In Re: Amendments to the Florida Probate Rules – 2018 Fast-Track Report , 253 So. 3d 983 ( 2018 )

Supreme Court of Florida
____________
No. SC18-1459
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IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES—2018
FAST-TRACK REPORT.
September 27, 2018
PER CURIAM.
In response to recent legislation, The Florida Bar’s Probate Rules Committee
(Committee) has filed an out-of-cycle, fast-track report1 proposing amendments to
Florida Probate Rule 5.025 (Adversary Proceedings). We have jurisdiction2 and
adopt the amendments as proposed.
The proposed amendments address the enactment of section 825.1035,
Florida Statutes (2018), in chapter 2018-100, section 2, Laws of Florida, which
became effective July 1, 2018.3 The Executive Committee of the Board of
Governors of The Florida Bar unanimously approved the Committee’s proposals.
1. See Fla. R. Jud. Admin. 2.140(e).
2. See art. V, § 2(a), Fla. Const.
3. See ch. 2018-100, § 6, Laws of Fla.
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.
We amend subdivision (a) of rule 5.025 to add proceedings for an injunction
under section 825.1035 to the list of adversary proceedings. Specifically, we
include “obtain an injunction or temporary injunction pursuant to section
825.1035, Florida Statutes” to the first sentence of rule 5.025(a).
Next, we amend rule 5.025(d)(1) to exclude proceedings under section
825.1035, Florida Statutes, from the formal notice requirements of rule 5.025
because section 825.1035(7) contains its own notice and service requirements.
Additionally, section 825.1035(5) authorizes the issuance of temporary injunctions
ex parte in certain circumstances.
Finally, we add a new revision note to rule 5.025 to detail the
aforementioned amendments as well as a new statutory reference to section
825.1035, Florida Statutes.
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
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comment prior to their adoption, interested persons shall have sixty days from the
date of this opinion in which to file comments with the Court.4
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
4. All comments must be filed with the Court on or before November 26,
2018, with a certificate of service verifying that a copy has been served on
Committee Co-Chair Theodore Stanley Kypreos, 505 S. Flagler Drive, Suite 1100,
West Palm Beach, Florida 33401-5950, tkypreos@jonesfoster.com, and
Committee Co-Chair Cristina Papanikos, 600 Brickell Avenue, Suite 3500, Miami,
Florida 33131-3090, cpapanikos@gunster.com, and on the Bar Staff Liaison to the
Committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-
2300, htelfer@floridabar.org, 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 Co-Chairs have until December 17, 2018,
to file a response to any comments filed with the Court. If filed by an attorney in
good standing with The Florida Bar, the comment must be electronically filed via
the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic
Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla.
Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer
not licensed to practice in Florida, the comment may be, but is not required to be,
filed via the Portal. Comments filed via the Portal must be submitted in Microsoft
Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla.
Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a
comment electronically must mail or hand-deliver the originally signed comment
to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street,
Tallahassee, Florida 32399-1927; no additional copies are required or will be
accepted.
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Original Proceeding – The Florida Probate Rules Committee
Theodore Stanley Kypreos, Co-Chair, Florida Probate Rules Committee, West
Palm Beach, Florida; Cristina Papanikos, Co-Chair, Florida Probate Rules
Committee, Miami, Florida; and Joshua E. Doyle, Executive Director, and Heather
Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
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APPENDIX
RULE 5.025. ADVERSARY PROCEEDINGS
(a) Specific Adversary Proceedings. The following 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, obtain an injunction or temporary injunction pursuant to
section 825.1035, Florida Statutes, 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)-(c) [No Changes]
(d) Notice and Procedure in Adversary Proceedings.
(1) Petitioner must serve formal notice, except as provided in
proceedings pursuant to section 825.1035, Florida Statutes.
(2)-(5) [No Changes]
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, )
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)
v. )
)
Harold Jones, as Personal )
Representative, et al., )
)
Respondents. )
Rule History
1975 Revision-2008 Revision [No Changes]
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 Nnotes revised.
2018 Revision: Subdivisions (a) and (d)(1) amended to reference section
825.1035, Florida Statutes. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§§ 732.201–732.2155, Fla. Stat. Elective share of surviving spouse.
§ 732.301, Fla. Stat. Pretermitted spouse.
§ 732.302, Fla. Stat. Pretermitted children.
§ 732.507, Fla. Stat. Effect of subsequent marriage, birth, adoption, or
dissolution of marriage.
§§ 732.6005–732.611, Fla. Stat. Rules of construction.
§ 732.615, Fla. Stat. Reformation to correct mistakes.
§ 732.616, Fla. Stat. Modification to achieve testator’s tax objectives.
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§ 733.105, Fla. Stat. Determination of beneficiaries.
§ 733.107, Fla. Stat. Burden of proof in contests; presumption of undue
influence.
§ 733.109, Fla. Stat. Revocation of probate.
§ 733.207, Fla. Stat. Establishment and probate of lost or destroyed will.
§ 733.208, Fla. Stat. Discovery of later will.
§ 733.504, Fla. Stat. Removal of personal representative; causes for removal.
§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.
§ 733.506, Fla. Stat. Proceedings for removal.
§ 733.5061, Fla. Stat. Appointment of successor upon removal.
§ 733.603, Fla. Stat. Personal representative to proceed without court order.
§ 733.609, Fla. Stat. Improper exercise of power; breach of fiduciary duty.
§ 733.619(2), (4), Fla. Stat. Individual liability of personal representative.
§ 733.814, Fla. Stat. Partition for purpose of distribution.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.474, Fla. Stat. Reasons for removal of guardian.
§ 744.477, Fla. Stat. Proceedings for removal of a guardian.
§ 825.1035, Fla. Stat. Injunction for protection against exploitation of a
vulnerable adult.
Rule References [No Changes]
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