Supreme Court of Florida
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No. SC15-1513
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IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES.
[December 17, 2015]
PER CURIAM.
In response to recent legislation, The Florida Bar’s Probate Rules Committee
(Committee) has filed an out-of-cycle, fast-track report proposing amendments to
the Florida Probate Rules.1 See Fla. R. Jud. Admin. 2.140(e). After considering
the proposals and reviewing the relevant legislation, we adopt the amendments as
proposed by the Committee. We also adopt the Committee’s alternate proposal to
amend rule 5.695 (Annual Guardianship Reports). We discuss the more significant
amendments below.
Rule 5.240 (Notice of Administration), subdivision (b)(3) (Contents),
currently requires that the Notice of Administration advise any interested person
that he or she must file any objections challenging the validity of the will, the
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
qualifications of the personal representative, the venue, or the court’s jurisdiction
within the time required by law, or those objections will be forever barred. The
rule is amended to delete the phrase “the qualifications of the personal
representative.” See ch. 2015-27, § 2, Laws of Fla. (amending section 733.212,
Florida Statutes, to delete the phrase “the qualifications of the personal
representative”). We also amend subdivision (b)(3) to state that any objection
challenging the validity of the will, the venue, or the jurisdiction of the court must
be filed on or before the date which is three months after the Notice of
Administration is served on the interested person. Additionally, we add new
language providing that the three-month period may only be extended for estoppel
based on a misstatement by the personal representative as to the time period to file
the objection, and not for any other reason. Unless sooner barred by section
733.212(3), Florida Statutes, any objections to the validity of a will, venue, or
jurisdiction must be filed no later than the entry of an order of final discharge of
the personal representative, or one year after service of the Notice of
Administration, whichever date occurs earlier. Id. Subdivision (d) (Objections) of
rule 5.240 is also amended to delete language in the rule addressing objections to
the qualifications of the personal representative.
Next, rule 5.310 (Disqualification of Personal Representative; Notification)
is amended to delete existing language in the rule authorizing a personal
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representative who was not qualified to act at the time of the appointment to file
and serve notice as set forth in the rule. As amended, rule 5.310 requires that a
personal representative, who was qualified at the time of the appointment, but who
knows that he or she would not be qualified if the appointment were then made, to
promptly file and serve notice on interested persons. See ch. 2015-27, § 4, Laws of
Fla. (amending section 733.3101, Florida Statutes, to require the personal
representative to resign immediately if the personal representative knows that he or
she was not qualified to act at the time of the appointment, and to outline the notice
requirements when a personal representative was qualified at the time of the
appointment, but would not be qualified for appointment if the application was
then made). Existing subdivision (a) is deleted in its entirety, and existing
subdivision (b) is divided into two new subdivisions (a) and (b). New subdivision
(a) requires the notice from the personal representative to state the reasons he or
she would not currently be qualified for appointment; new subdivision (b) requires
the notice to state that any interested person may file a petition to remove the
personal representative.
We amend rule 5.648 (Emergency Temporary Guardian), subdivision (b)
(Notice), to provide that notice of filing a petition for appointment of an
emergency temporary guardian and a hearing on the petition must be served on the
alleged incapacitated person or his or her attorney at least twenty-four hours before
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the hearing is commenced, unless the petition demonstrates that substantial harm to
the alleged incapacitated person would occur if notice is given. See ch. 2015-83, §
6, Laws of Fla. (amending section 744.3031, Florida Statutes, to require that notice
of filing a petition for appointment of an emergency temporary guardian must be
served on the alleged incapacitated person twenty-four hours before a hearing on
the petition, unless the twenty-four-hour notice period would result in harm to the
alleged incapacitated person).
We also amend rule 5.695 (Annual Guardianship Reports) to conform to
legislative changes to section 744.367, Florida Statutes, made by chapter 2015-83,
section 16, Laws of Florida, amending the timeframe in which the guardian of a
person is required to file an annual guardianship report with the court. The
Committee indicates in its report that it believes the amendments to section
744.367 are procedural in nature and may be confusing to some readers and filers.
However, in the alternative, it proposed language to amend rule 5.695, consistent
with the legislative change, to require the guardian of a person to file the annual
guardianship report at least 60 days, but not more than 90 days, before the last day
of the anniversary month when the letters of guardianship were signed (if the court
requires reporting on a calendar-year basis). Although we adopt the Committee’s
alternate proposal and amend rule 5.695, we invite interested persons to provide
comments on the amended rule.
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Finally, we amend rule 5.705 (Petition for Interim Judicial Review),
subdivision (a) (Contents), to provide that a petition for interim judicial review
may allege that the guardian is acting in a manner contrary to section 744.361,
Florida Statues. See ch. 2015-83, § 15 and § 18, Laws of Fla. (amending section
744.361, Florida Statutes, to add additional powers and duties of a guardian acting
on behalf of a ward, and section 744.3715, Florida Statutes, to provide that a
petition for interim judicial review may allege that the guardian is acting contrary
to any of the powers and duties outlined in section 744.361, or that the guardian is
denying visitation between the ward and his or her relatives in violation of section
744.361(13)).
Accordingly, the Florida Probate Rules are hereby amended as reflected in
the appendix to this opinion. New language is indicated by underscoring; deletions
are indicated by struck-through type. The committee notes are offered for
explanation only and are not adopted as an official part of the rules. The
amendments shall become effective immediately upon release of this opinion.
Because the amendments were not published for 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.2
2. All comments must be filed with the Court on or before February 15,
2016, with a certificate of service verifying that a copy has been served on the
Committee Chair, Matthew H. Triggs, 2255 Glades Road, Suite 421A, Boca Raton,
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It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – The Florida Probate Rules Committee
Matthew Henry Triggs, Chair, Probate Rules Committee, Proskauer Rose LLP,
Boca Raton, Florida; John F. Harkness, Jr., Executive Director, and Heather
Savage Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
FL 33431-7379, mtriggs@proskauer.com, and on the Bar Staff Liaison to the
Committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-
2300, htelfer@flabar.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 March 7, 2016, 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 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 must be electronically filed via e-mail in
accordance with In re Mandatory Submission of Electronic Copies of Documents,
Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed
documents must be submitted in Microsoft Word 97 or higher. 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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APPENDIX
RULE 5.240. NOTICE OF ADMINISTRATION
(a) Service. The personal representative shall promptly serve a copy of
the notice of administration on the following persons who are known to the
personal representative and who were not previously served under section
733.2123, Florida Statutes:
(1) – (2) [No Change]
(3) a trustee of any trust described in section 733.707(3), Florida
Statutes, and each qualified beneficiary of the trust as defined in section
736.0103(16), Florida Statutes, if each trustee is also a personal representative of
the estate; and
(4) [No Change]
in the manner provided for service of formal notice. The personal representative
may similarly serve a copy of the notice on any devisee under another will or heirs
or others who claim or may claim an interest in the estate.
(b) Contents. The notice shall state:
(1) – (2) [No Change]
(3) that any interested person on whom the notice of administration
is served must file, on or before the date which is 3 months after the date of service
of the notice of administration on that interested person, any objection thatwho
challenges the validity of the will, the qualifications of the personal representative,
the venue, or the jurisdiction of the court 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. The 3-month time period may only be
extended for estoppel based upon a misstatement by the personal representative
regarding the time period within which an objection must be filed. The time period
may not be extended for any other reason, including affirmative representation,
failure to disclose information, or misconduct by the personal representative or any
other person. Unless sooner barred by section 733.212(3), Florida Statutes, all
objections to the validity of a will, venue, or the jurisdiction of the court must be
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filed no later than the earlier of the entry of an order of final discharge of the
personal representative, or 1 year after service of the notice of administration;
(4) – (5) [No Change]
(c) [No Change]
(d) Objections. Objections to the validity of the will shall follow the form
and procedure set forth in these rules pertaining to revocation of probate.
Objections to the qualifications of the personal representative shall follow the form
and procedure set forth in these rules pertaining to removal of a personal
representative. Objections to the venue or jurisdiction of the court shall follow the
form and procedure set forth in the Florida Rules of Civil Procedure.
(e) [No Change]
Committee Notes
Rule History
1977 – 2013 Revisions [No Change]
2015 Revision: Subdivisions (b)(3) and (d) amended to conform to
amendments to section 733.212, Florida Statutes, relating to the removal of the
requirement to object to the qualifications of a personal representative within this
statutory framework due to other statutory amendments. The 2011 Revision
contains a scrivener’s error and it should reference section 733.212, Florida
Statutes, as opposed to section 732.212, Florida Statutes.
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.310. DISQUALIFICATION OF PERSONAL
REPRESENTATIVE; NOTIFICATION
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Any time a personal representative, who was not qualified to act at the time
of appointment, or who would not be qualified for appointment if application for
appointment were then made shall immediately file and serve on all interested
personsknows that he or she would not be qualified for appointment if application
for appointment were then made, the personal representative shall promptly file
and serve on all interested persons a notice describingstating:
(a) the reason the personal representative was not qualified at the time of
appointment; or
(b) the reason(s) the personal representative would not be qualified for
appointment if application for appointment were then made and the date on which
the disqualifying event occurred; and
(b) The personal representative’s notice shall state that any interested
person may file a petition to remove the personal representative within 30 days
after the date on which such notice is served.
Committee Notes
Notification under this rule or section 733.3101(2), Florida Statutes, does not
automatically affect the authority of the personal representative to act. The
personal representative may resign or interested persons or the court must act to
remove the personal representative.
Rule History
1975 – 2002 Revisions [No Change]
2015 Revision: Rule amended to conform to amendment to section
733.3101, Florida Statutes, which modifies the substance and procedure for the
disqualification of a personal representative. Citation revised in committee notes.
Committee notes revised.
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. 5.430 Resignation of personal representative.
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Fla. Prob. R. 5.440 Proceedings for removal.
RULE 5.648. EMERGENCY TEMPORARY GUARDIAN
(a) [No Change]
(b) Notice. Unless the court orders otherwise, nNotice of filing of the
petition for appointment of an emergency temporary guardian and any hearing on
the petition shallmust be served before the hearing on the petition on the alleged
incapacitated person and on the alleged incapacitated person’s attorney at least 24
hours before the hearing on the petition is commenced, unless the petitioner
demonstrates that substantial harm to the alleged incapacitated person would occur
if the 24-hour notice is given.
(c) – (f) [No Change]
Committee Notes
Rule History
2007 Revision: [No Change]
2015 Revision: Amended subdivision (b) to conform to statutory changes in
section 744.3031(2), Florida Statutes. Committee notes revised.
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.695. ANNUAL GUARDIANSHIP REPORTS
(a) Contents and Filing.
(1) Guardian of the Person. Unless the court requires reporting on
a calendar-year basis, the guardian of the person shall file an annual guardianship
plan within 90at least 60 days, but no more than 90 days, afterbefore the last day of
the anniversary month in which the letters of guardianship were issuedsigned. The
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plan shall be formust cover the coming fiscal year, ending on the last day of such
anniversary month. If the court requires reporting on a calendar-year
basisreporting, the guardianship plan shallfor the forthcoming year must be filed
on or before April 1 of each yearafter September 1, but no later than December 1,
of the current year.
(2) [No Change]
(b) [No Change]
Committee Notes
[No Change]
Rule History
1975 – 2012 Revisions [No Change]
2015 Revision: Subdivision (a)(1) amended to conform to statutory changes
in section 744.367(1), Florida Statutes. Committee notes revised.
Statutory References
[No Change]
Rule References
[No Change]
RULE 5.705. PETITION FOR INTERIM JUDICIAL REVIEW
(a) Contents. A petition for interim judicial review shall be verified, state
the petitioner’s interest in the proceeding, state with particularity the manner in
which the guardian’s action or proposed action does not comply with or exceeds
the guardian’s authority under the guardian plan, or state that the guardian is acting
in a manner contrary to section 744.361, Florida Statutes, and state why the action,
or proposed action, or conduct of the guardian is not in the best interest of the
ward.
(b) – (d) [No Change]
Committee Notes
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Rule History
1991 – 2008 Revisions [No Change]
2015 Revision: Subdivision (a) amended to conform to changes in sections
744.361 and 744.3715, Florida Statutes. Citation revised in committee notes.
Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 744.361, Fla. Stat. Powers and duties of guardian.
§ 744.3715, Fla. Stat. Petition for interim judicial review.
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