *1288 is not intended to create a new procedure or modify an existing procedure.
Rule History
1988 Revision: New rule.
Statutory Reference
F.S. 733.203(2) Notice; when required.
Rule Reference
FPR 5.200 Petition for administration.
Committee Vote: Unanimous
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; and
(7) determination of homestead: at any time prior to entry of the final judgment determining homestead status of real property.
(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.
Proposed Rule
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; and
(7) determination of homestead: at any time prior to entry of the final judgment determining homestead status of real property»; and
(8) probate of will without administration: at any time prior to entry of the order admitting will to probate.
(b) [NO CHANGE RECOMMENDED]
(c) [NO CHANGE RECOMMENDED]
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 *1289 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.
Statutory Reference
F.S. 731.103 Evidence as to death or status.
Rule References
FPR 5.042(a) Time.
FPR 5.171 Evidence of death.
Committee Vote: Unanimous
RULE 5.210. 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.
Proposed Rule
RULE 5.210. PROBATE OF WILLS
(a) Manner. On petition wills the will of a decedent 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, if the will was valid under the laws of the state or country where the testator was at the time of execution; 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 if the original could have been admitted to probate in Florida; 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) 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 decedent's domicile.
(b) (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.
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 de *1290 stroyed 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 FPR 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 paragraph (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.
Statutory References
F.S. 731.201 General definitions.
F.S. 732.502 Execution of wills.
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.
F.S. 734.104 Foreign wills; admission to record; effect on title.
Rule Reference
FPR 5.015 General definitions.
Committee Vote: Unanimous
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.
(d) 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.
Proposed Rule
RULE 5.230. COMMISSION TO PROVE WILL
(a) Petition. The On petition the court may appoint a commissioner on petition to take the oath of any attesting witness to a will person qualified to prove the will under Florida law. 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 the proposed commissioner.
(b) Commission. The commission shall be directed to any person who is authorized to administer an oath by the laws of Flor *1291 ida, 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 oath of the witness to prove the will and shall direct him the commissioner to certify the proof oath and return file the executed commission, copy of the will, oath of the witness, and certificate of proof commissioner. An oath of the commissioner is not required.
(c) Mailing or delivery. The petitioner or his attorney shall cause the commission, together with a photographic copy of the will, the oath, and the certificate of proof commissioner, to be mailed or delivered to the commissioner.
(d) Admission to probate Filing. On the filing of the The executed commission, te-gether with the copy of the will, the oath of the witness, and certificate of proof, the will may be admitted to probate commissioner shall be filed.
(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 Florida Rules of Civil Procedure.
Committee Notes
Rule History
1975 Revision: Substantially the same as prior FPR 5.130(a) and (b) and carries forward prior procedures as to a matter upon which Florida Probate Code 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.
1988 Revision: Editorial and substantive changes. Change in (a) to provide that commissioner may take the oath of not only the attesting witness to the will but also the oath of any other person qualified to prove the will; change in (c) to require that a copy of the executed will be delivered to commissioner, and to permit delivery of documents in a manner other than by mailing; change in (d) to require the filing of documents with the court. Committee notes revised. Citation form changes in rule and committee notes.
Statutory References
F.S. 733.109 Revocation of probate.
F.S. 733.201 Proof of wills.
F.S. 733.504 Causes of removal of personal representative.
F.S. 733.506 Proceedings for removal.
F.S. 92.50 Oaths, affidavits, and ac-knowledgements; who may take or administer; requirements.
22 U.S.C. § 1195 Notarial acts, oaths, affirmations, affidavits, and depositions; fees.
Committee Vote: Unanimous
Proposed Rule
RULE 5.235 ISSUANCE OF LETTERS, BOND
(a) Appointment of personal representative. After the petition for administration is filed and the will, if any, is admitted to probate:
(1) The court shall appoint the person entitled and qualified to be personal representative.
(2) The court shall determine the amount of any bond required. The clerk may approve the bond in the amount determined by the court and shall not charge a service fee.
*1292 (3) Any required oath or designation of, and acceptance by, a resident agent shall be filed.
(b) Issuance of letters. Upon compliance with all of the foregoing, letters shall be issued to the personal representative.
(c) Bond. On petition by any interested person or on the court's own motion, the court may waive the requirement of filing a bond, require a personal representative or curator to give bond, increase or decrease the bond, or require additional sure- &
Committee Notes
This rule represents a rule implementation of the procedure found in F.S. 733.401 and 733.403(2). It is not intended to change the effect of the statutes from which it was derived but has been reformatted to conform with the structure of these rules. It is not intended to create a new procedure or modify an existing procedure.
Rule History
1988 Revision: New rule.
Statutory References
F.S. 733.401 Issuance of letters.
F.S. 733.402 Bond of personal representative; when required; form.
Committee Vote: Unanimous
RULE 5.240. NOTICE OF ADMINISTRATION
(a) Publication and service. 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 who have not been barred by 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 on whom notice was served that challenges the validity of the will, the qualifications of the personal representative, and the venue of jurisdiction of the court.
(c) Method of publication and proof. Publication shall be 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.
Proposed Rule
RULE 5.240. NOTICE OF ADMINISTRATION
(a) Publication and service. 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 who have not been barred by law. Within 2 months after first publication of notice of administration the personal representative shall serve a copy of the notice on all persons having claims or demands against the estate whose name and location or address are known to or reasonably ascertainable by the personal representative. No such notice need be served on a creditor who has filed a claim in the proceedings or whose claim has been included in a personal representative’s proof of claim filed in the proceedings, or on a creditor whose claim has been paid.
(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 *1293 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 on whom notice was served that challenges the validity of the will, the qualifications of the personal representative, and the venue of jurisdiction of the court.
(c) Method of publication and proof. Publication shall be 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.
(e) Statement regarding creditors. Within four months after the date of the first publication of notice of administration, the personal representative shall file a verified statement that he has made diligent search to ascertain the names and location or mailing addresses of persons having claims or demands against this estate. Such statement shall also contain the following information as to all such persons who have not filed a timely claim or who have not had their claim included in a personal representative’s proof of claim filed in the proceedings:
(1) the name and, if known, the address of such person;
(2) an indication whether such person has been served with a notice of administration or otherwise received actual notice of the proceedings.
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.
On April 19, 1988, the United States Supreme Court decided In the Matter of the Estate of Pope, reported at — U.S. —, 108 S.Ct. 1340 , 99 L.Ed.2d 565 . This case will have substantial impact on the method for handling (and barring) creditor’s claims. This case stands for the proposition that a creditor may not be barred by the usual publication if that creditor was actually known to or reasonably ascertainable by the personal representative, and the PR failed to give notice to the creditor by mail or other means as certain to ensure actual notice. Less than actual notice in these circumstances would deprive the creditor of his Due Process rights under the 14th Amendment to the U.S. Constitution. Probably actual notice of the death (as in the case of a hospital where the decedent died as a patient) without notice of the institution of probate proceedings is not sufficient.
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested persons of the pendency of the proceeding and afford them an opportunity to present their claims.
The statement required by this rule is not intended to be jurisdictional but rather to provide evidence of satisfaction (or lack thereof) of the Due Process requirements.
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.
1988 Revision: The obligation to mail notice of administration to all known or reasonably ascertainable creditors has been added to comply with the dictates of In the Matter of the Estate of Pope, — U.S. —, 108 S.Ct. 1340 , 99 L.Ed.2d 565 (1988).
This rule does not require sending notice of administration to creditors in estates *1294 where the time for filing claims has expired before the effective date of this rule. However, no opinion is offered whether such claims are barred by the provisions of Florida Statute § 733.702.
Committee notes revised. Citation form changes in committee notes.
Statutory References
F.S. 731.111 Notice to creditors.
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.
F.S. 733.703 Form and manner of presenting claim.
F.S. 733.704 Amendment of claims.
F.S. 733.708 Compromise.
Rule References
FPR 5.025 Adversary proceedings.
FPR 5.180 Waiver and consent.
FPR 5.245 Statement of creditors.
FPR 5.270 Revocation of probate.
FPR 5.440 Proceedings for removal.
FPR 5.490 Form and manner of presenting claim.
FPR 5.495 Petition to extend the time for filing a claim.
FPR 5.520 Family administration.
RULE 5.260. CAVEAT; PROCEEDINGS
(a) Filing. Any creditor or interested person other than a creditor may file a caveat with the court.
(b) Contents. The caveat shall contain a statement of the interst of the caveator in the estate, the name and specific mailing address, and residence address of the cave-ator.
(c) Resident agent of caveator; service. If the caveator is not a resident of Florida, 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, the clerk shall forthwith notify the caveator in writing of the date of issuance of letters and the names and addresses of the personal representative and his attorney.
(e) Creditor. When letters of administration issue after the filing of a caveat by a creditor, 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 and his attorney, unless notice has previously been served on the caveator. A copy of any notice given by the clerk, together with a certificate of the mailing of the original notice, shall be filed in the estate proceedings.
(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.
Proposed Rule
RULE 5.260. CAVEAT; PROCEEDINGS
[NO CHANGE RECOMMENDED]
*1295 Committee Notes
Caveat proceedings permit a decedent’s creditor or other interested person to be notified when letter 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 FPR 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.
1988 Revision: Committee notes revised. Citation form changes in committee notes.
Statutory References
F.S. 731.110 Caveat; proceedings.
F.S. 733.203(1) Notice; when required.
Rule Reference
FPR 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 on which revocation is demanded.
(b) Continued administration. Pending the determination of any issue for revocation of probate, the personal representative shall continue to administer the estate of the decedent.
Proposed Rule
RULE 5.270. REVOCATION OF PROBATE
(a) [NO CHANGE RECOMMENDED]
(b) Continued administration. Pending the determination of any petition for revocation of probate, the personal representative shall continue-to administer the-estate of the decedent proceed with the administration of the estate as if no revocation proceeding had been commenced, except that no distribution may be made to devi-sees in contravention of the rights of those who, but for the will, would be entitled to the property disposed of.
Committee Notes
This rule represents a rule implementation of the procedure found in F.S. 733.-109(2). It is not intended to change the effect of the statute from which it was derived but has been reformatted to conform with the structure of these rules. It is not intended to create a new procedure or modify an existing procedure. The committee believes that sections (1) and (3) of the statute are substantive, and have therefore not been included. Further, this rule revises paragraph (b) of the prior similar rule to track the language in the statute from which it was derived.
Rule History
1984 Revision: Extensive changes. Committee notes revised.
1988 Revision: Language of paragraph (b) of the rule rewritten to track the statute more closely. Committee notes expanded. Citation form change in committee notes.
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
FPR 5.025 Adversary proceedings.
Committee Vote: For: 10
Against: 9
Proposed Rule
RULE 5,275 BURDEN OF PROOF IN WILL CONTESTS
In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on *1296 which the probate of the will is opposed or revocation sought.
Committee Notes
This rule represents a rule implementation of the procedure found in F.S. 733.107. The language of this rule is identical with the statute.
Rule History
1988 Revision: New rule.
Statutory Reference
F.S. 733.107
Committee Vote: Unanimous
RULE 5.280. PROBATE OF WILL WRITTEN IN FOREIGN LANGUAGE
(Deleted September 13, 1984; Effective January 1, 1985)
Committee Notes
Rule History
198k Revision: The rule has been deleted because it is now covered by FPR 5.210. See FPR 5.210 and F.S. 733.204.
RULE 5.290. PROBATE OF NOTARIAL WILL
(Deleted September 13, 1984; Effective January 1, 1985.)
Committee Notes
Rule History
198k Revision: The rule has been deleted because it is now covered by FPR 5.210. See FPR 5.210 and F.S. 733.205.
RULE 5.310. DISQUALIFICATION OF PERSONAL REPRESENTATIVE; NOTIFICATION
Any personal representative who was improperly qualified or who becomes disqualified to act after his appointment shall immediately present a petition to the court for appropriate action and shall do any and all other things necessary or proper to procure an order approving his resignation.
Proposed Rule
RULE 5.310. DISQUALIFICATION OF PERSONAL REPRESENTATIVE; NOTIFICATION
[NO CHANGE RECOMMENDED]
Committee Notes
1975 Revision: This is same as old FPR 5.220 and old F.S. 732.47(3). The rule sets forth the imperative need for timely action and the inherent responsibility of a fiduciary to effect orderly succession. It further implies the inherent jurisdiction of the court to control by judicial overview the succession.
1977 Revision: Citation form change in committee note.
1988 Revision: Committee notes revised. Citation form changes in committee notes.
Statutory References:
F.S. 733.302 Who may be appointed personal representative.
F.S. 733.303 Persons not qualified.
F.S. 733.502 Resignation of person

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7568900. Public record. Not legal advice.