In Re: Amendments to the Florida Probate Rules - 2021 Fast-Track Report ( 2021 )

Supreme Court of Florida
____________
No. SC21-1411
____________
IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES—
2021 FAST-TRACK REPORT.
November 4, 2021
PER CURIAM.
The Florida Bar’s Probate Rules Committee (Committee) has
filed a “fast-track” report proposing amendments to the Florida
Probate Rules in response to recent legislation. See Fla. R. Gen.
Prac. & Jud. Admin. 2.140(e). We have jurisdiction 1 and adopt the
amendments as proposed.
The Committee proposes amendments to the following rules:
5.020 (Pleadings; Verification; Motions); 5.200 (Petition for
Administration); 5.320 (Oath of Personal Representative); 5.340
(Inventory); 5.402 (Notice of Lien on Protected Homestead); 5.403
(Proceedings to Determine Amount of Lien on Protected Homestead);
1. See art. V, § 2(a), Fla. Const.
5.404 (Notice of Taking Possession of Protected Homestead); 5.405
(Proceedings to Determine Protected Homestead Real Property); and
5.555 (Guardianships of Minors). The amendments implement
changes to chapters 69 and 736, Florida Statutes, made by chapter
2021-183, Laws of Florida, and to chapter 733, Florida Statutes,
made by chapter 2021-221, Laws of Florida, which took effect on
July 1, 2021. See ch. 2021-183, §§ 1, 5, 12, Laws of Fla.; ch. 2021-
221, § 2, Laws of Fla.
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 5.200 (Petition for Administration),
new subdivision (k)(2) is added to require that petitions for
administration contain a statement whether the personal
representative seeking appointment has been convicted in any state
or foreign jurisdiction of abuse, neglect, or exploitation of an elderly
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person or a disabled adult, as those terms are defined in section
825.101, Florida Statutes. See ch. 2021-221, § 2, Laws of Fla.
(enacting § 733.303(1)(b), Fla. Stat. (2021)). The remaining
subdivisions are renumbered accordingly.
Next, the form within rule 5.320 (Oath of Personal
Representative) is amended to include an affirmative statement that
the personal representative has not been convicted in any state or
foreign jurisdiction of abuse, neglect, or exploitation of an elderly
person or a disabled adult. See id. Additionally, the notary block in
the form is updated to reflect the option for online notarization.
Last, rule 5.405 (Proceedings to Determine Protected
Homestead Real Property) is renamed “Proceedings to Determine
Protected Homestead Status of Real Property.” Subdivision (a)
(Petition) is amended to provide that a petition may be filed
pursuant to rule 5.405 to determine the protected homestead
status of real property owned by a trust as described in section
733.707(3), Florida Statutes (2021), and new subdivision (b)(5) is
added to require that a petition filed pursuant to rule 5.405 state
“how the real property was owned at the time of the decedent’s
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death.” See ch. 2021-183, §§ 5, 12, Laws of Fla. (enacting §§
736.0201(7) and 736.1109, Fla. Stat. (2021)).
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
2. All comments must be filed with the Court on or before
January 18, 2022, with a certificate of service verifying that a copy
has been served on the Committee Chair, Cady Lynne Huss, Spivey
& Huss, P.A., 645 South Orange Avenue, Sarasota, Florida 34236,
cady@spiveyhuss.com, and on the Bar Staff Liaison to the
Committee, Krys Godwin, 651 East Jefferson Street, Tallahassee,
Florida 32399-2300, kgodwin@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 Chair has until February 8, 2022, 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. Any person unable to submit a
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It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Probate Rules
Cady L. Huss, Chair, Florida Probate Rules Committee, Sarasota,
Florida, Joshua E. Doyle, Executive Director, and Krys Godwin,
Staff Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
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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APPENDIX
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
[No Change]
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
status of real property.
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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 5.200. PETITION FOR ADMINISTRATION
The petition for administration shall be verified by the
petitioner and shall contain:
(a) - (j) [No Change]
(k) a statement that the personal representative seeking
appointment is qualified to serve under the laws of Florida as a
business entity under section 733.305, Florida Statutes, or, if an
individual, that the person is qualified to serve under the laws of
Florida, including:
(1) [No Change]
(2) whether the person has been convicted in any state
or foreign jurisdiction of abuse, neglect, or exploitation of an elderly
person or a disabled adult, as those terms are defined in section
825.101, Florida Statutes;
(3) that the person is mentally and physically able to
perform the duties of a personal representative;
(34) that the person is 18 years of age or older; and
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(45) whether the person is a resident of Florida and, if
not a resident, a statement of the person’s relationship to the
decedent in accordance with section 733.304, Florida Statutes.
Committee Notes
Rule History
1977 Revision - 2020 Revision [No Change]
2021 Revision: Subdivision (k) amended to require a statement
as to whether the personal representative seeking appointment has
been convicted of abuse, neglect, or exploitation of an elderly or
disabled adult.
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.
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§ 825.101, Fla. Stat. Definitions.
Rule References
[No Change]
RULE 5.320. OATH OF PERSONAL REPRESENTATIVE
Before the granting of letters of administration, the personal
representative shall file an oath to faithfully administer the estate of
the decedent. The oath shall also contain a statement that the
personal representative has reviewed the statutes relating to the
requirements for appointment as personal representative, that the
personal representative is qualified to serve, and that the personal
representative has a continuing duty to file and serve a notice upon
the occurrence of an event that would disqualify the personal
representative. If the petition is verified by the prospective personal
representative individually, the oath may be incorporated in the
petition or in the designation of resident agent. The oath shall
substantially comply with the following form:
[CAPTION]
OATH OF PERSONAL REPRESENTATIVE
STATE OF
COUNTY OF
I, , (Affiant), state under oath that:
1. I am qualified within the provisions of sections 733.302,
733.303, and 733.304, Florida Statutes, to serve as personal
representative of the estate of , deceased. I have
reviewed the statutes and understand the qualifications. Under
penalties of perjury, I certify that the following statements are true:
a. I am 18 years of age or older.
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b. I have never been convicted of a felony.
c. I have never been convicted in any state or foreign
jurisdiction of abuse, neglect, or exploitation of an elderly person or
a disabled adult, as those terms are defined in section 825.101,
Florida Statutes.
d. I am mentally and physically able to perform the
duties of personal representative.
d.e. I am a resident of the State of Florida, or, if I am not
a resident of the State of Florida, I am:
a legally adopted child or adoptive parent of
the decedent;
related by lineal consanguinity to the
decedent; a spouse or a brother, sister, uncle, aunt, nephew, or
niece of the decedent, or someone related by lineal consanguinity to
any such person; or
the spouse of a person otherwise qualified
under one of the provisions above.
2. I will faithfully administer the estate of the decedent
according to law.
3. My place of residence is , and my post
office address is .
4. I will promptly file and serve a notice on all interested
persons at any time I know that I would not be qualified for
appointment and will include the reason I would not then be
qualified and the date on which the disqualifying event occurred.
5. I will file and serve a notice within 20 days on all
interested persons, in the event there is a change in my residence
address, street address, or mailing address.
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Affiant
Sworn to and subscribed to before me on ,
______, by Affiant, who is personally known to me or who has
produced as identification.
Notary Public State of
My Commission Expires:
My Commission Number is:
(Affix Notarial Seal)
Sworn to (or affirmed) and subscribed before me by means of
______ physical presence or ______ online notarization, this ______
day of __________, 20 , by ____________________ (name of person
making statement).
Signature of Notary
Public—State of Florida
(Print, Type, or Stamp
Commissioned Name of
Notary Public)
Personally Known or Produced Identification k
Type of Identification Produced l
Committee Notes
It is contemplated the oath may be signed concurrently with
the petition for administration and will be valid even if it predates
the order appointing the personal representative.
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Rule History
1977 Revision - 2019 Revision [No Change]
2021 Revision: Form Oath amended to require a statement
that the personal representative has never been convicted of abuse,
neglect, or exploitation of an elderly or disabled adult and to revise
notary block for compliance with revised section 117.05, Florida
Statutes.
Statutory References
733.302, Fla. Stat. Who may be appointed personal
representative
733.303, Fla. Stat. Persons not qualified
733.304, Fla. Stat. Nonresidents
733.3101, Fla. Stat. Personal representative not qualified
825.101, Fla. Stat. Definitions
Rule References
[No Change]
RULE 5.340. INVENTORY
(a) - (h) [No Change]
Committee Notes
Inventories of the elective estate under subdivision (f) shall be
afforded the same confidentiality as probate inventories. §
733.604(1) and (2), Fla. Stat.
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Inventories are still required to be filed. Once filed, however,
they are subject to the confidentiality provisions found in sections
733.604(1) and (2), Florida Statutes.
Constitutional protected homestead real property is not
necessarily a probatable asset. Disclosure on the inventory of real
property appearing to be constitutional protected homestead
property informs interested persons of the homestead issue.
Interested persons are entitled to reasonable information
about estate proceedings on proper request, including a copy of the
inventory, an opportunity to examine appraisals, and other
information pertinent to their interests in the estate. The rights of
beneficiaries to information contained in estate inventories is
limited by section 733.604(3), Florida Statutes. Inventories of the
elective estate under subdivision (f) affects a broader class of
interested persons who may obtain information regarding the assets
disclosed therein subject to control by the court and the
confidentiality afforded such inventories under section 733.604(1)
and (2).
Rule History
[No Change]
Constitutional Reference
[No Change]
Statutory References
[No Change]
Rule References
Fla. Prob. R. 5.041 Service of pleadings and documents.
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Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. Prob. R. 5.360 Elective share.
Fla. Prob. R. 5.405 Proceedings to determine homestead status
of real property.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.402. NOTICE OF LIEN ON PROTECTED HOMESTEAD
(a) - (c) [No Change]
Committee Notes
Rule History
[No Change]
Statutory References
[No Change]
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.403 Proceedings to determine amount of lien on
protected homestead.
Fla. Prob. R. 5.404 Notice of taking possession of protected
homestead.
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Fla. Prob. R. 5.405 Proceedings to determine protected
homestead status of real property.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.403. PROCEEDINGS TO DETERMINE AMOUNT OF
LIEN ON PROTECTED HOMESTEAD
(a) - (c) [No Change]
Committee Notes
Rule History
[No Change]
Statutory References
[No Change]
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.402 Notice of lien on protected homestead.
Fla. Prob. R. 5.404 Notice of taking possession of protected
homestead.
Fla. Prob. R. 5.405 Proceedings to determine protected
homestead status of real property.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
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RULE 5.404. NOTICE OF TAKING POSSESSION OF
PROTECTED HOMESTEAD
(a) - (c) [No Change]
Committee Notes
Rule History
[No Change]
Statutory References
[No Change]
Rule References
Fla. Prob. R. 5.402 Notice of lien on protected homestead.
Fla. Prob. R. 5.403 Proceedings to determine amount of lien on
protected homestead.
Fla. Prob. R. 5.405 Proceedings to determine protected
homestead status of real property.
RULE 5.405. PROCEEDINGS TO DETERMINE PROTECTED
HOMESTEAD STATUS OF REAL PROPERTY
(a) Petition. An interested person may file a petition to
determine the protected homestead status of real property owned by
the decedent or owned by the trustee of a trust described in section
733.707(3), Florida Statutes, of which the deceased settlor was
treated as the owner of the real property pursuant to section
732.4015, Florida Statutes.
(b) Contents. The petition shall be verified by the petitioner
and shall state:
(1) – (3) [No Change]
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(4) a legal description of the property owned by the
decedent on which the decedent resided; and
(5) how the real property was owned at the time of the
decedent’s death; and
(6) any other facts in support of the petition.
(c) [No Change]
Committee Notes
This rule establishes the procedure by which the personal
representative or any interested person may petition the court for a
determination that certain real property constituted the decedent’s
protected homestead property, in accordance with article X, section
4 of the Florida Constitution. The jurisdiction of the court to
determine constitutional protected homestead property was
established by In re Noble’s Estate, 73 So. 2d 873 (Fla. 1954).
Rule History
1984 Revision - 2014 Revision [No Change]
2021 Revision: Amends subdivisions (a) and (b)(5) to include
real property owned by a trust. Committee notes revised.
Constitutional Reference
[No Change]
Statutory References
§ 731.104, Fla. Stat. Verification of documents.
§ 731.201(33), Fla. Stat. General definitions.
§ 732.401, Fla. Stat. Descent of homestead.
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§ 732.4015, Fla. Stat. Devise of homestead.
§ 733.607, Fla. Stat. Possession of estate.
§ 733.608, Fla. Stat. General power of the personal
representative.
§ 733.707(3), Fla. Stat. Order of payment of expenses and
obligations.
§ 736.0201(7), Fla. Stat. Role of court in trust proceedings.
§ 736.1109, Fla. Stat. Testamentary and revocable trusts;
homestead protections.
§ 736.151, Fla. Stat. Homestead property.
Rule References
[No Change]
RULE 5.555. GUARDIANSHIPS OF MINORS
(a) - (f) [No Change]
Committee Notes
The provisions of chapter 744, Florida Statutes, and the
guardianship rules enacted in 1989 leave some uncertainty with
respect to the procedural requirements in guardianships for minors
who are not incapacitated persons. This rule is intended to address
only certain procedures with respect to the establishment and
administration of guardianships over minors. The committee
believes that certain provisions of the guardianship law and rules
apply to both guardianships of minors as well as guardianships of
incapacitated persons and no change has been suggested with
respect to such rules. Because no adjudication of a minor is
required by statute, it is contemplated that appointment of a
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guardian for a minor may be accomplished without a hearing.
Initial and annual guardianship reports for minors have been
simplified where all assets are on deposit with a designated
financial institution under applicable Florida law.
Rule History
1991 Revision - 2020 Revision [No Change]
2021 Revision: Committee notes revised.
Statutory References
§ 69.031, Fla. Stat. Designated financial institutions for
assetsproperty in hands of guardians, curators, administrators,
trustees, receivers, or other officers.
§ 744.3021, Fla. Stat. Guardians of minors.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.334, Fla. Stat. Petition for appointment of guardian or
professional guardian; contents.
§ 744.3371(2), Fla. Stat. Notice of petition for appointment of
guardian and hearing.
§ 744.342, Fla. Stat. Minors; guardianship.
§ 744.362, Fla. Stat. Initial guardianship report.
§ 744.363, Fla. Stat. Initial guardianship plan.
§ 744.365, Fla. Stat. Verified inventory.
§ 744.367, Fla. Stat. Duty to file annual guardianship report.
§ 744.3675, Fla. Stat. Annual guardianship plan.
§ 744.3678, Fla. Stat. Annual accounting.
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§ 744.3679, Fla. Stat. Simplified accounting procedures in
certain cases.
§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities;
court approval; breach of fiduciary duty.
Rule References
[No Change]
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