In re Amendments to the Florida Probate Rules, SC07-153.
| Citation | 959 So.2d 1170 |
| Decision Date | 05 July 2007 |
| Docket Number | No. SC07-153.,SC07-153. |
| Parties | In re AMENDMENTS TO THE FLORIDA PROBATE RULES. |
| Court | United States State Supreme Court of Florida |
Peter A. Sachs, Chair, Florida Probate Rules Committee, West Palm Beach, FL, John F. Harkness, Jr., Executive Director and J. Craig Shaw, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
Sean O. Cadigan, Tampa, FL, and Keela Roberts Samis, St. Petersburg, FL, Responding with comments.
This matter is before the Court for consideration of proposed amendments to the Florida Probate Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(b).
On January 29, 2007, the Florida Probate Rules Committee (Committee) filed a regular-cycle report recommending amendments to several of the Florida Probate Rules, as well as the adoption of two new rules. The Committee proposes amendments to existing rules 5.040 (Notice); 5.041 (Service of Pleadings and Papers); 5.200 (Petition for Administration); 5.210 (Probate of Wills Without Administration); 5.241 (Notice to Creditors); 5.490 (Form and Manner of Presenting Claims); 5.496 (Form and Manner of Objecting to Claim); 5.498 (Personal Representative's Proof of Claim); 5.499 (Form and Manner of Objecting to Personal Representative's Proof of Claim); 5.530 (Summary Administration); 5.650 (Resignation or Disqualification of Guardian; Appointment of Successor); 5.670 (Termination of Guardianship on Change of Domicile of Resident Ward); 5.697 (Magistrate's Review of Guardianship Accountings and Plans); and 5.710 (Reports of Public Guardian). It further proposes the adoption of two new rules: rules 5.095 (General and Special Magistrates) and 5.645 (Management of Property of Nonresident Ward by Foreign Guardian).
After the Committee filed its report with the Court, the Court published the proposed amendments in The Florida Bar News. Sean O. Cadigan and Keela Roberts Samis, both members of The Florida Bar, filed a joint comment, the only one filed. Cadigan and Samis, both of whom have served as magistrates in probate cases, suggested the addition of a sentence to the end of subdivision (e) in rule 5.697 to read: "The magistrate shall be required to file a report only if a hearing is held pursuant to subdivision (d) of this rule or if specifically directed to do so by the court." They believed the additional sentence would make it clear that a magistrate would not need to prepare and file a magistrate's report or adhere to the exception period when the magistrate assists the court in the review of guardianship reports, but does not conduct a hearing to review the report.
In its response to the comment, the Committee agreed that the addition of the sentence proposed by Cadigan and Samis would avoid a possible misinterpretation of the rules and asked the Court to incorporate the sentence proposed by Cadigan and Samis into its proposal.
Having taken the proposed amendments, the comment, and the Committee's response into consideration, we hereby adopt the amendments to the Florida Probate Rules as set forth in the appendix to this opinion, including the additional sentence at the end of subdivision (e) in rule 5.697, suggested by Cadigan and Samis. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments will become effective on January 1, 2008, at 12:01 a.m.
APPENDIX
RULE 5.040. NOTICE
(1)-(2) [NO CHANGE]
(3) Formal notice shall be served:
(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 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 at the person's usual place of abode and on the person, if any, having care or custody of the incapacitated person 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
(iv)(v) on any other individual to the individual's usual place of abode or to the place where the individual regularly conducts business; or
(v)(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.
(4)-(5) [NO CHANGE]
Committee Notes
[NO CHANGE]
Rule History
1975 Revision: Implements section 731.301, Florida Statutes.
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.
1984 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 rules 5.041 and 5.042; eliminates waiver of notice by will.
1988 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.
1991 Revision: Subdivision (b) amended to define informal notice more clearly.
1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.
1996 Revision: Subdivision (a) amended to permit service of formal notice by commercial delivery service to conform to 1993 amendment to section 731.301(1), Florida Statutes. Editorial changes.
2001 Revision: Editorial changes in subdivision (a)(3)(A) to clarify requirements for service of formal notice.
2003 Revision: Committee notes revised.
2005 Revision: Subdivision (a)(3)(A) amended to delete requirement of court approval of commercial delivery service.
2006 Revision: Committee notes revised.
2007 Revision: 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.
Statutory References
§ 1.01(3), Fla. Stat. Definitions.
ch. 48, Fla. Stat. Process and service of process.
ch. 49, Fla. Stat. Constructive service of process.
§ 731.105, Fla. Stat. In rem proceeding.
§ 731.201(16), (20), Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 731.302, Fla. Stat. Waiver and consent by interested person.
§ 733.212, Fla. Stat. Notice of administration; filing of objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
§ 733.502, Fla. Stat. Resignation of personal representative.
§ 733.613, Fla. Stat. Personal representative's right to sell real property.
§ 733.6175, Fla. Stat. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.
§ 733.901, Fla. Stat. Final discharge.
ch. 743, Fla. Stat. Disability of nonage of minors removed.
§ 744.106, Fla. Stat. Notice.
§ 744.301, Fla. Stat. Natural guardians.
§ 744.3201, Fla. Stat. Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.
§ 744.441, Fla. Stat. Powers of guardian upon court approval.
§ 744.447, Fla. Stat. Petition for authorization to act.
§ 744.477, Fla. Stat. Proceedings for removal of a guardian.
Rule References
[NO CHANGE]
RULE 5.041. SERVICE OF PLEADINGS AND PAPERS
(a) [NO CHANGE]
(b) Service; How Made. When service is required or permitted to be made 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, or when serving a motion, pleading, or other paper in the manner provided for service of formal notice, service shall be made by delivering or mailing a copy of the motion, pleading, or other paper to the attorney or interested person at the last known address or, if no address is known, leaving it with the clerk of the court. If the interested person is a minor whose disabilities of nonage are not removed, and who is not represented by an attorney, then service shall be on the persons designated to accept service of process on a minor under chapter 48, Florida Statutes. Service by mail shall be complete upon mailing except when serving formal notice or when making service in the manner of formal notice. Delivery of a copy within this rule shall be complete upon
(1) handing it to the attorney or to the interested person; or
(2) leaving it at the attorney's or interested person's office with a 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 the person's usual place of abode with some person of his or her family above 15 years of age and informing that person of the...
To continue reading
Request your trial
-
In re Amendments to the Fl. Probate Rules
...1. The appendix does not reflect amendments to the Florida Probate Rules that were adopted by the Court in In re Amendments to the Florida Probate Rules, 959 So.2d 1170 (Fla.2007). Those amendments become effective on January 1, 2008, at 12:01 2. An original and nine paper copies of all com......
- In re Amendments to Florida Small Claims Rules, SC07-179.