Proposed amendments to the probate rules.

The Florida Supreme Court adopted amendments to the Florida Probate Rules proposed by the Florida Bar's Probate Rules Committee to implement recent changes to section 393.12, Florida Statutes. See In re: Amendments to the Florida Probate Rules, No. SC08-1256 (Fla. July 10, 2008). The Court invites all interested persons to comment on the amendments, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the Court on or before September 8, with a certificate of service verifying that a copy has been served on Frank T. Pilotte, Committee Chair, 340 Royal Palm Way, Suite 100, Palm Beach 33480-4323, 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 September 29, 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. SC08-1256

RULE 5.015. GENERAL DEFINITIONS

(a) General. The definitions and rules of construction stated or referred to in sections 1.01 and 393.12, Florida Statutes, and chapters 731, 732, 733, 734, 735, 736, 738, 739, and 744, Florida Statutes, as amended from time to time, shall apply to these rules, unless otherwise defined in these rules.

(b) Specific Definitions. When used in these rules

(1)-(3) [No Change]

(4) "judge" means a judge of the circuit court, including any judge elected, appointed, substituted, or assigned to serve as judge of the court;

(5) "guardian advocate" means a person appointed for a person with a developmental disability pursuant to section 393.12, Florida Statutes;

(6) "guardian" means a person appointed pursuant to chapter 744, Florida Statutes, or a guardian advocate unless a rule indicates otherwise;

(7) "ward" means an individual for whom a guardian is appointed.

Committee Notes

Rule History

1977 Revision: No change in rule. Correction of typographical error in committee note.

This is intended to simplify drafting of these rules and should be liberally construed. See Fla. Prob. R. 5.190 and 5.540 and also [subsection] 731.201 and 744.102, Fla. Stat.

1988 Revision: Rule was expanded due to deletion of rule 5.190. Committee notes expanded. Citation form changes in rule and committee notes.

1992 Revision: Citation form changes in rule and committee notes.

2000 Revision: Subdivision (b)(2) amended to delete outdated reference to rule 5.550(c).

2007 Revision: Subdivision (a) amended to add reference to chapter 736, Florida Statutes, which was added to the statutes effective July 1, 2007 and which replaces deleted chapter 737, and to add reference to chapter 739, Florida Statutes, which was added effective July 1, 2005. Committee notes revised.

2008 Revision: Subdivision (a) amended to add reference to section 393.12, Florida Statutes, which governs guardian advocates for persons with developmental disabilities. As provided by section 744.102(11), the term "guardian advocate" as used in the Florida Guardianship Law and these rules does not include a guardian advocate appointed for a person determined to lack capacity to consent to treatment under section 394.4598, Florida Statutes. Subdivisions (b)(5) through (b)(7) added to reflect 2008 amendments to section 393.12, Florida Statutes. Committee notes revised.

Statutory References

[section] 1.01, Fla. Stat. Definitions.

[section] 393.063, Fla. Stat. Definitions.

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

[section] 731.201, Fla. Stat. General definitions.

[section] 736.0103, Fla. Stat. Definitions.

[section] 738.102, Fla. Stat. Definitions.

[section] 739.102, Fla. Stat. Definitions.

[section] 744.102, Fla. Stat. Definitions.

RULE 5.020. PLEADINGS; VERIFICATION; MOTIONS

(a)-(e) [No Change]

Committee Notes

The time for determining when a motion for rehearing must be served has been clarified in view of Casto v. Casto, 404 So. 2d 1046 (Fla. 1981).

Rule History

1977 Revision: Editorial change (rule) and expansion of committee note. Subdivisions (a), (b), and (d) substantially the same as subdivisions (a), (b), and (f) of prior rule 5.030. Subdivision (c) taken from section 731.104, Florida Statutes. For adversary proceedings see new rule 5.025. Notice of administration is not a pleading within the meaning of this rule.

1980 Revision: Subdivisions (c) and (d) have been redesignated as (e) and (f). New subdivisions (c) and (d) are added to provide for the use of motions in probate proceedings other than adversary proceedings and to specifically authorize a procedure for rehearing.

1984 Revision: Minor editorial changes. Subdivision (f) of prior rule has been deleted as it is now covered under the adversary rules.

1988 Revision: Editorial change in caption of (a). Committee notes revised. Citation form change in committee notes.

1992 Revision: Editorial changes. Committee notes revised. Citation form changes in rule and committee notes.

2003 Revision: Committee notes revised.

2008 Revision: Committee notes revised.

Statutory References

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

[section] 731.104, Fla. Stat. Verification of documents.

[section] 731.201, Fla. Stat. General definitions.

[section] 733.202, Fla. Stat. Petition.

[section] 733.604(1), Fla. Stat. Inventory.

[section] 733.901, Fla. Stat. Final discharge.

[section] 735.203, Fla. Stat. Petition for summary administration.

[section] 744.104, Fla. Stat. Verification of documents.

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

[section] 744.3201, Fla. Stat. Petition to determine incapacity.

[section] 744.331, Fla. Stat. Procedures to determine incapacity.

[section] 744.334, Fla. Stat. Petition for appointment of guardian or professional guardian; contents.

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.

RULE 5.025. ADVERSARY PROCEEDINGS

(a)-(d) [No Change]

Committee Notes

The court on its initiative or on motion of any party may order any proceeding to be adversary or nonadversary or enter any order that will avoid undue delay. The personal representative would be an interested person in all adversary proceedings. A prescribed form for the caption is provided that will facilitate the clerk's and the court's ability to segregate such adversary proceeding from other adversary proceedings and from the main probate file:

Court Case # ) In Re Estate of John B. Jones) ) Julia Jones,) )

Petitioner,) ) v.) ) Harold Jones, as Personal) Representative, et al.,) ) Respondents.)--

Rule History

1975 Revision: New rule. 324 So. 2d 38.

1977 Revision: Editorial changes to (a)(1).

1984 Revision: Extensive changes, Committee notes revised and expanded.

1988 Revision: Changes in (a) add proceedings to remove a guardian and to surcharge a guardian to the list of specific adversary proceedings and delete proceedings to determine and award the elective share from the list. Change in (b)(4) clarifies on whom the petitioner must serve formal notice. Editorial change in (d)(2) and (d)(5). Committee notes revised. Citation form changes in committee notes.

1992 Revision: Deletion of (b)(3) as unnecessary. Former (b)(4) renumbered as new (b)(3). Committee notes revised. Citation form changes in committee notes.

2001 Revision: Change in (a) to add determination of amount of elective share and contribution as specific adversary pro ceedings. Committee notes revised.

2003 Revision: Committee notes revised.

2008 Revision: Committee notes revised.

Statutory References

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

[subsection] 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.

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

[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...