IN RE: AMENDMENTS TO the FLORIDA PROBATE RULES— 2019 REGULAR-CYCLE REPORT.
Original Proceeding - The Florida Probate Rules Committee
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
opinion dated November 14, 2019, is withdrawn, and the
following revised opinion is substituted in its
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.
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 Representatives 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.
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 Committees
report was filed, the Court published the amendments for
comment. The Court received no comments.
fully considered the Committees proposed amendments. As
discussed in this opinion, we adopt the amendments as
proposed, with three exceptions: (1) we have revised the
Committees proposal to amend rule 5.040 (Notice); (2) we
have revised the Committees 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 Representatives 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.
discuss the more significant amendments to the Probate Rules
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.
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
(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).
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 persons 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.
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).
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 ...