In re Amendments to the Fla. Probate Rules—2019 Regular-Cycle Report
| Decision Date | 19 December 2019 |
| Docket Number | No. SC19-164,SC19-164 |
| Citation | 287 So.3d 492 (Mem) |
| Parties | IN RE: AMENDMENTS TO the FLORIDA PROBATE RULES—2019 REGULAR-CYCLE REPORT. |
| Court | Florida Supreme Court |
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
The opinion dated November 14, 2019, is withdrawn, and the following revised opinion is substituted in its place.1
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.
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 () 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.
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 (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).
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 the rules. The amendments shall become effective January 1, 2020, at 12:01 a.m.
It is so ordered.
APPENDIX
RULE 5.020. PLEADINGS; VERIFICATION; MOTIONS
(d) Rehearing. A motion for rehearing of any order or judgment shall be served not later than1015 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 ofCasto v. CastoCasto v. Casto, 404 So.2d 1046 (Fla. 1981).
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
(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 receiptas 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...
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