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In re Amendments To Florida Probate Rules - 2019 Regular-Cycle Report

Supreme Court of Florida

November 14, 2019

IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES - 2019 REGULAR-CYCLE REPORT.

          Original Proceeding - The Florida Probate Rules Committee

          Jeffrey Scott Goethe, Chair, Florida Probate Rules Committee, Bradenton, Florida, and Theodore Stanley Kypreos, Past Co-Chair, Florida Probate Rules Committee, West Palm Beach, Florida, Cristina Papanikos, Past Co-Chair, Florida Probate Rules Committee, Miami, Florida; and Joshua E. Doyle, Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner

          PER CURIAM.

         We have for consideration the regular-cycle report of proposed amendments to the Florida Probate Rules (Rules), filed by the Florida Probate Rules Committee (Committee). See Fla. R. Jud. Admin. 2.140(b). We have jurisdiction. See art. V, § 2(a), Fla. Const.

         BACKGROUND

         The Committee proposes amendments to rules 5.020 (Pleadings; Verification; Motions), 5.040 (Notice), 5.200 (Petition for Administration), 5.240 (Notice of Administration), 5.241 (Notice to Creditors), 5.275 (Burden of Proof in Will Contests), 5.320 (Oath of Personal Representative), 5.360 (Elective Share), 5.407 (Proceedings to Determine Family Allowance), 5.470 (Ancillary Administration), 5.490 (Form and Manner of Presenting Claim), 5.499 (Form and Manner of Objecting to Personal Representative's Proof of Claim), 5.636 (Settlement of Minors' Claims), 5.649 (Guardian Advocate), 5.681 (Restoration of Rights of Person with Developmental Disability), 5.695 (Annual Guardianship Report), and 5.900 (Expedited Judicial Intervention Concerning Medical Treatment Procedures). The Board of Governors of The Florida Bar unanimously approved the proposals.

         The Committee published the proposals in The Florida Bar News before filing them with the Court. No comments were received by the Committee. Following publication, for efficiency, the Committee decided to include amendments to two additional rules, which were published in a later edition of The Florida Bar News. After the Committee's report was filed, the Court published the amendments for comment. The Court received no comments.

         We have fully considered the Committee's proposed amendments. As discussed in this opinion, we adopt the amendments as proposed, with three exceptions: (1) we have revised the Committee's proposal to amend rule 5.040 (Notice); (2) we have revised the Committee's proposal to amend rule 5.636 (Settlement of Minors' Claims); and (3) we have not adopted the proposed amendment to rule 5.499 (Form and Manner of Objecting to Personal Representative's Proof of Claim) that would have removed the timeframe within which an objection is to be served on a claimant. The Committee explained that it was removing the service deadline because that deadline is not contained within section 733.705, Florida Statutes. That statute sets forth the deadline for filing an objection to a claim and then provides that "the person filing it shall serve a copy of the objection as provided by the Florida Probate Rules." § 733.705(2), Fla. Stat. (2019). We see no reason why an appropriate timeframe for service should not be set forth in the governing procedural rule. Providing an appropriate time for service of legal documents is consistent with notions of procedural due process and the efficient administration of justice.

         We discuss the more significant amendments to the Probate Rules below.

         AMENDMENTS

         The amendment to rule 5.020 (Pleadings; Verification; Motions) changes the deadline for service of a motion for rehearing from 10 days to 15 days after the date of filing of the order or judgment.

         New subdivision (a)(3)(D) is added to rule 5.040 (Notice). This new subdivision provides for service by first-class mail when only in rem or quasi in rem relief is sought under certain circumstances. However, we have revised the Committee's proposal to include the phrase "where authorized by the Florida Trust Code" after the phrase "by first-class mail" because it appears that service by first-class mail when in rem or quasi in rem relief is sought is authorized by the Florida Trust Code but not the Florida Probate Code. Additionally, we revised subdivision (a)(4)(F) by deleting the phrase "at its registered office in Florida or its principal business office in Florida or, if neither is known after reasonable inquiry, at its last known address" and in its place, adding the phrase "as provided in chapter 48, Florida Statutes." Also, we revised subdivision (a)(5) to include completion of service under subdivisions (a)(3)(B) and (C).

         Rule 5.200 (Petition for Administration), is amended, as proposed, to require the person seeking appointment as the personal representative to indicate whether any other person has equal or higher preference under section 733.301, Florida Statutes, and if so, the person's name and whether the person will be served with formal notice. Additionally, the rule is amended to add a new subdivision (k) to require a statement that the personal representative is qualified to serve under the laws of Florida as a business entity under section 733.305, Florida Statutes, or as an individual under sections 733.303 and 733.304, Florida Statutes.

         Rule 5.275 (Burden of Proof in Will Contests) is amended to correspond to legislative changes in section 733.107, Florida Statutes. Specifically, we add a new subdivision (b), which states that where the presumption of undue influence applies, the presumption shifts the burden of proof under sections 90.301-90.304, Florida Statutes.

         Finally, rule 5.636 (Settlement of Minors' Claims) is amended as the Committee proposes by adding the phrase "equals or" before the phrase "exceeds $50, 000" in subdivisions (d) and (e). Additionally, we have added the phrase "equal or" before the phrase "exceed $50, 000" in subdivision (e).

         CONCLUSION

         Accordingly, we amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2020, at 12:01 a.m.

         It is so ordered.

          CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur

         THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

         APPENDIX

         RULE 5.020. PLEADINGS; VERIFICATION; MOTIONS

         (a) - (c) [No Change]

         (d) Rehearing. A motion for rehearing of any order or judgment shall be served not later than 1015 days after the date of filing the order or judgment with the clerk as shown on the face of the order or judgment.

         (e) [No Change]

         Committee Notes

         The time for determining when a motion for rehearing must be served has been clarified in view of Casto v. CastoCasto v. Casto, 404 So.2d 1046 (Fla. 1981).

         Rule History

         1977 Revision - 2010 Revision [No Change]

         2019 Revision: Subdivision (d) amended to change the deadline for service of a motion for rehearing from 10 to 15 days after the specified event to conform to 2013 amendments to the Florida Rule of Civil Procedure 1.530. Committee notes revised.

         Statutory References

         [No Change]

         Rule References

         Fla. Prob. R. 5.025 Adversary proceedings.

         Fla. Prob. R. 5.200 Petition for administration.

         Fla. Prob. R. 5.205(b) Filing evidence of death.

         Fla. Prob. R. 5.320 Oath of personal representative.

         Fla. Prob. R. 5.330 Execution by personal representative.

         Fla. Prob. R. 5.350 Continuance of unincorporated business or venture.

         Fla. Prob. R. 5.370(a) Sales of real property where no power conferred.

         Fla. Prob. R. 5.405(b) Proceedings to determine homestead real property.

         Fla. Prob. R. 5.530 Summary administration.

         Fla. Prob. R. 5.550 Petition to determine incapacity. Fla. Prob. R. 5.560 Petition for appointment of guardian of an incapacitated person.

         Fla. Prob. R. 5.600 Oath.

         Fla. Prob. R. 5.649 Guardian advocate.

         Fla. R. Civ. P. 1.530 Motions for new trial and rehearing; amendments of judgment.

         RULE 5.040. NOTICE (a) Formal Notice.

         (1) Procedure for Formal Notice.

         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) Effect of Service of Formal Notice.

         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) Manner of Service of Formal Notice.

         Formal notice shall be served in the following manner:

(A) by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt as follows:;
(i) to the attorney representing an interested person; or
(ii) to an interested person who has filed a request for notice at the address given in the request for notice; or
(iii) to an incapacitated person or a person with a developmental disability to the person's usual place of abode and to the person's legal guardian, if any, at the guardian's usual place of abode or regular place of business; or, if there is no legal guardian, to the incapacitated person or person with a developmental disability at the person's usual place of abode and on the person, if any, having care or custody of the incapacitated person or person with a developmental disability at the usual place of abode or regular place of business of such custodian; or
(iv) to a minor whose disabilities of nonage are not removed, by serving the persons designated to accept service of process on a minor under chapter 48, Florida Statutes; or
(v) on any other individual to the individual's usual place of abode or to the place where the individual regularly conducts business; or
(vi) on a corporation or other business entity 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 in the Florida Rules of Civil Procedure for service of process; or (C) as otherwise provided by Florida law for service of process.; or
(4) Service of formal notice pursuant to subdivision (a)(3)(A) shall be complete on receipt of the notice. Proof of service shall be by verified statement of the person giving the notice; 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 the addressee's agent.
(5) If service of process is made pursuant to Florida law, proof of service shall be made as provided therein.

         (D) by first-class mail where authorized by the Florida Trust Code when only in rem or quasi in rem relief is sought against a person if:

(i) registered or certified mail service to the addressee requiring a signed receipt is unavailable and if delivery by commercial delivery service requiring a signed receipt is also unavailable;
(ii) delivery pursuant to subdivision (a)(3)(A) is attempted and is refused by the addressee; or
(iii) delivery pursuant to subdivision (a)(3)(A) is attempted and is unclaimed after notice to the addressee by the delivering entity.

         (4) Persons to be Served. Service of formal notice under (a)(3)(A) and (a)(3)(D) shall be made on the following:

         (A) service on an interested person represented by an attorney shall be made by delivery to the attorney at his or her regular place of business;

         (B) service on an interested person who has filed a request for notice shall be made by delivery to such interested person at the address given in the request for notice;

         (C) service on an incapacitated person or a person with a developmental disability shall be made by delivery:

(i) to such person at his or her usual place of abode; and
(ii) to such person's legal guardian at the legal guardian's usual place of abode or regular place of business or, if such person does not have a legal guardian, to the person having care or custody of such person at his or her usual place of abode or regular place of business;

         (D) service on a minor whose disabilities of nonage are not removed shall be made by delivery to the persons designated to accept service of process on a minor under chapter 48, Florida Statutes, at their usual place of abode or regular place of business;

         (E) service on any other individual shall be made by delivery to such individual at his or her usual place of abode or to any person authorized to receive service of a summons on behalf of the individual as provided in chapter 48, Florida Statutes; or

         (F) service on a corporation or other business entity shall be made by delivery to such corporation or other business entity as provided in chapter 48, Florida Statutes.

         (5) Completion of Service. Service of formal notice pursuant to subdivision (a)(3)(A) shall be complete upon receipt by the person to whom delivery is made. Service of formal notice pursuant to subdivision (a)(3)(B) shall be complete as provided in the Florida Rules of Civil Procedure for service of process. Service of formal notice pursuant to subdivision (a)(3)(C) shall be complete as provided by Florida law for service of process. Service of formal notice pursuant to subdivision (a)(3)(D) shall be complete upon mailing.

         (6) Proof of Service. Proof of service shall be by verified statement of the person serving formal notice and there shall be attached to the verified statement the receipt signed by the person to whom delivery was made or other evidence satisfactory to the court that delivery was made. Alternatively, if service is obtained pursuant to subdivision (a)(3)(D), the verified statement must state the basis for service by first-class mail, the date of mailing, and the address to which the first-class mail was sent. Proof of service pursuant to subdivisions (a)(3)(B) or (a)(3)(C) shall be made as provided by Florida law for service of process.

         (b) - (d) [No Change]

         (e) In the Manner Provided for Service of Formal Notice. If a document is served in the manner provided for service of formal notice, service is completed on receipt of the document, and proof of service shall be in the manner set forth in subdivision (a)(46).

         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. "The manner provided for service of formal notice" is as provided in rule 5.040(a)(3).

         Informal notice is the method of service of notice given to interested persons entitled to notice when formal notice is not given or required.

         Reference in this rule to the terms "mail" or "mailing" refers to use of the United States Postal Service.

         Rule History

         1975 Revision - 2006 Revision [No Change]

         2007Revision: New subdivision (a)(3)(A)(iv) inserted in response to Cason ex rel. Saferight v. Hammock, 908 So.2d 512 (Fla. 5th DCA 2005), and subsequent subdivisions renumbered accordingly. Committee notes revised.

         2008Revision - 2016 Revision [No Change]

         2019 Revision: Subdivision (a) reformatted for easier reading and corrected syntax. Subdivision (a)(3)(D) amended to provide for service by first-class mail when only in rem or quasi in rem relief is sought under certain circumstances. Committee notes revised.

         Statutory References

         [No Change]

         Rule References

         [No Change]

         RULE 5.200. PETITION FOR ADMINISTRATION The petition for administration shall be verified by the petitioner and shall contain:

         (a) - (d) [No Change]

         (e) the priority, under the Florida Probate Codesection 733.301, Florida Statutes, of the person whose appointment as the personal representative is sought, whether or not any other person has equal or higher preference, and if so, their name and whether they will be served with formal notice, and a statement that the person is qualified to serve under the laws of Florida;

         (f)- (h) [No Change]

         (i) in a testate estate, a statement identifying all unrevoked wills and codicils being presented for probate, and a statement that the petitioner is unaware of any other unrevoked wills or codicils or, if the petitioner is aware of any other unrevoked wills or codicils, a statement why the other wills or codicils are not being probated; and

         (j) in a testate estate, a statement that the original of the decedent's last will is in the possession of the court or accompanies the petition, or that an authenticated copy of a will deposited with or probated in another jurisdiction or that an authenticated copy of a notarial will, the original of which is in the possession of a foreign notary, accompanies the petition.; and

         (k) a statement that the personal representative seeking appointment is qualified to serve under the laws of Florida as a business entity under section 733.305, Florida Statutes, or, if an individual, that the person is qualified to serve under the laws of Florida, including:

(1) whether the person has been convicted of a felony;
(2) that the person is mentally and physically able to perform the duties of a personal representative;
(3) that the person is 18 years of age or older; and
(4) whether the person is a resident of Florida and, if not a resident, a statement of the person's relationship to the decedent in accordance with section 733.304, Florida Statutes.

         Committee Notes

         Rule History

         1977 Revision - 2014 Revision [No Change]

         2019 Revision: Subdivision (e) amended to require a statement identifying any other person who has equal or higher preference than the petitioner for the appointment of a personal representative under section 733.301, Florida Statutes. Subdivision (k) adopted to require a statement of the specific facts that show the petitioner's qualifications to serve as personal representative under sections 733.303 and 733.304, Florida Statutes.

         Statutory References

         [No Change]

         Rule References

         [No Change]

         RULE 5.240. NOTICE OF ADMINISTRATION

         (a) [No Change]

         (b) Contents. The notice shall state:

         (1) the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils;

         (2) the name and address of the personal representative and the name and address of the personal representative's attorney, and that the fiduciary lawyer-client privilege in section 90.5021, Florida Statutes, applies with respect to the ...


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