Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

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

Supreme Court of Florida

December 19, 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, and Cristina Papanikos, Past Co-Chair, Florida Probate Rules Committee, Miami, Florida; and Joshua E. Doyle, Executive Director, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner

         REVISED OPINION

          PER CURIAM.

          The opinion dated November 14, 2019, is withdrawn, and the following revised opinion is substituted in its place.[1]

Page 493

          We have for consideration the regular-cycle report of proposed amendments to the Florida Probate Rules (Probate 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 ten days to fifteen 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 also revised subdivision

Page 494

(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 underlining, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.