In re Amendments to the Fla. Probate Rules—2019 Fast-Track Report
| Decision Date | 16 January 2020 |
| Docket Number | No. SC19-2071,SC19-2071 |
| Citation | 288 So.3d 565 (Mem) |
| Parties | IN RE: AMENDMENTS TO the FLORIDA PROBATE RULES—2019 FAST-TRACK REPORT. |
| Court | Florida Supreme Court |
Jeffrey Scott Goethe, Chair, Florida Probate Rules Committee, Bradenton, Florida, Joshua E. Doyle, Executive Director, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
The Florida Bar's Probate Rules Committee (Committee) has filed a "fast-track" out-of-cycle report proposing amendments to the Florida Probate Rules in response to recent legislation. See Fla. R. Jud. Admin. 2.140(e)(1). We have jurisdiction1 and adopt the amendments as proposed.
The Committee proposes amendments to the following rules: 5.015 (General Definitions); 5.043 (Deposit of Wills and Codicils); 5.120 (Administrator Ad Litem and Guardian Ad Litem); 5.200 (Petition for Administration); 5.210 (Probate of Wills Without Administration); 5.215 (Authenticated Copy of Will); and 5.230 (Commission to Prove Will).
The Executive Committee of the Board of Governors of The Florida Bar unanimously approved the Committee's proposals. The Committee did not publish the proposals before filing them with the Court. After considering the Committee's proposals and the relevant legislation, we amend the Florida Probate Rules as proposed by the Committee. The more significant amendments are discussed below.
First, pertaining to rule 5.015, subdivision (b)(1) is amended to add "whether in paper or electronic form," after "original" to make it clear that a "certified copy" can apply to electronic wills. See ch. 2019-71, § 37, Laws of Fla. (enacting § 732.526, Fla. Stat. (2019) ). As amended, subdivision (b)(1) provides: " ‘[C]ertified copy’ means a copy of a document signed and verified as a true copy by the officer to whose custody the original, whether in paper or electronic form, is entrusted."
Second, rule 5.043 is amended to add language requiring that electronic wills, in addition to paper wills, be maintained in their original format for twenty years after submission. See ch. 2019-71, § 37, Laws of Fla. (enacting § 732.526, Fla. Stat. (2019) ). Specifically, "including but not limited to an electronic will," is added after "executed will or codicil." As amended, the sentence reads: "Notwithstanding any rule to the contrary, and unless the court orders otherwise, any original executed will or codicil, including but not limited to an electronic will, deposited with the court ... must be retained ...."
Accordingly, the Florida Probate Rules are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall take effect immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have seventy-five days from the date of this opinion in which to file comments with the Court.2
It is so ordered.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
APPENDIX
RULE 5.015. GENERAL DEFINITIONS
(a) [No Changes]
(b) Specific Definitions. When used in these rules
(1) "certified copy" means a copy of a document signed and verified as a true copy by the officer to whose custody the original , whether in paper or electronic form, is entrusted;
(2)-(7) [No Changes]
Committee Notes
Rule History
1977-2008 Revision: [No Changes]
2020: Revision: Subdivision (b)(1) amended to reference electronic original documents consistent with section 732.526, Florida Statutes. Committee notes revised.
Statutory References
§ 1.01, Fla. Stat. Definitions.
§ 393.063, Fla. Stat. Definitions.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 731.201, Fla. Stat. General definitions.
§ 732.526, Fla. Stat. Probate.
§ 736.0103, Fla. Stat. Definitions.
§ 738.102, Fla. Stat. Definitions.
§ 739.102, Fla. Stat. Definitions.
§ 744.102, Fla. Stat. Definitions.
RULE 5.043. DEPOSIT OF WILLS AND CODICILS
Notwithstanding any rule to the contrary, and unless the court orders otherwise, any original executed will or codicil , including but not limited to an electronic will, deposited with the court must be retained by the clerk in its original form and must not be destroyed or disposed of by the clerk for 20 years after submission regardless of whether the will or codicil has been permanently recorded as defined by Florida Rule of Judicial Administration 2.430.
Committee Notes
2012 Adoption. [No Changes]
Rule History
2012 Revision: New Rule.
2020 Revision: Added reference to deposit of electronic wills consistent with section 732.526, Florida Statutes. Committee notes revised.
§ 732.526, Fla. Stat. Probate.
§ 732.901, Fla. Stat. Production of wills.
Rule References
Fla. R. Jud. Admin. 2.430 Retention of court records.
Fla. R. Jud. Admin. 2.525 Electronic filing.
RULE 5.120. ADMINISTRATOR AD LITEM AND GUARDIAN AD LITEM
(a)-(g) [No Changes]
Committee Notes
Rule History
1977-2012 Revision: [No Changes]
2014 Revision: Amends subdivision (b)(1) to conform toFla. R. Jud. Admin.Florida Rule of Judicial Administration 2.425. Committee notes revised.
2020 Revision: Committee notes revised. Citation form changes in committee notes.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 731.303, Fla. Stat. Representation.
§ 733.308, Fla. Stat. Administrator ad litem.
§ 733.708, Fla. Stat. Compromise.
§ 744.3025, Fla. Stat. Claims of minors.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.387, Fla. Stat. Settlement of claims.
§ 744.391, Fla. Stat. Actions by and against guardian or ward.
§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.
§ 985.43, Fla. Stat. Predisposition reports; other evaluations.
§ 985.441, Fla. Stat. Commitment.
§ 985.455, Fla. Stat. Other dispositional issues.
Rule References
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.
Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.
RULE 5.200. PETITION FOR ADMINISTRATION
The petition for administration shall be verified by the petitioner and shall contain:
(a)-(j) [No Changes]
Committee Notes
Rule History
1977-2012 Revision: [No Changes]
2014 Revision: Subdivision (c) amended to conform toFla. R. Jud. Admin.Florida Rule of Judicial Administration 2.425. Committee notes revised.
2020 Revision: Committee notes revised. Citation form changes in committee notes.
Statutory References
§ 731.201(23), Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 732.522, Fla. Stat. Method and place of execution.
§ 732.526, Fla. Stat. Probate.
§ 733.202, Fla. Stat. Petition.
§ 733.301, Fla. Stat. Preference in appointment of personal representative.
§ 733.302, Fla. Stat. Who may be appointed personal representative.
§ 733.303, Fla. Stat. Persons not qualified.
§ 733.304, Fla. Stat. Nonresidents.
§ 733.305, Fla. Stat. Trust companies and other corporations and associations.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.201 Notice of petition for administration.
Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.
Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.
RULE 5.210. PROBATE OF WILLS WITHOUT ADMINISTRATION
(a)-(d) [No Changes]
Committee Notes
Examples illustrating when a will might be admitted to probate are when an instrument (such as a will or trust agreement) gives the decedent a power exercisable by will, such as the power to appoint a successor trustee or a testamentary power of appointment. In each instance, the will of the person holding the power has no legal significance until admitted to probate. There may be no assets, creditors' issues, or other need for a probate beyond admitting the will to establish the exercise or non-exercise of such powers.
Rule History
1975-2011 Revision: [No Changes]
2014 Revision: Subdivision (a)(3) amended to conform toFla. R. Jud. Admin.Florida Rule of Judicial Administration 2.425. Committee notes revised.
2020 Revision: Committee notes revised. Citation form changes in committee notes.
Statutory References
§ 731.201, Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 732.502, Fla. Stat. Execution of wills.
§ 732.503, Fla. Stat. Self-proof of will.
§ 732.523, Fla. Stat. Self-proof of electronic will.
§ 732.526, Fla. Stat. Probate.
§ 733.103, Fla. Stat. Effect of probate.
§ 733.201, Fla. Stat. Proof of wills.
§ 733.202, Fla. Stat. Petition.
§ 733.204, Fla. Stat. Probate of a will written in a foreign language.
§ 733.205, Fla. Stat. Probate of notarial will.
§ 733.206, Fla. Stat. Probate of will of resident after foreign probate.
§ 733.207, Fla. Stat. Establishment and probate of lost or destroyed will.
§ 734.104, Fla. Stat. Foreign wills; admission to record; effect on title.
Rule References
Fla. Prob. R. 5.015 General definitions.
Fla. Prob. R. 5.020 Pleadings, verification; motions.
Fla. Prob. R. 5.205(a)(7) Filing evidence of death.
Fla. Prob. R. 5.215 Authenticated copy of will.
Fla. Prob. R. 5.216 Will written in foreign language.
Fla. Prob. R. 5.230 Commission to prove will.
Fla. Prob. R. 5.240 Notice of administration.
Fla. Prob. R. 5.270 Revocation of probate.
Fla. R. Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.
RULE 5.215. AUTHENTICATED COPY OF WILL
An authenticated copy of a will may be admitted to probate if the original could be admitted to probate in Florida.
Committee Notes
Rule History
2002-2003 Revision: [No Changes]
2020 Revision. Committee notes revised.
Statutory References
§ 732.523, Fla. Stat. Self-proof of electronic will.
§ 732.526, Fla. Stat. Probate.
§ 733.205, Fla. Stat. Probate of notarial will.
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