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Amendments to the probate rules.

The Florida Supreme Court recently adopted amendments to the Florida Probate Rules, in response to recent legislation. See In re Amendments to the Florida Probate Rules, No. SC11-1575 (Fla. September 28, 2011). The court invites all interested persons to comment on the amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. n original and nine paper copies of all comments must be filed with the court on or before November 28, with a certificate of service verifying that a copy has been served on committee co-chairs, John Christopher Moran, Gunster Yoakley & Stewart P.A., 777 South Flagler Drive, Suite 500 E, West Palm Beach 33401-6121 and Tasha K. Pepper-Dickinson, Jones Foster Johnston & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, West Palm Beach 33401-5950, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until December 19 to file a response to any comments filed with the court. Electronic copies of all comments and responses also must be filed in accordance with the court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES, CASE NO. SC11-1575. RULE 5.025. ADVERSARY PROCEEDINGS

(a) Specific Adversary Proceedings. The following [begin strikethrough]must be[end strikethrough]are adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, reform a will, modify a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will.

(b) Declared Adversary Proceedings. Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.

(1) If served by the petitioner, the declaration [begin strikethrough]shall[end strikethrough]must be served with the petition to which it relates.

(2) If served by the respondent, the declaration and a written response to the petition [begin strikethrough]shall[end strikethrough]must be served at the earlier of:

(A) within 20 days after service of the petition, or

(B) prior to the hearing date on the petition.

(3) When the declaration is served by a respondent, the petitioner [begin strikethrough]shall[end strikethrough]must promptly serve formal notice on all other interested persons.

(c) [No Change]

(d) Notice and Procedure in Adversary Proceedings.

(1) Petitioner [begin strikethrough]shall[end strikethrough]must serve formal notice.

(2) After service of formal notice, the proceedings, as nearly as practicable, [begin strikethrough]shall[end strikethrough]must be conducted similar to suits of a civil nature [begin strikethrough]and the Florida Rules of Civil Procedure shall govern[end strikethrough], including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.

(3) The court on its motion or on motion of any interested person may enter orders to avoid undue delay in the main administration.

(4) If a proceeding is already commenced when an order is entered determining the proceeding to be adversary, it [begin strikethrough]shall[end strikethrough]must thereafter be conducted as an adversary proceeding. The order [begin strikethrough]shall[end strikethrough]must require interested persons to serve written defenses, if any, within 20 days from the date of the order. It [begin strikethrough]shall[end strikethrough]is not [begin strikethrough]be[end strikethrough] necessary to re-serve the petition except as ordered by the court.

(5) When the proceedings are adversary, the caption of subsequent pleadings, as an extension of the probate caption, [begin strikethrough]shall[end strikethrough]must include the name of the first petitioner and the name of the first respondent.

Committee Notes [No Change]

Rule History

1975-2008 Revision: [No Change]

2011 Revision: Subdivision (a) revised to add "reform a will, modify a will" and "determine pretermitted status." Subdivision (d)(2) modified to insure that an award of attorneys' fees in a probate or guardianship proceeding follows the law and procedures established for such proceedings, rather than the law and procedures for civil proceedings. See Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So. 2d 467 (Fla. 2005). Editorial changes to conform to the court's guidelines for rules submissions as set forth in Administrative Order AOSC06-14. Committee Notes revised.

Statutory References

[section] 393.12, Fla. Stat. Capacity; appointment of guardian advocate.

[section] 732.201-732.2155, Fla. Stat. Elective share of surviving spouse.

[section] 732.301, Fla. Stat. Pretermitted spouse.

[section] 732.302, Fla. Stat. Pretermitted children.

[section] 732.507, Fla. Stat. Effect of subsequent marriage, birth, adoption, or dissolution of marriage.

[section][section] 732.6005-732.611, Fla. Stat. Rules of construction.

[section] 732.615, Fla. Stat. Reformation to correct mistakes.

[section] 732.616, Fla. Stat. Modification to achieve testator's tax objectives.

[section] 733.105, Fla. Stat. Determination of beneficiaries.

[section] 733.107, Fla. Stat. Burden of proof in contests; presumption of undue influence.

[section] 733.109, Fla. Stat. Revocation of probate.

[section] 733.207, Fla. Stat. Establishment and probate of lost or destroyed will.

[section] 733.208, Fla. Stat. Discovery of later will.

[section] 733.504, Fla. Stat. Removal of personal representative; causes for removal.

[section] 733.505, Fla. Stat. Jurisdiction in removal proceedings.

[section] 733.506, Fla. Stat. Proceedings for removal.

[section] 733.5061, Fla. Stat. Appointment of successor upon removal.

[section] 733.603, Fla. Stat. Personal representative to proceed without court order.

[section] 733.609, Fla. Stat. Improper exercise of power; breach of fiduciary duty.

[section] 733.619(2), (4), Fla. Stat. Individual liability of personal representative.

[section] 733.814, Fla. Stat. Partition for purpose of distribution.

[section] 744.3085, Fla. Stat. Guardian advocates.

[section] 744.474, Fla. Stat. Reasons for removal of guardian.

[section] 744.477 Fla. Stat. Proceedings for removal of a guardian.

Rule References [No Change] Rule 5.240. Notice of Administration

(a) [No Change]

(b) Contents. The notice shall state:

(1) the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils;

(2) the name and address of the personal representative and of the personal representative's attorney, and that the fiduciary lawyer-client privilege in section 90.5021, Florida Statutes, applies with respect to the personal representative and any attorney employed by the personal representative;

(3) that any interested person on whom the notice is served who challenges the validity of the will, the qualifications of the personal representative, venue, or jurisdiction of the court is [begin strikethrough]required to[end strikethrough]must file any objections with the court in the manner provided in the Florida Probate Rules within the time required by law or those objections are forever barred;

(4) that any person entitled to exempt property [begin strikethrough]is required to[end strikethrough]must file a petition for determination of exempt property within the time provided by law or the right to exempt property is deemed waived; and

(5) that an election to take an elective share must be filed within the time provided by law.

(c) Copy of Will. Unless the court directs otherwise, the personal representative of a testate estate [begin strikethrough]shall[end strikethrough]must, upon written request, furnish a copy of the will and all codicils admitted to probate to any person on whom the notice of administration was served.

(d) [No Change]

(e) Waiver of Service. For the purpose of determining deadlines established by reference to the date of service of a copy of the notice of administration in cases in which service has been waived, service on a person who has waived notice [begin strikethrough]shall be[end strikethrough]is deemed to occur on the date the waiver is filed.

Committee Notes

Rule History

1977-2007 Revision: [No Change]

2011 Revision: Subdivision (b)(2) amended to conform to amendment to section 732.212, Florida Statutes, relating to attorney-client privilege for fiduciaries and their attorneys. Editorial changes to conform to the court's guidelines for rules submissions as set forth in Administrative Order AOSC0614. Statutory reference to section 732.402, Florida Statutes, added. Committee Notes revised.

Statutory References

[section] 731.201(23), Fla. Stat. General definitions.

[section] 731.301, Fla. Stat. Notice.

[section] 731.302, Fla. Stat. Waiver and consent by interested person.

[section] 732.2135, Fla. Stat. Time of election; extensions; withdrawal.

[section] 732.402, Fla. Stat. Exempt property.

[section] 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and undue influence.

[section] 733.101, Fla. Stat. Venue of probate proceedings.

[section] 733.109, Fla. Stat. Revocation of probate.

[section] 733.212, Fla. Stat. Notice of administration; filing of objections.

[section] 733.2123, Fla. Stat. Adjudication before issuance of letters.

[section] 733.302, Fla. Stat. Who may be appointed personal representative.

[section] 733.303, Fla. Stat. Persons not qualified.

[section] 733.305, Fla. Stat. Trust companies and other corporations and associations.

[section] 733.504, Fla. Stat. Removal of personal representative; causes for removal.

[section] 733.506, Fla. Stat. Proceedings for removal.

Rule References

[No Change]
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Title Annotation:Notice
Publication:Florida Bar News
Date:Oct 15, 2011
Words:1566
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