Florida Probate Rules
Florida Probate Rules
Florida Probate Rules
PROBATE RULES
2009 Edition
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CITATIONS TO OPINIONS ADOPTING OR
AMENDING RULES
OTHER OPINIONS:
Effective 1-1-76: 324 So.2d 38. Complete revision (temporary rules).
Effective 7-1-77: 344 So.2d 828. Complete revision.
Effective 1-1-81: 387 So.2d 949. Four-year-cycle revision. Amended 5.020, 5.040, 5.340, 5.345, 5.400,
5.440, 5.520, 5.540, 5.550, 5.560, 5.570, 5.630, 5.660, 5.690; added
5.205.
Effective 1-1-85: 458 So.2d 1079. Four-year-cycle revision. Amended 5.020–5.040, 5.080, 5.110, 5.150,
5.170, 5.180, 5.210, 5.230, 5.240–5.270, 5.340–5.420, 5.440, 5.460–
5.490, 5.510–5.560, 5.600, 5.620, 5.660, 5.670; deleted 5.280, 5.290,
5.410, 5.450, 5.500, 5.570; added 5.041, 5.042, 5.065, 5.395, 5.401,
5.405, 5.406.
Effective 1-1-85: 460 So.2d 906. Amended 5.340.
Effective 12-23-87: 517 So.2d 675. Amended 5.540, 5.560; added 5.710.
Effective 1-1-89: 531 So.2d 1261. Four-year-cycle revision. Amended 5.015, 5.025, 5.042, 5.050, 5.080,
5.110, 5.160, 5.180, 5.205–5.240, 5.270, 5.340, 5.360, 5.400, 5.405–
5.420, 5.440, 5.490, 5.510, 5.620, 5.630, 5.650–5.670, 5.690; deleted
5.190, 5.390, 5.540, 5.590; added 5.122, 5.171, 5.201, 5.235, 5.275,
5.346, 5.355, 5.385, 5.386, 5.475, 5.495.
Effective 10-1-89: 551 So.2d 452. Amended 5.015, 5.550, 5.560, 5.610–5.660, 5.680–5.700; added 5.590,
5.800.
Effective 10-1-91: 584 So.2d 964. Amended 5.010, 5.040, 5.050, 5.240, 5.550, 5.560, 5.590–5.630, 5.650–
5.680, 5.700–5.800; amended and renumbered 5.690 to 5.695; deleted
5.495; added 5.540, 5.541, 5.555, 5.635, 5.690, 5.696, 5.697, 5.705,
5.900.
Effective 1-1-93: 607 So.2d 1306. Four-year-cycle revision. Amended 5.025, 5.120, 5.200, 5.240, 5.260,
5.310, 5.346, 5.400, 5.470, 5.690, 5.695, 5.900; added 5.496, 5.636.
Effective 1-1-97: 683 So.2d 78. Four-year-cycle revision. Amended 5.040, 5.041, 5.080, 5.100, 5.180,
5.210, 5.235, 5.240, 5.346, 5.370, 5.400, 5.401, 5.405, 5.406, 5.470,
5.560, 5.590, 5.680.
Effective 1-1-01: 778 So.2d 272. Four-year-cycle revision. Amended 5.015, 5.040, 5.041, 5.065, 5.100,
5.110, 5.555, 5.560, 5.705.
Effective 10-11-01: 807 So.2d 622,
816 So.2d 1095. Amended 5.025, 5.340, 5.360; added 5.365.
Effective 5-2-02,
applicable to decedents
dying after
December 31, 2001: 824 So.2d 849. Amended 5.080, 5.200, 5.205, 5.210, 5.240, 5.310, 5.340, 5.345, 5.346,
5.385, 5.405, 5.440, 5.510, 5.530; deleted 5.070, 5.520; added 5.215,
5.216, 5.241, 5.341, 5.404.
Effective 6-19-03,
applicable to decedents
dying after
December 31, 2001: 848 So.2d 1069. Two-year-cycle revision. Amended 5.122, 5.205, 5.240, 5.385, 5.430,
5.496; added 5.342.
Effective 1-1-04: 848 So.2d 1069. Two-year-cycle revision. Amended 5.555, 5.680; added 5.407, 5.552.
Effective 10-1-04: 887 So.2d 1090. Amended 5.697.
3
Effective 1-1-06: 912 So.2d 1178. Two-year-cycle revision. Amended 5.040, 5.041, 5.042, 5.240, 5.241,
5.270, 5.345, 5.346, 5.360, 5.400, 5.404, 5.475, 5.496, 5.530, 5.620;
added 5.402, 5.403, 5.498, 5.499, 5.625.
Effective 2-1-07: 948 So.2d 735. Amended 5.180, 5.550, 5.552, 5.555, 5.560, 5.625, 5.630, 5.636, 5.660,
5.680, 5.695; added 5.646, 5.647, 5.685, 5.720, 5.725.
Effective 7-12-07: 964 So.2d 140. Amended 5.015, 5.240, 5.241; added 5.648.
Effective 1-1-08: 959 So.2d 1170. Three-year-cycle revision. Amended 5.040, 5.041, 5.200, 5.210, 5.241,
5.490, 5.496, 5.498, 5.499, 5.530, 5.650, 5.670, 5.697, 5.710; added
5.095, 5.645.
Effective 7-10-08: 986 So.2d 576. Amended 5.015, 5.030, 5.040, 5.050, 5.120, 5.540, 5.541, 5.620, 5.625,
5.640, 5.650, 5.660, 5.680, 5.720; added 5.649, 5.681.
NOTE TO USERS: Rules in this pamphlet are current through 986 So.2d 576. Subsequent amendments, if any, can
be found at www.floridasupremecourt.org/decisions/rules.shtml. The Florida Bar also updates the rules on its
website at www.FloridaBar.org (on the homepage click “Rules Updates”).
4
FLORIDA PROBATE RULES
PART I — GENERAL
5.010. SCOPE
5.030. ATTORNEYS
5.040. NOTICE
5.042. TIME
5.122. CURATORS
5.170. EVIDENCE
7
PART II — PROBATE
5.340. INVENTORY
8
5.360. ELECTIVE SHARE
5.386. ESCHEAT
9
5.499. FORM AND MANNER OF OBJECTING TO PERSONAL REPRESENTATIVE’S PROOF
OF CLAIM
5.540. HEARINGS
5.600. OATH
5.620. INVENTORY
10
5.649. GUARDIAN ADVOCATE
11
RULE 5.010 FLORIDA PROBATE RULES RULE 5.010
PART I — GENERAL that fact is noted in the relevant committee note. The committee
felt strongly that it would be detrimental to the orderly process of
estate probate and related procedures if a rule specified a different
RULE 5.010. SCOPE procedure than was specified in the related statute, even though the
statute must, under the Florida Constitution, yield to the rule when
These rules govern the procedure in all probate and there is a conflict.
guardianship proceedings and shall be known as the The committee, through the proper channels in The Florida Bar
Florida Probate Rules and may be cited as Fla. Prob. (initially, the Probate Law Committee of the Real Property, Probate
R. Part I applies to all proceedings. Part II applies to and Trust Law Section), intends to ask the legislature to repeal those
probate alone, Part III applies to guardianship alone, portions of the statutes that are procedural when there are similar rules
already in place, or when similar new rules are added by this opinion. It
and Part IV applies to expedited judicial intervention is the opinion of the committee that continuing to maintain procedure
concerning medical treatment procedures. The Florida in the statutes when there is a rule specifying that procedure is detri
Rules of Civil Procedure apply only as provided herein. mental to the orderly process of the court and the public that it serves,
especially when, over time, the statute and the rule may diverge.
Committee Notes
Although the supreme court has adopted these recommended
rules, it has not specifically determined that all of the provisions of
Rule History the statutes that were procedural have now been adopted as a rule.
This is a continuing project for the committee and although these
1975 Revision: These rules shall govern the procedures to be fol new rules and changes represent a substantial transition of procedure
lowed in all matters pending on or commenced after January 1, 1976, into the rules, the committee does not suggest that the transition is
including procedures for the enforcement of substantive rights that complete. The court is not precluded from examining any particular
have vested before that date. See section 731.011, Florida Statutes. statute or rule in the context of a particular actual dispute.
1977 Revision: The changes in these rules shall take effect on July 1991 Revision: Rule revised to reflect addition of new Part IV
1, 1977. dealing with expedited judicial intervention concerning medical
treatment procedures.
1988 Revision: In the opinion reported at 460 So. 2d 906, the
Florida Supreme Court directed the Probate and Guardianship Rules 1992 Revision: In 1989, the Florida Legislature enacted a com
Committee to study the statutes and attempt to identify those por prehensive revision to Florida’s guardianship law. In response, the
tions of the Florida Probate Code, the Florida Guardianship Law, Florida Supreme Court appointed an ad hoc committee to recom
and other statutes that contained procedural provisions. When those mend temporary rules of procedure for the new law. In an opinion
procedural provisions were identified, the committee was charged to at 551 So. 2d 452 (Fla. 1989), the court adopted the temporary rules
promulgate rules incorporating those procedures. recommended by the ad hoc committee, to replace Part III of the
then-existing Florida Probate Rules, effective October 1, 1989. In its
The committee has reviewed the statutes and has found a sub opinion, the court also directed the Florida Probate Rules Committee
stantial measure of procedure that was contained only in the statutes to review the new laws and, on a priority basis, to recommend per
for which there were no corresponding rules. The committee also manent rules of procedure.
determined that much of the procedure in the statutes already had a
rule counterpart. The committee reviewed the Florida Guardianship Law enacted
in 1989, as well as revisions to the law enacted in 1990, and pre
sented its rule recommendations to the court in 1991. The court, in an
New rules added, or prior rules amended, in 1988 to add procedural
opinion at 584 So. 2d 964, adopted the recommendations with minor
matters previously found only in the statutes are rules 5.050, 5.122,
exceptions, to be effective October 1, 1991.
5.171, 5.180, 5.201, 5.235, 5.270, 5.275, 5.355, 5.360, 5.385, 5.386,
5.400, 5.440, 5.475, 5.490, and 5.510. With only one exception (see In 1990, the court also rendered its opinion in In re Guardianship
rule 5.050), the only portion of the statutes that has been reviewed in of Browning, 568 So. 2d 4 (Fla. 1990), regarding a person’s right to
detail, and for which rules have been created, is the Florida Probate refuse life-prolonging medical procedures. In that decision, the court
Code. Other portions of the statutes mentioned in the opinion cited directed the committee to recommend a rule to provide for expedited
above remain for the next cycle of this committee to review. judicial intervention. In response, the committee created a new Part
IV of these rules and recommended rule 5.900, which was adopted
As the committee wrote rules to transfer the statutory procedure by the court, with minor changes, in its opinion at 584 So. 2d 964,
into these rules, an attempt was made to write the rule without effective October 1, 1991.
changing the meaning of the statute. It was not possible or advis
able to use the exact wording of the statute in some instances, and in The committee continued its efforts to review the Florida Probate
those instances the committee rewrote the statutory language in the Code and to promulgate or amend rules regarding any procedural
format used in the rules generally. Even under those circumstances, portions of those statutes. As a result of those efforts, as well as the
the committee attempted to transfer the entire procedural portion of efforts described above, the committee recommended amendments
the statute without changing its meaning. Where it was specifically to rules 5.010, 5.025, 5.040, 5.050, 5.200, 5.240, 5.310, 5.346, 5.400,
intended in a few instances to add to existing statutory procedure, 5.470, 5.550, 5.560, 5.590, 5.600, 5.610, 5.620, 5.630, 5.640, 5.650,
RULE 5.010 FLORIDA PROBATE RULES RULE 5.020
5.660, 5.670, 5.680, 5.695, 5.700, 5.710, and 5.800; creation of new (7) “ward” means an individual for whom a guard
rules 5.496, 5.540, 5.541, 5.555, 5.635, 5.636, 5.690, 5.696, 5.697, ian is appointed.
5.705, and 5.900; and deletion of rule 5.495. In addition, the commit
tee recommended editorial changes in virtually all the rules so that
Committee Notes
they would conform stylistically to one another and to all other rules
promulgated by the supreme court.
Rule History
2003 Revision: The committee has promulgated numerous chang
es in the rules and in the committee notes to many of the rules, in 1977 Revision: No change in rule. Correction of typographical
response to legislative amendments that deleted procedural aspects error in committee note.
of a number of statutes in the Florida Probate Code, including dele
tion and re-titling of some statutes. See Ch. 2001-226, Laws of Fla. 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
Rule References §§ 731.201 and 744.102, Fla. Stat.
Fla. Prob. R. 5.025 Adversary proceedings. 1988 Revision: Rule was expanded due to deletion of rule 5.190.
Fla. Prob. R. 5.040(a)(3)(B) Notice. Committee notes expanded. Citation form changes in rule and com
Fla. Prob. R. 5.050 Transfer of proceedings. mittee notes.
Fla. Prob. R. 5.080 Discovery and subpoena.
Fla. Prob. R. 5.230(e) Commission to prove will. 1992 Revision: Citation form changes in rule and committee notes.
Fla. R. App. P. 9.800 Uniform citation system.
2000 Revision: Subdivision (b)(2) amended to delete outdated
reference to rule 5.550(c).
RULE 5.015. GENERAL DEFINITIONS
2007 Revision: Subdivision (a) amended to add reference to chap
ter 736, Florida Statutes, which was added to the statutes effective
(a) General. The definitions and rules of construc July 1, 2007 and which replaces deleted chapter 737, and to add ref
tion stated or referred to in sections 1.01 and 393.12, erence to chapter 739, Florida Statutes, which was added effective
Florida Statutes, and chapters 731, 732, 733, 734, 735, July 1, 2005. Committee notes revised.
736, 738, 739, and 744, Florida Statutes, as amended
2008 Revision: Subdivision (a) amended to add reference to sec
from time to time, shall apply to these rules, unless
tion 393.12, Florida Statutes, which governs guardian advocates
otherwise defined in these rules. for persons with developmental disabilities. As provided by section
744.102(11), the term “guardian advocate” as used in the Florida
(b) Specific Definitions. When used in these rules Guardianship Law and these rules does not include a guardian ad
vocate appointed for a person determined to lack capacity to consent
to treatment under section 394.4598, Florida Statutes. Subdivisions
(1) “certified copy” means a copy of a document (b)(5) through (b)(7) added to reflect 2008 amendments to section
signed and verified as a true copy by the officer to 393.12, Florida Statutes. Committee notes revised.
whose custody the original is entrusted;
Statutory References
(2) “formal notice” means notice under rule 5.040(a); § 1.01, Fla. Stat. Definitions.
§ 393.063, Fla. Stat. Definitions.
(3) “informal notice” means notice under rule 5.040(b); § 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 731.201, Fla. Stat. General definitions.
§ 736.0103, Fla. Stat. Definitions.
(4) “judge” means a judge of the circuit court, § 738.102, Fla. Stat. Definitions.
including any judge elected, appointed, substituted, or § 739.102, Fla. Stat. Definitions.
assigned to serve as judge of the court; § 744.102, Fla. Stat. Definitions.
(5) “guardian advocate” means a person appointed RULE 5.020. PLEADINGS; VERIFICATION;
for a person with a developmental disability pursuant MOTIONS
to section 393.12, Florida Statutes;
(a) Forms of Pleading. Pleadings shall be signed
(6) “guardian” means a person appointed pursuant by the attorney of record, and by the pleader when re
to chapter 744, Florida Statutes, or a guardian advocate quired by these rules. All technical forms of pleadings
unless a rule indicates otherwise; are abolished. No defect of form impairs substantial
RULE 5.020 FLORIDA PROBATE RULES RULE 5.025
rights, and no defect in the statement of jurisdictional 2003 Revision: Committee notes revised.
facts actually existing renders any proceeding void.
2008 Revision: Committee notes revised.
(b) Petition. A petition shall contain a short and plain Statutory References
statement of the relief sought, the grounds therefor, and
the jurisdiction of the court where the jurisdiction has § 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
not already been shown. § 731.104, Fla. Stat. Verification of documents.
§ 731.201, Fla. Stat. General definitions.
§ 733.202, Fla. Stat. Petition.
(c) Motions. Any other application to the court for § 733.604(1), Fla. Stat. Inventory.
an order shall be by written motion, unless made orally § 733.901, Fla. Stat. Final discharge.
during a hearing or trial. The motion shall state with § 735.203, Fla. Stat. Petition for summary administration.
particularity the grounds therefor and shall set forth the § 744.104, Fla. Stat. Verification of documents.
relief or order sought. § 744.3085, Fla. Stat. Guardian advocates.
§ 744.3201, Fla. Stat. Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
(d) Rehearing. A motion for rehearing of any order § 744.334, Fla. Stat. Petition for appointment of guardian or
or judgment shall be served not later than 10 days after professional guardian; contents.
the date of filing the order or judgment with the clerk
as shown on the face of the order or judgment. Rule References
Rule History
RULE 5.025. ADVERSARY PROCEEDINGS
1977 Revision: Editorial change (rule) and expansion of committee
note. Subdivisions (a), (b), and (d) substantially the same as subdivi (a) Specific Adversary Proceedings. The following
sions (a), (b), and (f) of prior rule 5.030. Subdivision (c) taken from
section 731.104, Florida Statutes. For adversary proceedings see new shall be adversary proceedings unless otherwise or
rule 5.025. Notice of administration is not a pleading within the mean dered by the court: proceedings to remove a personal
ing of this rule. representative, surcharge a personal representative, re
move a guardian, surcharge a guardian, probate a lost
1980 Revision: Subdivisions (c) and (d) have been redesignated as
(e) and (f). New subdivisions (c) and (d) are added to provide for the or destroyed will or later-discovered will, determine
use of motions in probate proceedings other than adversary proceed beneficiaries, construe a will, cancel a devise, partition
ings and to specifically authorize a procedure for rehearing. property for the purposes of distribution, determine pre
termitted share, determine amount of elective share and
1984 Revision: Minor editorial changes. Subdivision (f) of prior
rule has been deleted as it is now covered under the adversary rules. contribution, and for revocation of probate of a will.
1988 Revision: Editorial change in caption of (a). Committee (b) Declared Adversary Proceedings. Other pro
notes revised. Citation form change in committee notes.
ceedings may be declared adversary by service on
1992 Revision: Editorial changes. Committee notes revised. Citation interested persons of a separate declaration that the
form changes in rule and committee notes. proceeding is adversary.
RULE 5.025 FLORIDA PROBATE RULES RULE 5.025
(1) If served by the petitioner, the declaration shall interested person in all adversary proceedings. A prescribed form for
be served with the petition to which it relates. 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:
(2) If served by the respondent, the declaration
and a written response to the petition shall be served at Court
the earlier of:
Case #
)
(A) within 20 days after service of the petition, or In Re Estate of John B. Jones )
)
(B) prior to the hearing date on the petition. Julia Jones, )
)
Petitioner, )
(3) When the declaration is served by a respon )
dent, the petitioner shall promptly serve formal notice v. )
on all other interested persons. )
Harold Jones, as Personal )
Representative, et al., )
(c) Adversary Status by Order. The court may de )
termine any proceeding to be an adversary proceeding Respondents. )
at any time.
Rule History
(d) Notice and Procedure in Adversary Proceedings.
1975 Revision: New rule. 324 So. 2d 38.
(1) Petitioner shall serve formal notice.
1977 Revision: Editorial changes to (a)(1).
(2) After service of formal notice, the proceedings,
1984 Revision: Extensive changes, committee notes revised and
as nearly as practicable, shall be conducted similar to expanded.
suits of a civil nature and the Florida Rules of Civil
Procedure shall govern, including entry of defaults. 1988 Revision: Changes in (a) add proceedings to remove a
guardian and to surcharge a guardian to the list of specific adver
sary proceedings and delete proceedings to determine and award the
(3) The court on its motion or on motion of any in elective share from the list. Change in (b)(4) clarifies on whom the
terested person may enter orders to avoid undue delay petitioner must serve formal notice. Editorial change in (d)(2) and
in the main administration. (d)(5). Committee notes revised. Citation form changes in committee
notes.
(4) If a proceeding is already commenced when an
1992 Revision: Deletion of (b)(3) as unnecessary. Former (b)(4)
order is entered determining the proceeding to be ad renumbered as new (b)(3). Committee notes revised. Citation form
versary, it shall thereafter be conducted as an adversary changes in committee notes.
proceeding. The order shall require interested persons
to serve written defenses, if any, within 20 days from 2001 Revision: Change in (a) to add determination of amount of
elective share and contribution as specific adversary proceedings.
the date of the order. It shall not be necessary to re- Committee notes revised.
serve the petition except as ordered by the court.
2003 Revision: Committee notes revised.
(5) When the proceedings are adversary, the cap
2008 Revision: Committee notes revised.
tion of subsequent pleadings, as an extension of the
probate caption, shall include the name of the first Statutory References
petitioner and the name of the first respondent.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
Committee Notes §§ 732.201–732.2155, Fla. Stat. Elective share of surviving spouse.
§ 732.301, Fla. Stat. Pretermitted spouse.
The court on its initiative or on motion of any party may order § 732.302, Fla. Stat. Pretermitted children.
any proceeding to be adversary or nonadversary or enter any order § 732.507, Fla. Stat. Effect of subsequent marriage, birth, adoption,
that will avoid undue delay. The personal representative would be an or dissolution of marriage.
RULE 5.025 FLORIDA PROBATE RULES RULE 5.030
§§ 732.6005–732.611, Fla. Stat. Rules of construction. these rules shall be the attorney of record in all other
§ 733.105, Fla. Stat. Determination of beneficiaries.
proceedings in the administration of the same estate or
§ 733.107, Fla. Stat. Burden of proof in contests; presumption of
undue influence. guardianship, except service of process in an indepen
§ 733.109, Fla. Stat. Revocation of probate. dent action on a claim, unless
§ 733.207, Fla. Stat. Establishment and probate of lost or destroyed
will.
§ 733.208, Fla. Stat. Discovery of later will.
(1) at the time of appearance the attorney files a
§ 733.504, Fla. Stat. Removal of personal representative; causes notice specifically limiting the attorney’s appearance
for removal. only to the particular proceeding or matter in which the
§ 733.505, Fla. Stat. Jurisdiction in removal proceedings. attorney appears, or
§ 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 (2) the court orders otherwise.
court order.
§ 733.609, Fla. Stat. Improper exercise of power; breach of fiduciary
duty.
(c) Withdrawal or Limiting Appearance. An at
§ 733.619(2), (4), Fla. Stat. Individual liability of personal repre torney of record may withdraw or limit the attorney’s
sentative. appearance with approval of the court, after filing a
§ 733.814, Fla. Stat. Partition for purpose of distribution. motion setting forth the reasons and serving a copy on
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.474, Fla. Stat. Reasons for removal of guardian. the client and interested persons.
§ 744.477, Fla. Stat. Proceedings for removal of a guardian.
Committee Notes
Rule References
The appearance of an attorney in an estate is a general appearance
Fla. Prob. R. 5.040 Notice. unless (i) specifically limited at the time of such appearance or (ii)
Fla. Prob. R. 5.270 Revocation of probate. the court orders otherwise. This rule does not affect the right of a
Fla. Prob. R. 5.360 Elective share. party to employ additional attorneys who, if members of The Florida
Fla. Prob. R. 5.365 Petition for dower. Bar, may appear at any time.
Fla. Prob. R. 5.440 Proceedings for removal.
Fla. Prob. R. 5.649 Guardian advocate. Rule History
Fla. Prob. R. 5.660 Proceedings for removal of guardian.
Fla. Prob. R. 5.681 Restoration of rights of person with develop 1975 Revision: Subdivision (a) is same as prior rule 5.040 with
mental disability. added provision for withdrawal of attorney similar to Florida Rule of
Fla. R. Civ. P. 1.140 Defenses. Appellate Procedure 2.3(d)(2). Subdivision (b) reflects ruling in case
Fla. R. Civ. P. 1.160 Motions. of State ex rel. Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974).
Fla. R. Civ. P. 1.200 Pretrial procedure.
Fla. R. Civ. P. 1.280 General provisions governing discovery. 1977 Revision: Editorial change requiring filing of petition for with
Fla. R. Civ. P. 1.290 Depositions before action or pending appeal. drawal and service of copy upon interested persons. Editorial change
Fla. R. Civ. P. 1.310 Depositions upon oral examination. in citation forms in rule and committee note.
Fla. R. Civ. P. 1.340 Interrogatories to parties.
Fla. R. Civ. P. 1.380 Failure to make discovery; sanctions.
1984 Revision: Minor editorial changes and addition of subdivision
(c). Committee notes expanded.
RULE 5.030. ATTORNEYS
1988 Revision: Editorial changes and order of subdivisions rear
ranged. Committee notes expanded. Citation form changes in com
(a) Required; Exception. Every guardian and every
mittee notes.
personal representative, unless the personal representative
remains the sole interested person, shall be represented 1992 Revision: Editorial changes. Committee notes revised.
by an attorney admitted to practice in Florida. A guard Citation form changes in committee notes.
ian or personal representative who is an attorney admitted
2003 Revision: Committee notes revised.
to practice in Florida may represent himself or herself as
guardian or personal representative. A guardian advocate 2005 Revision: Committee notes revised.
is not required to be represented by an attorney unless
otherwise required by law or the court. 2006 Revision: Committee notes revised.
(2) After service of formal notice, informal no (C) as otherwise provided by Florida law for
tice of any hearing on the pleading or motion shall be service of process.
served on interested persons, provided that if no writ
ten defense is served within 20 days after service of (4) Service of formal notice pursuant to subdivi
formal notice on an interested person, the pleading or sion (3)(A) shall be complete on receipt of the notice.
Proof of service shall be by verified statement of the
motion may be considered ex parte as to that person,
person giving the notice; and there shall be attached to
unless the court orders otherwise.
the verified statement the signed receipt or other evi
dence satisfactory to the court that delivery was made
(3) Formal notice shall be served: to the addressee or the addressee’s agent.
(A) by sending a copy by any commercial de (5) If service of process is made pursuant to Florida
livery service requiring a signed receipt or by any form law, proof of service shall be made as provided therein.
of mail requiring a signed receipt as follows:
(b) Informal Notice. When informal notice of a
(i) to the attorney representing an interested petition or other proceeding is required or permitted, it
person; or shall be served as provided in rule 5.041(b).
RULE 5.040 FLORIDA PROBATE RULES RULE 5.040
(c) “Notice” Defined. In these rules, the Florida 2003 Revision: Committee notes revised.
Probate Code, and the Florida Guardianship Law “no
2005 Revision: Subdivision (a)(3)(A) amended to delete require
tice” shall mean informal notice unless formal notice is ment of court approval of commercial delivery service.
specified.
2006 Revision: Committee notes revised.
(d) Formal Notice Optional. Formal notice may
2007 Revision: Committee notes revised.
be given in lieu of informal notice at the option of the
person giving notice unless the court orders otherwise. 2007 Revision: New subdivision (a)(3)(A)(iv) inserted in response
When formal notice is given in lieu of informal notice, to Cason ex rel. Saferight v. Hammock, 908 So.2d 512 (Fla. 5th
DCA 2005), and subsequent subdivisions renumbered accordingly.
formal notice shall be given to all interested persons
Committee notes revised.
entitled to notice.
2008 Revision: Subdivision (a)(3)(A)(iii) revised to include “per
Committee Notes son with a developmental disability.” Committee notes revised.
Formal notice is the method of service used in probate proceed Statutory References
ings and the method of service of process for obtaining jurisdiction
over the person receiving the notice. § 1.01(3), Fla. Stat. Definitions.
ch. 48, Fla. Stat. Process and service of process.
Informal notice is the method of service of notice given to interested ch. 49, Fla. Stat. Constructive service of process.
persons entitled to notice when formal notice is not given or required. § 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 731.105, Fla. Stat. In rem proceeding.
Reference in this rule to the terms “mail” or “mailing” refers to § 731.201(18), (22), Fla. Stat. General definitions.
use of the United States Postal Service. § 731.301, Fla. Stat. Notice.
§ 731.302, Fla. Stat. Waiver and consent by interested person.
Rule History § 733.212, Fla. Stat. Notice of administration; filing of objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
1975 Revision: Implements section 731.301, Florida Statutes. § 733.502, Fla. Stat. Resignation of personal representative.
§ 733.613, Fla. Stat. Personal representative’s right to sell real
1977 Revision: Reference to elisor. property.
§ 733.6175, Fla. Stat. Proceedings for review of employment of
1980 Revision: Editorial changes. Clarification of time for fil agents and compensation of personal representatives and employees
ing defenses after formal notice. Authorizes court to give relief to of estate.
delinquent respondent from ex parte status; relief from service on § 733.901, Fla. Stat. Final discharge.
numerous persons; allows optional use of formal notice. ch. 743, Fla. Stat. Disability of nonage of minors removed.
§ 744.106, Fla. Stat. Notice.
1984 Revision: Editorial changes. Eliminates deadline for filing as § 744.301, Fla. Stat. Natural guardians.
opposed to serving defenses after formal notice; defines procedure § 744.3085, Fla. Stat. Guardian advocates.
subsequent to service of defenses after formal notice; new require § 744.3201, Fla. Stat. Petition to determine incapacity.
ments for service of formal notice on incompetents and corporations; § 744.331, Fla. Stat. Procedures to determine incapacity.
defines when service of formal notice is deemed complete; provi § 744.3371, Fla. Stat. Notice of petition for appointment of guard
sions relating to method of service of informal notice transferred to ian and hearing.
new rules 5.041 and 5.042; eliminates waiver of notice by will. § 744.441, Fla. Stat. Powers of guardian upon court approval.
§ 744.447, Fla. Stat. Petition for authorization to act.
1988 Revision: Editorial changes. Committee notes revised. § 744.477, Fla. Stat. Proceedings for removal of a guardian.
Citation form changes in committee notes.
Rule References
1991 Revision: Subdivision (b) amended to define informal notice
more clearly. Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.030 Attorneys.
1992 Revision: Editorial changes. Committee notes revised. Citation Fla. Prob. R. 5.041 Service of pleadings and papers.
form changes in committee notes. Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.060 Request for notices and copies of pleadings.
1996 Revision: Subdivision (a) amended to permit service of formal Fla. Prob. R. 5.180 Waiver and consent.
notice by commercial delivery service to conform to 1993 amendment Fla. Prob. R. 5.560 Petition for appointment of guardian of an
to section 731.301(1), Florida Statutes. Editorial changes. incapacitated person.
Fla. Prob. R. 5.649 Guardian advocate.
2001 Revision: Editorial changes in subdivision (a)(3)(A) to Fla. Prob. R. 5.681 Restoration of rights of person with develop
clarify requirements for service of formal notice. mental disability.
RULE 5.040 FLORIDA PROBATE RULES RULE 5.041
Fla. R. Jud. Admin. 2.505 Attorneys. (4) if the office is closed or the person to be served
Fla. R. Civ. P. 1.070 Process. has no office, leaving it at the person’s usual place of
Fla. R. Civ. P. Form 1.902 Summons.
abode with some person of his or her family above 15
years of age and informing that person of the contents; or
RULE 5.041. SERVICE OF PLEADINGS AND
PAPERS
(5) transmitting it by facsimile to the attorney’s or in
terested person’s office with a cover sheet containing the
(a) Service; When Required. Unless the court or
sender’s name, firm, address, telephone number, facsim
ders otherwise, every petition or motion for an order de
ile number, and the number of pages transmitted. When
termining rights of an interested person, and every other
delivery is made by facsimile, a copy shall also be served
pleading or paper filed in the particular proceeding which
by any other method permitted by this rule. Facsimile
is the subject matter of such petition or motion, except
delivery occurs when transmission is complete.
applications for witness subpoenas, shall be served on
interested persons unless these rules, the Florida Probate
Code, or the Florida Guardianship Law provides oth Service by delivery after 4:00 p.m. shall be deemed to
erwise. No service need be made on interested persons have been made on the next day that is not a Saturday,
against whom a default has been entered, or against Sunday, or legal holiday.
whom the matter may otherwise proceed ex parte, unless
a new or additional right or demand is asserted. (c) Service; Numerous Interested Persons. In
proceedings when the interested persons are unusually
(b) Service; How Made. When service is required numerous, the court may regulate the service contem
or permitted to be made on an interested person rep plated by these rules on motion or on its initiative in a
resented by an attorney, service shall be made on the manner as may be found to be just and reasonable.
attorney unless service on the interested person is or
dered by the court. Except when serving formal notice, (d) Filing. All original papers shall be filed either
or when serving a motion, pleading, or other paper before service or immediately thereafter. If the original
in the manner provided for service of formal notice, of any bond or other paper is not placed in the court
service shall be made by delivering or mailing a copy file, a certified copy shall be so placed by the clerk.
of the motion, pleading, or other paper to the attorney
or interested person at the last known address or, if no (e) Filing With Court Defined. The filing of papers
address is known, leaving it with the clerk of the court. with the court as required by these rules shall be made
If the interested person is a minor whose disabilities of by filing them with the clerk, except that the judge may
nonage are not removed, and who is not represented by permit the papers to be filed with the judge in which
an attorney, then service shall be on the persons des event the judge shall note the filing date and transmit
ignated to accept service of process on a minor under the papers to the clerk. The date of filing is that shown
chapter 48, Florida Statutes. Service by mail shall be on the face of each paper by the judge’s notation or the
complete upon mailing except when serving formal clerk’s time stamp, whichever is earlier.
notice or when making service in the manner of for
mal notice. Delivery of a copy within this rule shall be (f) Certificate of Service. When any attorney shall
complete upon certify in substance:
(1) handing it to the attorney or to the interested “I certify that a copy hereof has been served on
person; or (here insert name or names) by (delivery) (mail)
(fax) on (date).
(2) leaving it at the attorney’s or interested per
son’s office with a clerk or other person in charge Attorney”
thereof; or
the certificate shall be taken as prima facie proof of
(3) if there is no one in charge, leaving it in a con service in compliance with these rules except in case of
spicuous place therein; or formal notice or service in the manner of formal notice.
RULE 5.041 FLORIDA PROBATE RULES RULE 5.042
A person not represented by an attorney shall certify in ch. 48, Fla. Stat. Process and service of process.
the same manner, but the certificate must be verified. ch. 61, Fla. Stat. Dissolution of marriage; support; custody.
ch. 63, Fla. Stat. Adoption.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
(g) Service of Orders. § 731.201, Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
(1) A copy of all orders or judgments determining § 733.212, Fla. Stat. Notice of administration; filing of objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
rights of an interested person shall be transmitted by § 733.705(2), (4), Fla. Stat. Payment of and objection to claims.
the court or under its direction at the time of entry of ch. 743, Fla. Stat. Disability of nonage of minors removed.
the order or judgment to all interested persons in the § 744.3085, Fla. Stat. Guardian advocates.
particular proceeding. § 744.3201, Fla. Stat. Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian
(2) This subdivision (g) is directory, and a failure and hearing.
to comply with it does not affect the order or judgment § 744.447, Fla. Stat. Petition for authorization to act.
or its finality. ch. 751, Fla. Stat. Temporary custody of minor children by extended
family.
Committee Notes
Rule References
Derived from Florida Rule of Civil Procedure 1.080. Regulates
Fla. Prob. R. 5.020 Pleadings; verification; motions.
the service of pleadings and papers in proceedings on petitions or
Fla. Prob. R. 5.025 Adversary proceedings.
motions for determination of rights. It is not applicable to every
Fla. Prob. R. 5.030 Attorneys.
pleading and paper served or filed in the administration of a guard
Fla. Prob. R. 5.040 Notice.
ianship or decedent’s estate.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.150(c) Order requiring accounting.
Rule History
Fla. Prob. R. 5.180 Waiver and consent.
1984 Revision: New rule. Subdivision (c) is same as former rule Fla. Prob. R. 5.240(a) Notice of administration.
5.040(d). Fla. Prob. R. 5.340(d) Inventory.
Fla. Prob. R. 5.550 Petition to determine incapacity.
1988 Revision: Committee notes revised. Citation form changes Fla. Prob. R. 5.560 Petition for appointment of guardian of an
in committee notes. incapacitated person.
Fla. Prob. R. 5.649 Guardian advocate.
1992 Revision: Editorial changes. Committee notes revised. Fla. Prob. R. 5.681 Restoration of rights of person with develop
Citation form changes in committee notes. mental disability.
Fla. R. Civ. P. 1.080 Service of pleadings and papers.
1996 Revision: Subdivision (b) amended to allow service to be Fla. R. Jud. Admin. 2.505 Attorneys.
made by facsimile. Committee notes revised.
RULE 5.042. TIME
2000 Revision: Subdivision (b) amended to clarify requirements
for service of pleadings and papers. Subdivision (e) amended to
clarify date of filing. Editorial changes in subdivision (f). (a) Computation. In computing any period of time
prescribed or allowed by these rules, by order of court,
2003 Revision: Committee notes revised. or by any applicable statute, the day of the act, event,
or default from which the period begins to run shall
2005 Revision: Changes in subdivisions (b) and (f) to clarify ser
vice requirements, and editorial changes in (e). not be included. The last day of the period shall be in
cluded unless it is a Saturday, Sunday, or legal holiday,
2006 Revision: Committee notes revised. in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday, nor legal
2007 Revision: Provisions regarding service on a minor added in
subdivision (b) in response to Cason ex rel. Saferight v. Hammock,
holiday. When the period is less than 7 days, interme
908 So.2d 512 (Fla. 5th DCA 2005). Committee notes revised. diate Saturdays, Sundays, and legal holidays shall be
excluded. Any day the clerk’s office is closed shall be
2008 Revision: Committee notes revised. deemed a legal holiday for purposes of this rule.
Statutory References
(b) Enlargement. When an act is required or al
ch. 39, Fla. Stat. Proceedings relating to children. lowed to be done at or within a specified time by these
RULE 5.042 FLORIDA PROBATE RULES RULE 5.050
rules, by order of court, or by notice given thereunder, 2003 Revision: Committee notes revised.
for cause shown the court at any time in its discretion
2005 Revision: Subdivision (d) amended to clarify exception to
mailing rule for service of formal notice and service in the manner
(1) with or without notice may order the period provided for service of formal notice. Committee notes revised.
enlarged if request therefor is made before the expira
tion of the period originally prescribed or as extended 2008 Revision: Committee notes revised.
by a previous order, or Statutory References
(2) on motion made and notice after the expiration § 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
of the specified period may permit the act to be done § 683.01, Fla. Stat. Legal holidays.
§ 731.301, Fla. Stat. Notice.
when failure to act was the result of excusable neglect. § 732.107, Fla. Stat. Escheat.
The court under this rule may not extend the time for § 732.2135, Fla. Stat. Time of election; extensions; withdrawal.
serving a motion for rehearing or to enlarge any period § 732.402, Fla. Stat. Exempt property.
of time governed by the Florida Rules of Appellate § 732.901, Fla. Stat. Production of wills.
§ 733.104, Fla. Stat. Suspension of statutes of limitation in favor
Procedure. of the personal representative.
§ 733.212, Fla. Stat. Notice of administration; filing of
(c) Service for Hearings. A copy of any written objections.
petition or motion which may not be heard ex parte § 733.2121, Fla. Stat. Notice to creditors; filing of claims.
§ 733.701, Fla. Stat. Notifying creditors.
and a copy of the notice of the hearing thereon shall be § 733.702, Fla. Stat. Limitations on presentation of claims.
served a reasonable time before the time specified for § 733.705, Fla. Stat. Payment of and objection to claims.
the hearing. § 733.710, Fla. Stat. Limitations on claims against estates.
§ 733.816, Fla. Stat. Disposition of unclaimed property held by
personal representatives.
(d) Additional Time After Service by Mail. Except § 744.3085, Fla. Stat. Guardian advocates.
when serving formal notice, or when serving a motion,
pleading, or other paper in the manner provided for Rule References
service of formal notice, when an interested person
Fla. Prob. R. 5.040(a)(1) Notice.
has the right or is required to act within a prescribed Fla. Prob. R. 5.150 Order requiring accounting.
period after the service of notice or other paper on the Fla. Prob. R. 5.240 Notice of administration.
interested person and the notice or paper is served by Fla. Prob. R. 5.241 Notice to creditors.
mail, 5 days shall be added to the prescribed period. Fla. Prob. R. 5.340(a)–(b) Inventory.
Fla. Prob. R. 5.345 Accountings other than personal representatives’
final accountings.
Committee Notes Fla. Prob. R. 5.395 Notice of federal estate tax return.
Fla. Prob. R. 5.400 Distribution and discharge.
This rule is derived from Florida Rule of Civil Procedure 1.090. Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.681 Restoration of rights of person with develop
Rule History mental disability.
Fla. Prob. R. 5.700 Objection to guardianship reports.
1984 Revision: New rule. Fla. R. Civ. P. 1.090 Time.
1992 Revision: Editorial changes. Committee notes revised. (b) Change of Residence of Ward. When the
Citation form changes in committee notes. residence of a ward is changed to another county, the
RULE 5.050 FLORIDA PROBATE RULES RULE 5.065
guardian of the person or the guardian advocate shall and post office address. When such person’s residence
have the venue of the guardianship changed to the or post office address changes, a new designation of
county of the acquired residence. such change shall be filed in the proceedings. A person
filing such request, or address change, shall also deliver
Committee Notes a copy thereof to the clerk, who shall forthwith mail it to
Subdivision (b) of this rule represents a rule implementation of the
the attorney for the personal representative or guardian,
procedure found in section 744.202(3), Florida Statutes. noting on the original the fact of mailing.
Rule History (b) Notice and Copies. A party filing a request shall
1975 Revision: Same as section 733.101(3), Florida Statutes.
be served thereafter by the moving party with notice
of further proceedings and with copies of subsequent
1977 Revision: Title changed to indicate that the rule is one deal pleadings and papers as long as the party is an inter
ing with transfer. ested person.
1988 Revision: Prior rule renumbered as (a). New (b) is rule
Committee Notes
implementation of procedure in section 744.202(2), Florida Statutes.
Editorial changes. Committee notes expanded. Citation form changes
Rule History
in rule and committee notes.
1975 Revision: This rule substantially incorporates the provisions
1991 Revision: Editorial changes.
of prior rule 5.060 except that now a copy of the request shall be
mailed by the clerk only to the attorney for the personal representative
1992 Revision: Committee notes revised. Citation form changes in or guardian. Even though a request under this rule has not been made,
committee notes. informal notice as provided in rule 5.040(b)(3) may still be required.
2003 Revision: Committee notes revised. 1977 Revision: Editorial and citation form change in committee
note.
2008 Revision: Change in (b) to add reference to guardian advo
cate. Committee notes revised. 1980 Revision: Caveat, the personal representative may want to
give notice to parties even though not required, for example, where
Statutory References an independent action has been filed on an objected claim.
ch. 47, Fla. Stat. Venue. 1988 Revision: Captions added to subdivisions. Committee notes
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate. expanded. Citation form changes in committee notes.
§ 733.101, Fla. Stat. Venue of probate proceedings.
§ 744.106, Fla. Stat. Notice. 1992 Revision: Editorial changes. Committee notes revised. Citation
§ 744.201, Fla. Stat. Domicile of ward. form changes in committee notes.
§ 744.202, Fla. Stat. Venue.
§ 744.2025, Fla. Stat. Change of ward’s residence. 2003 Revision: Committee notes revised.
§ 744.306, Fla. Stat. Foreign guardians.
§ 744.3085, Fla. Stat. Guardian advocates. Statutory References
§ 744.3201, Fla. Stat. Petition to determine incapacity.
§ 731.201, Fla. Stat. General definitions.
Rule References § 733.604, Fla. Stat. Inventory.
instituted by or against the personal representative or RULE 5.080. DISCOVERY AND SUBPOENA
the guardian. The notice shall contain:
(a) Adoption of Civil Rules. The following Florida
(1) the names of the parties; Rules of Civil Procedure shall apply in all probate and
guardianship proceedings:
(2) the style of the court and the case number;
(1) Rule 1.280, general provisions governing
(3) the county and state where the proceeding is discovery.
pending;
(2) Rule 1.290, depositions before action or pend
(4) the date of commencement of the proceeding; ing appeal.
and
(3) Rule 1.300, persons before whom depositions
(5) a brief statement of the nature of the proceeding. may be taken.
(b) Ancillary Administration. The domiciliary (4) Rule 1.310, depositions upon oral examina
personal representative shall file a notice when an an tion.
cillary administration has commenced, which notice
shall contain: (5) Rule 1.320, depositions upon written questions.
(1) the name and residence address of the ancil (6) Rule 1.330, use of depositions in court pro
lary personal representative; and ceedings.
(2) the information required in subdivisions (a) (7) Rule 1.340, interrogatories to parties.
(2), (3), and (4) above.
(8) Rule 1.350, production of documents and things
(c) Copies Exhibited. A copy of the initial plead
and entry upon land for inspection and other purposes.
ing may be attached to the notice. To the extent an at
tached initial pleading states the required information,
(9) Rule 1.351, production of documents and things
the notice need not restate it.
without deposition.
Committee Notes
(10) Rule 1.360, examination of persons.
This rule reflects a procedural requirement not founded on a stat
ute or rule.
(11) Rule 1.370, requests for admission.
Rule History
(12) Rule 1.380, failure to make discovery; sanctions.
1984 Revision: New rule.
1992 Revision: Editorial change. Citation form changes in com (14) Rule 1.410, subpoena.
mittee notes.
(b) Limitations and Costs. In order to conserve the
2000 Revision: Subdivision (b) amended to eliminate requirement
to set forth nature and value of ancillary assets. assets of the estate, the court has broad discretion to
limit the scope and the place and manner of the discov
Statutory References ery and to assess the costs, including attorneys’ fees,
of the discovery against the party making it or against
§ 733.612(20), Fla. Stat. Transactions authorized for the personal
representative; exceptions. 1 or more of the beneficiaries of the estate or against
§ 744.441(11), Fla. Stat. Powers of guardian upon court approval. the ward in such proportions as the court determines,
RULE 5.080 FLORIDA PROBATE RULES RULE 5.095
considering, among other factors, the benefit derived RULE 5.095. GENERAL AND SPECIAL
therefrom. MAGISTRATES
(c) Application. It is not necessary to have an ad (a) General Magistrates. The court may appoint
versary proceeding under rule 5.025 to utilize the rules general magistrates as the court finds necessary. General
adopted in subdivision (a) above. Any interested per magistrates shall be members of The Florida Bar and
son may utilize the rules adopted in subdivision (a). shall continue in office until removed by the court.
The order making an appointment shall be recorded.
Committee Notes Each general magistrate shall take the oath required of
officers by the Florida Constitution. The oath shall be
Subdivision (b) is not intended to result in the assessment of costs,
including attorney’s fees, in every instance in which discovery is recorded before the magistrate begins to act.
sought. Subdivision (c) is not intended to overrule the holdings in
In re Estate of Shaw, 340 So. 2d 491 (Fla. 3d DCA 1976), and In re (b) Special Magistrates. The court may appoint
Estate of Posner, 492 So. 2d 1093 (Fla. 3d DCA 1986). members of The Florida Bar as special magistrates for
Rule History any particular service required by the court. Special
magistrates shall be governed by all laws and rules
1975 Revision: This rule is the same as prior rule 5.080, broad relating to general magistrates, except special magis
ened to include guardianships and intended to clearly permit the use trates shall not be required to make oath unless specifi
of discovery practices in nonadversary probate and guardianship
matters. cally required by the court. For good cause shown, the
court may appoint a person other than a member of The
1977 Revision: Editorial change in citation form in committee note. Florida Bar as a special magistrate.
1984 Revision: Florida Rules of Civil Procedure 1.290, 1.300,
1.351, and 1.410 have been added. (c) Reference. No referral shall be made to a mag
istrate without the consent of the parties. When a refer
1988 Revision: Subdivision (a)(15) deleted as duplicative of rule ral is made to a magistrate, either party may set the
5.070 Subpoena. Editorial change in (b). Citation form change in action for hearing before the magistrate.
committee notes.
1992 Revision: Editorial changes. Committee notes revised. (d) General Powers and Duties. Every magistrate
Citation form changes in committee notes. shall act under the direction of the court. Process is
sued by a magistrate shall be directed as provided by
1996 Revision: Reference to rule 1.400 eliminated because of
deletion of that rule from the Florida Rules of Civil Procedure. law. All grounds for disqualification of a judge shall
Editorial change. apply to magistrates.
2002 Revision: Reference to rule 1.410 transferred to subdivi (e) Bond. When not otherwise provided by law, the
sion (a) from former rule 5.070. Subdivision (b) amended to give
court discretion to assess attorneys’ fees. Subdivision (c) added. court may require magistrates who are appointed to
Committee notes revised. dispose of real or personal property to give bond and
surety conditioned for the proper payment of all money
2006 Revision: Committee notes revised. that may come into their hands and for the due perfor
2007 Revision: Committee notes revised.
mance of their duties. The bond shall be made payable
to the State of Florida and shall be for the benefit of all
Statutory References persons aggrieved by any act of the magistrate.
§ 731.201(23), Fla. Stat. General definitions.
§ 733.106, Fla. Stat. Costs and attorney’s fees. (f) Hearings. Hearings before any magistrate may
§ 744.105, Fla. Stat. Costs. be held in the county where the action is pending or
§ 744.108, Fla. Stat. Guardian’s and attorney’s fees and expenses. at any other place by order of the court for the conve
nience of the witnesses or the parties. The magistrate
Rule References
shall assign a time and place for proceedings as soon
Fla. Prob. R. 5.025 Adversary proceedings. as reasonably possible after a referral is made and give
Fla. R. Jud. Admin. 2.535 Court reporting. notice to all parties. If any party fails to appear, the
RULE 5.095 FLORIDA PROBATE RULES RULE 5.100
(g) Magistrate’s Report. The magistrate’s report 1977 Revision: Citation form change in committee note.
shall contain a description of the matters considered
and the magistrate’s conclusion and any recommen 1988 Revision: Committee notes expanded. Citation form changes
in rule and committee notes.
dations. No part of any statement of facts, account,
charge, deposition, examination, or answer used before 1992 Revision: Editorial changes. Citation form changes in com
the magistrate shall be recited. mittee notes.
RULE 5.110. ADDRESS DESIGNATION FOR (2) in its personal capacity only in those actions in
PERSONAL REPRESENTATIVE which the personal representative or guardian is sued
OR GUARDIAN; DESIGNATION personally for claims arising from the administration
OF RESIDENT AGENT AND of the estate or guardianship.
ACCEPTANCE
(g) Successor Agent. If the resident agent dies,
(a) Address Designation of Personal Represen resigns, or is unable to act for any other reason, the
tative or Guardian. Before letters are issued, the per personal representative or guardian shall appoint a suc
sonal representative or guardian shall file a designation cessor agent within 10 days after receiving notice that
of its residence street address and mailing address. such event has occurred.
Committee Notes
(b) Designation of Resident Agent. Before let
ters are issued, a personal representative or guardian Rule History
shall file a designation of resident agent for service of
process or notice, and the acceptance by the resident 1977 Revision: Change in committee note to conform to statutory
renumbering.
agent. A designation of resident agent is not required
if a personal representative or guardian is (1) a cor Substantially the same as prior rule 5.210, except that under prior
porate fiduciary having an office in Florida, or (2) a rule, designation was required to be filed within 10 days after letters
issued.
Florida Bar member who is a resident of and has an
office in Florida. The designation shall contain the 1984 Revision: Captions added to subdivisions. New subdivision
name, residence street address, and mailing address of (b) added. Requires filing acceptance at the same time as filing des
the resident agent. A Florida office street address and ignation. Committee notes revised.
mailing address for the attorney as resident agent may
1988 Revision: Change in (c) to clarify that the personal repre
be designated in lieu of a residence address. sentative, if a member of The Florida Bar, may not also serve as
resident agent for service of process or notice. Citation form change
(c) Residency Requirement. A resident agent, in committee notes.
other than a member of The Florida Bar who is a resi 1992 Revision: Editorial changes. Committee notes revised. Citation
dent of Florida, must be a resident of the county where form changes in committee notes.
the proceedings are pending.
2000 Revision: Extensive editorial changes to rule. Rule reformat
ted for clarity and revised to permit an attorney serving as resident
(d) Acceptance by Resident Agent. The resident agent to designate a business address in lieu of a residence address.
agent shall sign a written acceptance of its designation.
2003 Revision: Committee notes revised.
(e) Incorporation in Other Pleadings. The desig
2008 Revision: Committee notes revised.
nation of the address of the personal representative or
guardian, the designation of resident agent, or accep Rule References
tance may be incorporated in the petition for adminis
tration, the petition for appointment of guardian, or the Fla. Prob. R. 5.200 Petition for administration.
Fla. Prob. R. 5.320 Oath of personal representative.
personal representative’s or guardian’s oath.
Fla. Prob. R. 5.560 Petition for appointment of guardian of an
incapacitated person.
(f) Effect of Designation and Acceptance. The Fla. Prob. R. 5.649 Guardian advocate.
designation of and acceptance by the resident agent
shall constitute consent to service of process or notice RULE 5.120. ADMINISTRATOR AD LITEM
on the agent and shall be sufficient to bind the personal AND GUARDIAN AD LITEM
representative or guardian:
(a) Appointment. When it is necessary that the
(1) in its representative capacity in any action; estate of a decedent or a ward be represented in any
and probate or guardianship proceeding and there is no
RULE 5.120 FLORIDA PROBATE RULES RULE 5.120
personal representative of the estate or guardian of the (c) Notice. Within 10 days after appointment, the
ward, or the personal representative or guardian is or petitioner shall deliver or mail conformed copies of
may be interested adversely to the estate or ward, or the petition for appointment of a guardian ad litem and
is enforcing the personal representative’s or guardian’s order to any guardian, or if there is no guardian, to the
own debt or claim against the estate or ward, or the living natural guardians or the living natural guardian
necessity arises otherwise, the court may appoint an having legal custody of the minor, person with a devel
administrator ad litem or a guardian ad litem, as the opmental disability, or incapacitated person.
case may be, without bond or notice for that particular
proceeding. At any point in a proceeding, a court may (d) Report. The guardian ad litem shall deliver or
appoint a guardian ad litem to represent the interests mail conformed copies of any written report or find
of an incapacitated person, an unborn or unascertained ing of the guardian ad litem’s investigation and answer
person, a minor or any other person otherwise under a filed in the proceedings, petition for compensation and
legal disability, a person with a developmental disabil discharge, and the notice of hearing on the petition to
ity, or a person whose identity or address is unknown, any guardian, or in the event that there is no guard
if the court determines that representation of the inter ian, to the living natural guardians or the living natural
est otherwise would be inadequate. If not precluded guardian having legal custody of the minor, person with
by conflict of interest, a guardian ad litem may be ap a developmental disability, or incapacitated person.
pointed to represent several persons or interests. The
administrator ad litem or guardian ad litem shall file an (e) Service of Petition and Order. Within 10 days
oath to discharge all duties faithfully and upon the fil after appointment, the petitioner for an administrator
ing shall be qualified to act. No process need be served ad litem shall deliver or mail conformed copies of the
upon the administrator ad litem or guardian ad litem, petition for appointment and order to the attorney of
but such person shall appear and defend as directed by record of each beneficiary and to each known bene
the court. ficiary not represented by an attorney of record.
(b) Petition. The petition for appointment of a (f) Enforcement of Judgments. When an admin
guardian ad litem shall state to the best of petitioner’s istrator ad litem or guardian ad litem recovers any
information and belief: judgment or other relief, it shall be enforced as other
judgments. Execution shall issue in favor of the admin
(1) the name and residence address of each minor, istrator ad litem or guardian ad litem for the use of the
estate or ward and the money collected shall be paid to
person with a developmental disability, or incapaci
the personal representative or guardian, or as otherwise
tated person and birth date of each minor who has an
ordered by the court.
interest in the proceedings;
(g) Claim of Personal Representative. The fact
(2) the name and address of any guardian ap
that the personal representative is seeking reimburse
pointed for each minor, person with a developmental
ment for claims against the decedent paid by the per
disability, or incapacitated person;
sonal representative does not require appointment of
an administrator ad litem.
(3) the name and residence address of any living
natural guardians or living natural guardian having Committee Notes
legal custody of each minor, person with a develop
mental disability, or incapacitated person; Rule History
(5) the facts showing the necessity for the appoint This rule implements sections 731.303(5), 733.308, and 744.391,
ment of a guardian ad litem. Florida Statutes, and includes some of the provisions of prior rule 5.230.
RULE 5.120 FLORIDA PROBATE RULES RULE 5.122
1988 Revision: Editorial changes; captions added to paragraphs. The court may appoint a curator sua sponte.
Citation form changes in committee notes.
1992 Revision: Addition of phrase in subdivision (a) to conform (b) Appointment. Before letters of curatorship are
to 1992 amendment to section 731.303(5), Florida Statutes. Editorial issued, the curator shall file a designation of resident
changes. Committee notes revised. Citation form changes in com agent and acceptance, and an oath, as is required for
mittee notes.
personal representatives under these rules. The court
2003 Revision: Committee notes revised. shall issue letters of curatorship that shall entitle the
curator to possess or control the decedent’s prop
2006 Revision: Committee notes revised. erty, which the court may enforce through contempt
proceedings.
2008 Revision: Subdivisions (a), (b), (c), and (d) amended to include
persons with a developmental disability. Committee notes revised.
(c) Notice. Formal notice shall be given to the per
Statutory References son apparently entitled to letters, if any. If it is likely
that the decedent’s property will be wasted, destroyed,
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate. or removed beyond the jurisdiction of the court and
§ 731.303, Fla. Stat. Representation.
if the appointment of a curator would be delayed by
§ 733.308, Fla. Stat. Administrator ad litem.
giving notice, the court may appoint a curator without
§ 733.708, Fla. Stat. Compromise.
§ 744.3025, Fla. Stat. Claims of minors. notice.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.387, Fla. Stat. Settlement of claims. (d) Powers. By order, the court may authorize the
§ 744.391, Fla. Stat. Actions by and against guardian or ward. curator to perform any duty or function of a personal
§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities; representative, including publication and service of no
court approval; breach of fiduciary duty.
tice to creditors, or if a will has been admitted, service
of notice of administration.
RULE 5.122. CURATORS
(e) Inventory and Accounting. The curator shall
(a) Petition for Appointment. The petition for ap file an inventory within 30 days after issuance of let
pointment of a curator shall be verified and shall contain: ters of curatorship. When the personal representative is
appointed, the curator shall account for and deliver all
(1) the petitioner’s name, address, and interest, if estate assets in the curator’s possession to the personal
any, in the estate; representative within 30 days after issuance of letters
of administration.
(2) the decedent’s name, address, date and place
of death, and state and county of domicile; (f) Petition to Reconsider. If a curator has been
appointed without notice, any interested party who did
(3) the names and addresses of the persons ap not receive notice may, at any time, petition to recon
parently entitled to letters of administration and any sider the appointment.
known beneficiaries;
(g) Subject to Other Provisions. Curators shall be
(4) the nature and approximate value of the assets; subject to the provisions of these rules and other ap
plicable law concerning personal representatives.
(5) a statement showing venue;
Committee Notes
(6) a statement as to why a curator should be ap This rule implements of the procedure found in section 733.501,
pointed; and Florida Statutes, as amended in 1997 and 2001. The rule has been
modified, in part, to reflect the addition of new rule 5.241 regarding
notice to creditors. Because the fundamental concern of curatorship
(7) the name and address of any proposed curator. is protection of estate property, the procedure facilitates speed and
RULE 5.122 FLORIDA PROBATE RULES RULE 5.150
flexibility while recognizing due process concerns. It is not intended (c) Service. A copy of the order shall be served on
that this rule change the effect of the statute from which it has been the personal representative or guardian and the per
derived, but the rule has been reformatted to conform to the structure
of these rules. Furthermore, the Committee does not intend to create sonal representative’s or guardian’s attorney.
a new procedure, except that subdivision (d) specifies certain acts
that the court may authorize the curator to perform. This specificity Committee Notes
of example, while not included in the statute, is not intended to limit
the authorized acts to those specified in the rule. The appointment The court on its motion or on petition of an interested person may
of a curator without notice is tantamount to a temporary injunction. require a personal representative or guardian to file an accounting or
Thus, due process considerations suggest an expedited hearing to return not otherwise required by statute.
reconsider the appointment of a curator by any interested party who
did not receive notice. Rule History
1988 Revision: New rule. 1984 Revision: Extensive editorial changes. Committee notes revised
and expanded.
1992 Revision: Editorial changes. Citation form changes in com
1992 Revision: Editorial changes. Committee notes revised.
mittee notes.
Citation form changes in committee notes.
2003 Revision: Extensive changes to rule to clarify procedure for
2003 Revision: Committee notes revised.
appointment of curator. Committee notes revised.
2008 Revision: Committee notes revised.
Statutory References
Statutory References
§ 733.402, Fla. Stat. Bond of fiduciary; when required; form.
§ 733.501, Fla. Stat. Curators. § 38.22, Fla. Stat. Power to punish contempts.
§ 38.23, Fla. Stat. Contempts defined.
Rule Reference § 393.12(2)(h), Fla. Stat. Capacity; appointment of guardian advocate.
§ 733.5036, Fla. Stat. Accounting and discharge following resignation.
Fla. Prob. R. 5.020 Pleadings; verification; motions. § 733.508, Fla. Stat. Accounting and discharge of removed per
sonal representatives upon removal.
§ 733.901, Fla. Stat. Final discharge.
RULE 5.150. ORDER REQUIRING ch. 738, Fla. Stat. Principal and income.
ACCOUNTING § 744.3085, Fla. Stat. Guardian advocates.
§ 744.367, Fla. Stat. Duty to file annual guardianship report.
(a) Accountings Required by Statute. When any § 744.3678, Fla. Stat. Annual accounting.
§ 744.3685, Fla. Stat. Order requiring guardianship report; contempt.
personal representative or guardian fails to file an ac § 744.369, Fla. Stat. Judicial review of guardianship reports.
counting or return required by statute or rule, the court § 744.467, Fla. Stat. Resignation of guardian.
on its own motion or on the petition of an interested § 744.511, Fla. Stat. Accounting upon removal.
person shall order the personal representative or guard § 744.517, Fla. Stat. Proceedings for contempt.
§ 744.521, Fla. Stat. Termination of guardianship.
ian to file the accounting or return within 15 days from § 744.524, Fla. Stat. Termination of guardianship on change of
the service on the personal representative or guardian domicile of resident ward.
of the order, or show cause why he or she should not be § 744.527, Fla. Stat. Final reports and applications for discharge;
compelled to do so. hearing.
Rule References
(b) Accountings Not Required by Statute. On the
petition of an interested person, or on its own motion, Fla. Prob. R. 5.649 Guardian advocate.
the court may require the personal representative or Fla. Prob. R. 5.650 Resignation or disqualification of guardian;
appointment of successor.
guardian to file an accounting or return not otherwise Fla. Prob. R. 5.660 Proceedings for removal of guardian.
required by statute or rule. The order requiring an ac Fla. Prob. R. 5.670 Termination of guardianship on change of
counting or return shall order the personal representa domicile of resident ward.
tive or guardian to file the accounting or return within a Fla. Prob. R. 5.680 Termination of guardianship.
Fla. Prob. R. 5.681 Restoration of rights of person with develop
specified time from service on the personal representa mental disability.
tive or guardian of the order, or show cause why he or Fla. Prob. R. 5.695 Annual guardianship report.
she should not be compelled to do so. Fla. Prob. R. 5.696 Annual accounting.
RULE 5.150 FLORIDA PROBATE RULES RULE 5.171
Fla. Prob. R. 5.697 Magistrates’ review of guardianship account RULE 5.171. EVIDENCE OF DEATH
ings and plans.
In a proceeding under these rules, the following shall
RULE 5.160. PRODUCTION OF ASSETS apply:
On the petition of an interested person, or on its (a) Death Certificate. An authenticated copy of a
own motion, the court may require any personal repre death certificate issued by an official or agency of the
sentative or guardian to produce satisfactory evidence place where the death purportedly occurred or by an
that the assets of the estate are in the possession or official or agency of the United States is prima facie
under the control of the personal representative or proof of the fact, place, date, and time of death and the
guardian and may order production of the assets in the identity of the decedent.
manner and for the purposes directed by the court.
Committee Notes
(b) Other Records. A copy of any record or report
of a governmental agency, domestic or foreign, that a
Rule History person is dead, alive, missing, detained, or, from the
facts related, presumed dead is prima facie evidence of
1977 Revision: Change in committee notes.
the status, dates, circumstances, and places disclosed
1984 Revision: Minor editorial changes. Committee notes revised. by the record or report.
1988 Revision: Editorial changes. (c) Extended Absence. A person who is absent from
1992 Revision: Editorial changes. Committee notes revised.
the place of that person’s last known domicile for a con
tinuous period of 5 years and whose absence is not sat
Statutory Reference isfactorily explained after diligent search and inquiry is
presumed dead. The person’s death is presumed to have
§ 744.373, Fla. Stat. Production of property.
occurred at the end of the period unless there is evidence
establishing that death occurred earlier.
RULE 5.170. EVIDENCE
Committee Notes
In proceedings under the Florida Probate Code and
the Florida Guardianship Law the rules of evidence in This rule represents a rule implementation of the procedure found
in section 731.103, Florida Statutes. It is not intended to change
civil actions are applicable unless specifically changed the effect of the statute from which it was derived but has been
by the Florida Probate Code, the Florida Guardianship reformatted to conform with the structure of these rules. It is not
Law, or these rules. intended to create a new procedure or modify an existing procedure,
except that additional language has been added which was not in
Committee Notes the statute, to permit issuance of a death certificate by an official or
agency of the United States. An example would be such a certificate
Rule History issued by the Department of State or the Department of Defense.
1984 Revision: To further clarify the intent of the rule to incorporate 1988 Revision: New rule.
the provisions of the Florida Evidence Code (chapter 90, Florida
Statutes) when not in conflict with the Florida Probate Code or Florida 1992 Revision: Editorial changes. Committee notes revised. Citation
Guardianship Law, or rules applicable to these particular proceedings. form changes in committee notes.
2003 Revision: Committee notes revised. § 731.103, Fla. Stat. Evidence as to death or status.
§ 744.521, Fla. Stat. Termination of guardianship.
Statutory References
Rule References
ch. 90, Fla. Stat. Florida Evidence Code.
§ 733.107, Fla. Stat. Burden of proof in contests; presumption of Fla. Prob. R. 5.205 Filing evidence of death.
undue influence. Fla. Prob. R. 5.680 Termination of guardianship.
RULE 5.180 FLORIDA PROBATE RULES RULE 5.200
RULE 5.180. WAIVER AND CONSENT 1996 Revision: Addition of specific fee waiver disclosure require
ments found in § 733.6171(9), Florida Statutes, and expanded to
cover all fees. Committee notes revised.
(a) Manner of Execution. A waiver or consent as
authorized by law shall be in writing and signed by the 2003 Revision: Committee notes revised.
person executing the waiver or consent.
2006 Revision: Rule extensively amended to remove references to
(b) Contents. The waiver or consent shall state: interested persons’ right to waive or consent, which is governed by
section 731.302, Florida Statutes, and to address manner of execu
tion and contents of waiver. Committee notes revised.
(1) the person’s interest in the subject of the waiver
or consent; Statutory References
(2) if the person is signing in a fiduciary or repre § 731.302, Fla. Stat. Waiver and consent by interested person.
§ 731.303, Fla. Stat. Representation.
sentative capacity, the nature of the capacity; § 733.6171, Fla. Stat. Compensation of attorney for the personal
representative.
(3) expressly what is being waived or consented
to; and PART II — PROBATE
(4) if the waiver pertains to compensation, lan RULE 5.200. PETITION FOR
guage declaring that the waiving party has actual ADMINISTRATION
knowledge of the amount and manner of determining
the compensation and, in addition, either: The petition for administration shall be verified by
the petitioner and shall contain:
(A) that the party has agreed to the amount and
manner of determining that compensation and waives (a) a statement of the interest of the petitioner, the
any objection to payment; or petitioner’s name and address, and the name and office
address of the petitioner’s attorney;
(B) that the party has the right to petition the
court to determine the compensation and waives that (b) the name, last known address, social security
right. number, date and place of death of the decedent, and
state and county of the decedent’s domicile;
(c) Filing. The waiver or consent shall be filed.
(c) so far as is known, the names and addresses of
Committee Notes the surviving spouse, if any, and the beneficiaries and
their relationship to the decedent and the date of birth
One person who serves in two fiduciary capacities may not waive
or consent to the person’s acts without the approval of those whom
of any who are minors;
the person represents. This rule represents a rule implementation of
the procedure found in section 731.302, Florida Statutes. (d) a statement showing venue;
Rule History
(e) the priority, under the code, of the person
1977 Revision: Extends right of waiver to natural guardian; clari whose appointment as the personal representative is
fies right to waive service of notice of administration. sought and a statement that the person is qualified to
serve under the laws of Florida;
1984 Revision: Extends waiver to disclosure of compensation and
distribution of assets. Committee notes revised.
(f) a statement whether domiciliary or principal
1988 Revision: Procedure from section 731.302, Florida Statutes, proceedings are pending in another state or country, if
inserted as new (1)(f), and a new requirement that the waiver be in known, and the name and address of the foreign per
writing has been added. Editorial changes. Committee notes ex sonal representative and the court issuing letters;
panded. Citation form changes in committee notes.
1992 Revision: Editorial changes. Committee notes revised. (g) a statement of the approximate value and na
Citation form changes in committee notes. ture of the assets;
RULE 5.200 FLORIDA PROBATE RULES RULE 5.201
1992 Revision: Addition of phrase in subdivision (b) to conform This rule represents a rule implementation of the procedure formerly
to 1992 amendment to section 733.202(2)(b), Florida Statutes. found in section 733.203(2), Florida Statutes, which was repealed as
Reference to clerk ascertaining the amount of the filing fee deleted procedural in 2001.
in subdivision (g) because of repeal of sliding scale of filing fees.
The remaining language was deemed unnecessary. Editorial chang Rule History
es. Committee notes revised. Citation form changes in committee
notes. 1988 Revision: New rule.
2002 Revision: Addition of phrases in subdivision (j) to add 1992 Revision: Committee notes revised. Citation form changes
references to wills probated in Florida where the original is in the in committee notes.
possession of a foreign official. Editorial changes. Committee notes
revised. 2003 Revision: Committee notes revised.
(6) Determination of protected homestead: at any RULE 5.210. PROBATE OF WILLS WITHOUT
time prior to entry of the final judgment determining ADMINISTRATION
protected homestead status of real property.
(a) Petition and Contents. A petition to admit a
(7) Probate of will without administration: at any decedent’s will to probate without administration shall
time prior to entry of the order admitting will to probate. be verified by the petitioner and shall contain:
(b) Waiver. On verified petition by the personal (1) a statement of the interest of the petitioner, the
representative, if any, or the petitioner the court may petitioner’s name and address, and the name and office
enter an order dispensing with this rule, without notice address of the petitioner’s attorney;
or hearing.
(2) the name, last known address, social security
(c) Authority to Require Filing. The court may, number, date and place of death of the decedent, and
without notice or hearing, enter an order requiring the state and county of the decedent’s domicile;
personal representative, if any, or the petitioner to file
a copy of an official record of death at any time during (3) so far as is known, the names and addresses of
the proceedings. the surviving spouse, if any, and the beneficiaries and
RULE 5.210 FLORIDA PROBATE RULES RULE 5.210
their relationships to the decedent, and the date of birth 1984 Revision: This rule has been completely revised to set forth
of any who are minors; the procedure for proving all wills except lost or destroyed wills and
the title changed. The rule requires an oath attesting to the statu
tory requirements for execution of wills and the will must be proved
(4) a statement showing venue; before an order can be entered admitting it to probate. Former rules
5.280, 5.290, and 5.500 are included in this rule. Committee notes
(5) a statement whether domiciliary or principal revised.
proceedings are pending in another state or country, if
1988 Revision: Editorial and substantive changes. Change in (a)
known, and the name and address of the foreign per
(3) to clarify which law determines validity of a notarial will; change
sonal representative and the court issuing letters; in (a)(4) to clarify requirement that will of a Florida resident must
comply with Florida law; adds new subdivision (b) to set forth re
(6) a statement that there are no assets subject to quired contents of petition for probate of will; moves former (b) to
administration in Florida; (c). Committee notes expanded; citation form change in committee
notes.
(7) a statement identifying all unrevoked wills and 1992 Revision: Editorial changes. Committee notes revised.
codicils being presented for probate and a statement Citation form changes in committee notes.
that the petitioner is unaware of any other unrevoked
wills or codicils or, if the petitioner is aware of any 1996 Revision: Subdivision (a)(4) changed to allow authenticated
other unrevoked wills or codicils, a statement why the copies of wills to be admitted to probate if the original is filed or
deposited in another jurisdiction.
other wills or codicils are not being probated; and
2002 Revision: Substantial revision to the rule setting forth the
(8) a statement that the original of the decedent’s requirements of a petition to admit a will to probate when adminis
last will is in the possession of the court or accompa tration is not required. Self proof of wills is governed by the Florida
nies the petition, or that an authenticated copy of a will Statutes. Former subdivision (a)(4) amended and transferred to new
deposited with or probated in another jurisdiction or rule 5.215. Former subdivision (a)(5) amended and transferred to
new rule 5.216.
that an authenticated copy of a notarial will, the origi
nal of which is in the possession of a foreign notary, 2003 Revision: Committee notes revised.
accompanies the petition.
2007 Revision: Existing text redesignated as subdivision (a) and
(b) Service. The petitioner shall comply with rule editorial change made in (a)(7). New subdivisions (b) and (c) added
to provide for service of the petition and the procedure for objections
5.240 with regard to service of a copy of the petition.
consistent with the procedures for probate of a will with administra
tion. Committee notes revised.
(c) Objections. Objections to the validity of the will
shall follow the form and procedure set forth in these Statutory References
rules pertaining to revocation of probate. Objections to
the venue or jurisdiction of the court shall follow the § 731.201, Fla. Stat. General definitions.
§ 732.502, Fla. Stat. Execution of wills.
form and procedure set forth in the Florida Rules of § 732.503, Fla. Stat. Self-proof of will.
Civil Procedure. § 733.201, Fla. Stat. Proof of wills.
§ 733.202, Fla. Stat. Petition.
Committee Notes § 733.204, Fla. Stat. Probate of a will written in a foreign language.
§ 733.205, Fla. Stat. Probate of notarial will.
Examples illustrating when a will might be admitted to probate § 733.206, Fla. Stat. Probate of will of resident after foreign probate.
are when an instrument (such as a will or trust agreement) gives the § 733.207, Fla. Stat. Establishment and probate of lost or destroyed
decedent a power exercisable by will, such as the power to appoint
will.
a successor trustee or a testamentary power of appointment. In each
§ 734.104, Fla. Stat. Foreign wills; admission to record; effect on
instance, the will of the person holding the power has no legal sig
nificance until admitted to probate. There may be no assets, credi title.
tors’ issues, or other need for a probate beyond admitting the will to
establish the exercise or non-exercise of such powers. Rule References
Fla. Prob. R. 5.015 General definitions.
Rule History Fla. Prob. R. 5.205(a)(7) Filing evidence of death.
Fla. Prob. R. 5.215 Authenticated copy of will.
1975 Revision: Proof of will may be taken by any Florida circuit Fla. Prob. R. 5.216 Will written in foreign language.
judge or clerk without issuance of commission. Fla. Prob. R. 5.240 Notice of administration.
RULE 5.215 FLORIDA PROBATE RULES RULE 5.230
RULE 5.215. AUTHENTICATED COPY OF WILL RULE 5.230. COMMISSION TO PROVE WILL
An authenticated copy of a will may be admitted to (a) Petition. On petition the court may appoint
probate if the original could be admitted to probate in a commissioner to take the oath of any person quali
Florida. fied to prove the will under Florida law. The petition
shall set forth the date of the will and the place where
Committee Notes it was executed, if known; the names of the wit
nesses and address of the witness whose oath is to be
Rule History
taken; and the name, title, and address of the proposed
2002 Revision: New rule, derived from former rule 5.210(a)(4). commissioner.
2003 Revision: Committee notes revised. (b) Commission. The commission shall be directed
to any person who is authorized to administer an oath
Statutory References
by the laws of Florida, the United States of America, or
§ 733.205, Fla. Stat. Probate of notarial will. the state or country where the witness may be found,
§ 733.206, Fla. Stat. Probate of will of resident after foreign and it shall empower the commissioner to take the oath
probate.
of the witness to prove the will and shall direct the
§ 734.102, Fla. Stat. Ancillary administration.
§ 734.1025, Fla. Stat. Nonresident decedent’s testate estate with commissioner to certify the oath and file the executed
property not exceeding $50,000 in this state; determination of commission, copy of the will, oath of the witness, and
claims. certificate of commissioner. An oath of the commis
§ 734.104, Fla. Stat. Foreign wills; admission to record; effect on
sioner is not required.
title.
RULE 5.216. WILL WRITTEN IN FOREIGN (d) Filing. The executed commission, copy of
LANGUAGE the will, oath of the witness, and certificate of com
missioner shall be filed.
A will written in a foreign language being offered for
probate shall be accompanied by a true and complete (e) Objections. Objections to the validity of the will
English translation. In the order admitting the foreign shall follow the form and procedure set forth in these
language will to probate, the court shall establish the rules pertaining to revocation of probate. Objections to
correct English translation. At any time during admin the qualifications of the personal representative shall
istration, any interested person may have the correct follow the form and procedure set forth in these rules
ness of the translation redetermined after formal notice pertaining to removal of personal representatives.
to all other interested persons. Objections to the venue or jurisdiction of the court
shall follow the form and procedure set forth in the
Committee Notes Florida Rules of Civil Procedure.
Rule History
Committee Notes
2002 Revision: New rule, derived from former rule 5.210(a)(5)
and section 733.204(2), Florida Statutes. Rule History
Statutory Reference 1975 Revision: Substantially the same as prior rule 5.130(a) and
(b) and carries forward prior procedures as to a matter upon which
§ 733.204, Fla. Stat. Probate of a will written in a foreign language. Florida Probate Code is silent.
RULE 5.230 FLORIDA PROBATE RULES RULE 5.240
1984 Revision: This rule has been completely changed to set forth (3) any required oath or designation of, and accep
the procedure for the issuance and return of a commission. The rule tance by, a resident agent shall be filed.
has been broadened to allow anyone authorized by Florida Statutes
or by the U.S. Code to be a commissioner as well as those authorized
by the state or country where the witness resides. (b) Issuance of Letters. Upon compliance with all
of the foregoing, letters shall be issued to the personal
The rule now provides that the petitioner or his attorney shall representative.
forward the commission to the commissioner. The rule also con
templates that a Florida notary may be appointed as commissioner
to take the proof of a witness outside the State of Florida. Committee (c) Bond. On petition by any interested person or
notes revised and expanded. on the court’s own motion, the court may waive the
requirement of filing a bond, require a personal repre
1988 Revision: Editorial and substantive changes. Change in (a)
to provide that the commissioner may take the oath of not only the sentative or curator to give bond, increase or decrease
attesting witness to the will but also the oath of any other person the bond, or require additional surety.
qualified to prove the will; change in (c) to permit copies other than
photographic copies to be furnished to the commissioner, and to per Committee Notes
mit delivery of documents in a manner other than by mailing; change
in (d) to require the filing of documents with the court. Committee This rule represents a rule implementation of the procedure for
notes revised. Citation form changes in rule and committee notes. merly found in sections 733.401 and 733.403(2), Florida Statutes,
both of which were repealed in 2001. It is not intended to change the
1992 Revision: Editorial change. Committee notes revised. effect of the statutes from which it was derived but has been refor
Citation form changes in committee notes. matted to conform with the structure of these rules. It is not intended
to create a new procedure or modify an existing procedure.
2003 Revision: Committee notes revised.
Rule History
Statutory References
1988 Revision: New rule.
§ 92.50, Fla. Stat. Oaths, affidavits, and acknowledgments; who
may take or administer; requirements. 1992 Revision: Editorial changes. Committee notes revised.
§ 733.101, Fla. Stat. Venue of probate proceedings. Citation form changes in committee notes.
§ 733.109, Fla. Stat. Revocation of probate.
§ 733.201, Fla. Stat. Proof of wills. 1996 Revision: Mandate in subdivision (a)(2) prohibiting charge
§ 733.504, Fla. Stat. Removal of personal representative; causes for of service fee by clerk deleted. Statutory references added.
removal.
§ 733.506, Fla. Stat. Proceedings for removal. 2003 Revision: Committee notes revised.
22 U.S.C. § 4215 Notarial acts, oaths, affirmations, affidavits, and
depositions; fees. Statutory References
Rule References § 28.24(24), Fla. Stat. Service charges by clerk of the circuit court.
§ 28.2401, Fla. Stat. Service charges in probate matters.
Fla. Prob. R. 5.050 Transfer of proceedings. § 733.402, Fla. Stat. Bond of fiduciary; when required; form.
Fla. Prob. R. 5.270 Revocation of probate. § 733.403, Fla. Stat. Amount of bond.
Fla. Prob. R. 5.440 Proceedings for removal. § 733.405, Fla. Stat. Release of surety.
Fla. R. Civ. P. 1.060 Transfers of actions. § 733.501, Fla. Stat. Curators.
Rule References
RULE 5.235. ISSUANCE OF LETTERS, BOND
Fla. Prob. R. 5.110 Address designation for personal representative
or guardian; designation of resident agent and acceptance.
(a) Appointment of Personal Representative. Fla. Prob. R. 5.122 Curators.
After the petition for administration is filed and the Fla. Prob. R. 5.320 Oath of personal representative.
will, if any, is admitted to probate:
RULE 5.240. NOTICE OF ADMINISTRATION
(1) the court shall appoint the person entitled and
qualified to be personal representative; (a) Service. The personal representative shall
promptly serve a copy of the notice of administration
(2) the court shall determine the amount of any on the following persons who are known to the personal
bond required. The clerk may approve the bond in the representative and who were not previously served un
amount determined by the court; and der section 733.2123, Florida Statutes:
RULE 5.240 FLORIDA PROBATE RULES RULE 5.240
(1) the decedent’s surviving spouse; and all codicils admitted to probate to any person on
whom the notice of administration was served.
(2) all beneficiaries;
(d) Objections. Objections to the validity of the will
(3) a trustee of any trust described in section shall follow the form and procedure set forth in these
733.707(3), Florida Statutes and each qualified benefi rules pertaining to revocation of probate. Objections to
ciary of the trust as defined in section 736.0103(14), the qualifications of the personal representative shall
if each trustee is also a personal representative of the follow the form and procedure set forth in these rules
estate; and pertaining to removal of a personal representative.
Objections to the venue or jurisdiction of the court
(4) persons who may be entitled to exempt shall follow the form and procedure set forth in the
property Florida Rules of Civil Procedure.
in the manner provided for service of formal notice. (e) Waiver of Service. For the purpose of deter
The personal representative may similarly serve a copy mining deadlines established by reference to the date
of the notice on any devisee under another will or heirs of service of a copy of the notice of administration in
or others who claim or may claim an interest in the cases in which service has been waived, service on a
estate. person who has waived notice shall be deemed to occur
on the date the waiver is filed.
(b) Contents. The notice shall state:
Committee Notes
(1) the name of the decedent, the file number of Rule History
the estate, the designation and address of the court in
which the proceedings are pending, whether the estate 1977 Revision: Former subdivision (c) is deleted as being sub
is testate or intestate, and, if testate, the date of the will stantive rather than procedural.
and any codicils;
1984 Revision: Editorial changes; new requirement to file proof
of publication; new requirements as to form of objections to will and
(2) the name and address of the personal represen qualifications of personal representative. Committee notes revised.
tative and of the personal representative’s attorney;
1988 Revision: The obligation to mail notice of administration to all
known or reasonably ascertainable creditors has been added to com
(3) that any interested person on whom the notice ply with the dictates of Tulsa Professional Collection Services, Inc. v.
is served who challenges the validity of the will, the Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988).
qualifications of the personal representative, venue,
or jurisdiction of the court is required to file any ob This rule does not require sending notice of administration to
creditors in estates where the time for filing claims has expired be
jections with the court in the manner provided in the fore the effective date of this rule. However, no opinion is offered
Florida Probate Rules within the time required by law whether such claims are barred by the provisions of section 733.702,
or those objections are forever barred; Florida Statutes.
1996 Revision: Subdivision (a) amended to require service of representative shall promptly publish a notice to creditors
notice of administration on trustees of certain revocable trusts as and serve a copy of the notice on all creditors of the de
defined by Florida statute. Editorial changes.
cedent who are reasonably ascertainable and, if required
2002 Revision: Procedures for notifying creditors are now gov by law, on the Agency for Health Care Administration.
erned by new rule 5.241. Committee notes revised. Service of the notice shall be either by informal notice,
or in the manner provided for service of formal notice at
2003 Revision: Change in title of (a) to reflect elimination of pub
lication of notice. Committee notes revised. the option of the personal representative. Service on one
creditor by a chosen method shall not preclude service
2005 Revision: Subdivision (a)(3) amended to make it consistent on another creditor by another method.
with 2003 change to section 733.212(1)(c), Florida Statutes, regarding
when service on trust beneficiaries is required, and clarifying editorial
change made in (a). New subdivision (b)(5) added regarding notice to (b) Contents. The notice to creditors shall contain
file election to take elective share. Committee notes revised. the name of the decedent, the file number of the es
tate, the designation and address of the court, the name
2007 Revision: Subdivision (a)(3) amended to replace reference
and address of the personal representative and of the
to “beneficiary” with “qualified beneficiary” and to change reference
from former section 737.303(4)(b) to new section 736.0103(14), personal representative’s attorney, and the date of first
which defines that term. Subdivision (b)(5) amended to delete the publication of the notice to creditors. The notice shall
reference to the surviving spouse filing the election as another person require all creditors to file all claims against the estate
can file the election on behalf of the surviving spouse. New subdivi
with the court, within the time provided by law.
sion (e) added to provide a deadline for objection by a person who
waives service. Committee notes revised.
(c) Method of Publication and Proof. Publication
Statutory References shall be made as required by law. The personal repre
§ 731.201(23), Fla. Stat. General definitions.
sentative shall file proof of publication with the court
§ 731.301, Fla. Stat. Notice. within 45 days after the date of first publication of the
§ 731.302, Fla. Stat. Waiver and consent by interested person. notice to creditors.
§ 732.2135, Fla. Stat. Time of election; extensions; withdrawal.
§ 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and undue
influence.
(d) Statement Regarding Creditors. Within 4
§ 733.101, Fla. Stat. Venue of probate proceedings. months after the date of the first publication of notice to
§ 733.109, Fla. Stat. Revocation of probate. creditors, the personal representative shall file a verified
§ 733.212, Fla. Stat. Notice of administration; filing of objections. statement that diligent search has been made to ascertain
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
§ 733.302, Fla. Stat. Who may be appointed personal representative. the name and address of each person having a claim
§ 733.303, Fla. Stat. Persons not qualified. against the estate. The statement shall indicate the name
§ 733.305, Fla. Stat. Trust companies and other corporations and and address of each person at that time known to the per
associations. sonal representative who has or may have a claim against
§ 733.504, Fla. Stat. Removal of personal representative; causes
for removal. the estate and whether such person was served with the
§ 733.506, Fla. Stat. Proceedings for removal. notice to creditors or otherwise received actual notice
of the information contained in the notice to creditors;
Rule References
provided that the statement need not include persons
Fla. Prob. R. 5.025 Adversary proceedings. who have filed a timely claim or who were included in
Fla. Prob. R. 5.040 Notice. the personal representative’s proof of claim.
Fla. Prob. R. 5.050 Transfer of proceedings.
Fla. Prob. R. 5.180 Waiver and consent.
(e) Service of Death Certificate. If service of the
Fla. Prob. R. 5.270 Revocation of probate.
Fla. Prob. R. 5.440 Proceedings for removal. notice on the Agency for Health Care Administration is
Fla. R. Civ. P. 1.060 Transfers of actions. required, it shall be accompanied by a death certificate.
It is the committee’s opinion that the failure to timely file the proof
(a) Publication and Service. Unless creditors’ of publication of the notice to creditors shall not affect time limita
claims are otherwise barred by law, the personal tions for filing claims or objections.
RULE 5.241 FLORIDA PROBATE RULES RULE 5.260
On April 19, 1988, the United States Supreme Court decided Tulsa RULE 5.260. CAVEAT; PROCEEDINGS
Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct.
1340, 99 L. Ed. 2d 565. This case substantially impacted the method
for handling (and barring) creditors’ claims. This case stands for the (a) Filing. Any creditor or interested person other
proposition that a creditor may not be barred by the usual publication if than a creditor may file a caveat with the court.
that creditor was actually known to or reasonably ascertainable by the
personal representative, and the personal representative failed to give
notice to the creditor by mail or other means as certain to ensure actual
(b) Contents. The caveat shall contain the dece
notice. Less than actual notice in these circumstances would deprive dent’s name, the decedent’s social security number or
the creditor of due process rights under the 14th Amendment to the date of birth, if known, a statement of the interest of the
U.S. Constitution. Probably actual notice of the death (as in the case of caveator in the estate, and the name, specific mailing
a hospital where the decedent died as a patient) without notice of the
institution of probate proceedings is not sufficient. address, and residence address of the caveator.
An elementary and fundamental requirement of due process in (c) Resident Agent of Caveator; Service. If the ca
any proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested persons
veator is not a resident of Florida, the caveator shall file
of the pendency of the proceeding and afford them an opportunity to a designation of the name and specific mailing address
present their claims. and residence address of a resident in the county where
the caveat is filed as the caveator’s agent for service of
The steps to be taken by a personal representative in conducting
a diligent search for creditors depends, in large measure, on how notice. The written acceptance by the person appointed
familiar the personal representative is with the decedent’s affairs. as resident agent shall be filed with the designation or
Therefore, the committee believes it is inappropriate to list particular included in the caveat. The designation and acceptance
steps to be taken in each estate, since the circumstances will vary
shall constitute the consent of the caveator that service
from case to case.
of notice upon the designated resident agent shall bind
The statement required by this rule is not intended to be jurisdic the caveator. If the caveator is represented by an at
tional but rather to provide evidence of satisfaction (or lack thereof) torney admitted to practice in Florida who signs the
of the due process requirements.
caveat, it shall not be necessary to designate a resident
Rule History agent under this rule.
2002 Revision: New rule to implement procedures consistent with (d) Filing After Commencement. If at the time of
new section 733.2121, Florida Statutes.
the filing of any caveat the decedent’s will has been
2003 Revision: Committee notes revised. admitted to probate or letters of administration have
been issued, the clerk shall forthwith notify the cave
2005 Revision: Subdivision (a) amended to clarify approved ator in writing of the date of issuance of letters and the
methods of service on creditors. Committee notes revised.
names and addresses of the personal representative and
2007 Revision: New subdivision (e) added to require service of the personal representative’s attorney.
a copy of the decedent’s death certificate on the Agency for Health
Care Administration, as is now required by section 733.2121(3)(d), (e) Creditor. When letters of administration is
Florida Statutes.
sue after the filing of a caveat by a creditor, the clerk
2007 Revision: Editorial change in (a). shall forthwith notify the caveator, in writing, advising
the caveator of the date of issuance of letters and the
Statutory References
names and addresses of the personal representative and
ch. 50, Fla. Stat. Legal and official advertisements. the personal representative’s attorney, unless notice has
§ 731.301, Fla. Stat. Notice. previously been served on the caveator. A copy of any
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims. notice given by the clerk, together with a certificate of
§ 733.702, Fla. Stat. Limitations on presentation of claims.
§ 733.703, Fla. Stat. Form and manner of presenting claim.
the mailing of the original notice, shall be filed in the
§ 733.704, Fla. Stat. Amendment of claims. estate proceedings.
§ 733.705, Fla. Stat. Payment of and objection to claims.
§ 733.708, Fla. Stat. Compromise. (f) Other Interested Persons; Before Commence
Rule Reference
ment. After the filing of a caveat by an interested per
son other than a creditor, the court shall not admit a
Fla. Prob. R. 5.490 Form and manner of presenting claim. will of the decedent to probate or appoint a personal
RULE 5.260 FLORIDA PROBATE RULES RULE 5.275
1977 Revision: Carried forward prior rule 5.150. 1984 Revision: Extensive changes. Committee notes revised.
1984 Revision: Changes in (a), (b), and (d) are editorial. Change 1988 Revision: Language of subdivision (b) of the rule rewritten
in (c) eliminates resident agent requirement for Florida residents and to track the statute more closely. Committee notes expanded. Citation
for nonresidents represented by a Florida attorney. Service on the form change in committee notes.
attorney binds caveator. Former (e) is now subdivisions (e) and (f)
and treats creditor caveator differently from other interested persons. 1992 Revision: Committee notes revised. Citation form changes
Change in (f) requires formal notice. Committee notes revised. in committee notes.
1988 Revision: Committee notes revised. Citation form changes in 2003 Revision: Committee notes revised.
committee notes.
2005 Revision: “Beneficiaries” substituted for “devisees” in
1992 Revision: Addition of language in subdivision (b) to imple subdivision (b) to conform language to section 733.109(2), Florida
ment 1992 amendment to section 731.110(2), Florida Statutes. Statutes.
Editorial changes. Citation form changes in committee notes.
2007 Revision: Committee notes revised.
2003 Revision: Committee notes revised.
Statutory References
Statutory Reference
§ 731.201(23), Fla. Stat. General definitions.
§ 731.110, Fla. Stat. Caveat; proceedings.
§ 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and undue
influence.
Rule Reference
§ 733.109, Fla. Stat. Revocation of probate.
Fla. Prob. R. 5.040(a) Notice. § 733.212, Fla. Stat. Notice of administration; filing of objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
(a) Petition and Contents. A petition for revoca Fla. Prob. R. 5.025 Adversary proceedings.
tion of probate shall state the interest of the petitioner Fla. Prob. R. 5.040 Notice.
in the estate and the facts constituting the grounds on Fla. Prob. R. 5.240 Notice of administration.
which revocation is demanded.
RULE 5.275. BURDEN OF PROOF IN WILL
(b) Continued Administration. Pending the deter CONTESTS
mination of any issue for revocation of probate, the
personal representative shall proceed with the adminis In all proceedings contesting the validity of a will,
tration of the estate as if no revocation proceeding had the burden shall be upon the proponent of the will to
been commenced, except that no distribution may be establish prima facie its formal execution and attesta
made to beneficiaries in contravention of the rights of tion. Thereafter, the contestant shall have the burden of
those who, but for the will, would be entitled to the establishing the grounds on which the probate of the
property disposed of. will is opposed or revocation sought.
RULE 5.275 FLORIDA PROBATE RULES RULE 5.320
This rule represents a rule implementation of the procedure found 1975 Revision: This is same as old rule 5.220 and old section
in section 733.107, Florida Statutes. The presumption of undue 732.47(3), Florida Statutes. The rule sets forth the imperative need
influence implements public policy against abuse of fiduciary or for timely action and the inherent responsibility of a fiduciary to ef
confidential relationships and is therefore a presumption shifting the fect orderly succession. It further implies the inherent jurisdiction of
burden of proof under sections 90.301–90.304, Florida Statutes. the court to control by judicial overview the succession.
1988 Revision: New rule. 1988 Revision: Committee notes revised. Citation form changes
in committee notes.
1992 Revision: Citation form changes in committee notes.
1992 Revision: Editorial changes to clarify rule. Committee notes
2003 Revision: Committee notes revised. revised. Citation form changes in committee notes.
Notification under this rule or section 733.3101, Florida Statutes, Rule History
does not automatically affect the authority of the personal represen
tative to act. The personal representative may resign or interested 1977 Revision: No change in rule. Change in committee note to
persons or the court must act to remove the personal representative. conform to statutory renumbering.
RULE 5.320 FLORIDA PROBATE RULES RULE 5.340
This rule establishes the uniform requirement for an oath of faith 1992 Revision: Editorial changes. Committee notes revised.
ful performance of fiduciary duties within the permissiveness of sec Citation form changes in committee notes.
tion 733.401(1)(d), Florida Statutes. Should be taken together with
new rule 5.110, Resident Agent. 2003 Revision: Committee notes revised.
1988 Revision: Committee notes expanded. Citation form changes Statutory References
in committee notes.
§ 733.502, Fla. Stat. Resignation of personal representative.
1992 Revision: Editorial change. Committee notes revised.
§ 733.604, Fla. Stat. Inventory.
Citation form changes in committee notes.
§ 733.612(5), (22), (24), Fla. Stat. Transactions authorized for the
personal representative; exceptions.
2003 Revision: Committee notes revised.
§ 733.613, Fla. Stat. Personal representative’s right to sell real
property.
Rule References
§ 733.708, Fla. Stat. Compromise.
Fla. Prob. R. 5.110 Address designation for personal representa § 733.901, Fla. Stat. Final discharge.
tive or guardian; designation of resident agent and acceptance.
Fla. Prob. R. 5.235 Issuance of letters, bond. Rule References
(1) the personal representative learns of property Constitutional protected homestead real property is not necessar
not included in the original inventory; or ily a probatable asset. Disclosure on the inventory of real property
appearing to be constitutional protected homestead property informs
interested persons of the homestead issue.
(2) the personal representative learns that the es
timated value or description indicated in the original Interested persons are entitled to reasonable information about
inventory for any item is erroneous or misleading; or estate proceedings on proper request, including a copy of the inven
tory, an opportunity to examine appraisals, and other information
pertinent to their interests in the estate. The rights of beneficiaries
(3) the personal representative determines the es to information contained in estate inventories is limited by section
timated fair market value of an item whose value was 733.604(3), Florida Statutes. Inventories of the elective estate under
subdivision (f) affects a broader class of interested persons who may
described as unknown in the original inventory.
obtain information regarding the assets disclosed therein subject to
control by the court and the confidentiality afforded such inventories
(d) Service. The personal representative shall serve a under section 733.604(1) and (2).
copy of the inventory and all supplemental and amended
Rule History
inventories on the Department of Revenue, the surviv
ing spouse, each heir at law in an intestate estate, each 1980 Revision: Eliminated the time limit in requesting a copy
residuary beneficiary in a testate estate, and any other of the inventory by an interested person or in furnishing it by the
interested person who may request it in writing. The personal representative.
personal representative shall file proof of such service.
1984 (First) Revision: Extensive changes. Committee notes revised.
(e) Information. On reasonable request in writing the 1984 (Second) Revision: Subdivision (a) modified to clarify or
personal representative shall provide a beneficiary with re-insert continued filing requirement for inventory.
information to which the beneficiary is entitled by law.
1988 Revision: Editorial changes in (b) and (d). Committee notes
revised. Citation form changes in committee notes.
(f) Elective Share Proceedings. Upon entry of an
order determining the surviving spouse’s entitlement to 1992 Revision: Editorial changes. Committee notes revised.
the elective share, the personal representative shall file Citation form changes in committee notes.
an inventory of the property entering into the elective
2001 Revision: Subdivision (a) amended to conform to statutory
estate which shall identify the direct recipient, if any,
changes. Subdivision (d) amended to add requirement of filing of
of that property. The personal representative shall serve proof of service. Subdivision (e) amended to clarify personal repre
the inventory of the elective estate as provided in rule sentative’s duty to furnish explanation of how inventory values were
5.360. Service of an inventory of the elective estate on determined. Subdivision (f) added to require personal representative to
file inventory of property entering into elective share. Subdivision (g)
the Department of Revenue is not required. On reason
added to require verification of inventories. Committee notes revised.
able request in writing the personal representative shall
provide an interested person with a written explanation 2002 Revision: Subdivision (e) amended to conform to section
of how the inventory value for an asset was determined 733.604(3), Florida Statutes. Subdivision (f) amended to establish
and shall permit an interested person to examine ap procedures for interested persons to obtain information about assets
and values listed in the inventory of the elective estate. Committee
praisals on which the inventory values are based. notes revised.
(g) Verification. All inventories shall be verified by 2003 Revision: Committee notes revised.
the personal representative.
Constitutional Reference
Committee Notes
Art. X, § 4, Fla. Const.
Inventories of the elective estate under subdivision (f) shall be af
forded the same confidentiality as probate inventories. § 733.604(1) Statutory References
and (2), Fla. Stat.
§ 199.062(4), Fla. Stat. Annual tax information reports.
Inventories are still required to be filed. Once filed, however, § 732.401, Fla. Stat. Descent of homestead.
they are subject to the confidentiality provisions found in sections § 732.4015, Fla. Stat. Devise of homestead.
733.604(1) and (2), Florida Statutes. § 733.604, Fla. Stat. Inventory.
RULE 5.340 FLORIDA PROBATE RULES RULE 5.345
Fla. Prob. R. 5.041 Service of pleadings and papers. Inventories and entry records, once filed, shall be afforded the
Fla. Prob. R. 5.060 Request for notices and copies of pleadings. same confidentiality as probate inventories.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. Prob. R. 5.360 Elective share. If a safe-deposit box is opened pursuant to section 655.935 of the
Fla. Prob. R. 5.405 Proceedings to determine homestead real Florida Statutes, no written inventory of the box need be prepared
property. or filed.
Rule History
RULE 5.341. ESTATE INFORMATION
2003 Revision: New rule.
On reasonable request in writing, the personal repre
Statutory References
sentative shall provide an interested person with infor
mation about the estate and its administration. § 655.935, Fla. Stat. Search procedure on death of lessee.
§ 655.936, Fla. Stat. Delivery of safe-deposit box contents or
Committee Notes property held in safekeeping to personal representative.
§ 733.6065, Fla. Stat. Opening safe-deposit box.
This rule is not intended to overrule the holdings in In re Estate
of Shaw, 340 So. 2d 491 (Fla. 3d DCA 1976), and In re Estate of Rule References
Posner, 492 So. 2d 1093 (Fla. 3d DCA 1986).
Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.340 Inventory.
Rule History
(a) Filing. The personal representative shall file an (a) Applicability and Accounting Periods. This
inventory of the contents of the decedent’s safe-deposit rule applies to the interim accounting of any fiduciary
box within 10 days of the initial opening of the box by of a probate estate, the accounting of a personal rep
the personal representative or the personal representa resentative who has resigned or been removed, and
tive’s attorney of record. The inventory shall include a the accounting of a curator upon the appointment of
copy of the financial institution’s entry record for the a successor fiduciary. The fiduciary may elect to file
box from a date that is six months prior to the dece an interim accounting at any time, or the court may
dent’s date of death to the date of the initial opening by require an interim or supplemental accounting. The
the personal representative or the personal representa ending date of the accounting period for any account
tive’s attorney of record. ing to which this rule applies shall be as follows:
(b) Verification. Each person who was present at (1) For an interim accounting, any date selected
the initial opening must verify the contents of the box by the fiduciary, including a fiscal or calendar year, or
by signing a copy of the inventory under penalties of as may be determined by the court.
perjury.
(2) For the accounting of a personal representative
(c) Service. The personal representative shall serve who has resigned or has been removed, the date the
a copy of the inventory on the surviving spouse, each personal representative’s letters are revoked.
heir at law in an intestate estate, each residuary benefi
ciary in a testate estate, and any other interested person (3) For a curator who has been replaced by a suc
who may request it in writing. The personal representa cessor fiduciary, the date of appointment of the successor
tive shall file proof of such service. fiduciary.
RULE 5.345 FLORIDA PROBATE RULES RULE 5.346
(b) Notice of Filing. Notice of filing and a copy required for resigning or removed fiduciaries. The filing, notice, ob
of any accounting to which this rule applies shall be jection, and approval procedure is similar to that for final accounts.
served on all interested persons. The notice shall state Rule History
that objections to the accounting must be filed within
30 days from the date of service of notice. 1977 Revision: Change in (a) to authorize selection of fiscal year.
(c) Objection. Any interested person may file an 1980 Revision: Change in (d) of prior rule to require the notice
to state that the basis for an objection is necessary. Change in (e) of
objection to any accounting to which this rule applies prior rule to require any person filing an objection to set forth the
within 30 days from the date of service of notice on that basis of such objection.
person. Any objection not filed within 30 days from the
date of service shall be deemed abandoned. An objec 1984 Revision: Extensive changes. Committee notes revised.
tion shall be in writing and shall state with particularity
1988 Revision: Citation form change in committee notes.
the item or items to which the objection is directed and
the grounds upon which the objection is based. 1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.
(d) Service of Objections. The objecting party shall
2002 Revision: Implements procedures for interim accountings
serve a copy of the objection on the fiduciary filing the and accountings by resigning or removed fiduciaries. Committee
accounting and other interested persons. notes revised.
(e) Disposition of Objections and Approval of 2003 Revision: Committee notes revised.
Accountings. The court shall sustain or overrule any
2005 Revision: Verification requirement added as new (h).
objection filed as provided in this rule. If no objection Committee notes revised.
is filed, any accounting to which this rule applies shall
be deemed approved 30 days from the date of service Statutory References
of the accounting on interested persons.
§ 733.3101, Fla. Stat. Personal representative not qualified.
§ 733.501, Fla. Stat. Curators.
(f) Substantiating Papers. On reasonable written § 733.5035, Fla. Stat. Surrender of assets after resignation.
request, the fiduciary shall permit an interested person § 733.5036, Fla. Stat. Accounting and discharge following
to examine papers substantiating items in any account resignation.
ing to which this rule applies. § 733.508, Fla. Stat. Accounting and discharge of removed per
sonal representatives upon removal.
§ 733.509, Fla. Stat. Surrender of assets upon removal.
(g) Supplemental Accountings. The court, on its ch. 738, Fla. Stat. Principal and income.
own motion or on that of any interested person, may
require a fiduciary who has been replaced by a suc Rule References
cessor fiduciary to file a supplemental accounting, the
Fla. Prob. R. 5.020 Pleadings; verification; motions.
beginning date of which shall be the ending date of the
Fla. Prob. R. 5.122 Curators.
accounting as specified in subdivision (a) of this rule Fla. Prob. R. 5.150 Order requiring accounting.
and the ending date of which is the date of delivery of Fla. Prob. R. 5.330 Execution by personal representative.
all of the estate’s property to the successor fiduciary, or Fla. Prob. R. 5.346 Fiduciary accounting.
such other date as the court may order. Fla. Prob. R. 5.430 Resignation of personal representative.
Fla. Prob. R. 5.440 Proceedings for removal.
The personal representative is required to file a final accounting (1) all cash and property transactions since the
when administration is complete, unless filing is waived by interested
persons. Additionally, a fiduciary of a probate estate may elect, but is date of the last accounting or, if none, from the com
not required, to file interim accountings at any time. An accounting is mencement of administration, and
RULE 5.346 FLORIDA PROBATE RULES RULE 5.346
(2) a schedule of assets at the end of the account Attached as Appendix B to this rule are an explanation and com
ing period. mentary for each of the foregoing standards, which shall be consid
ered as a Committee Note to this rule.
(b) Accounting Standards. The following stan Accountings that substantially conform to the model formats are
dards are required for the accounting of all transactions acceptable. The model accounting format included in Appendix A is
occurring on or after January 1, 1994: only a suggested form.
Rule History
(1) Accountings shall be stated in a manner that
is understandable to persons who are not familiar with 1988 Revision: New rule.
practices and terminology peculiar to the administra
tion of estates and trusts. 1992 Revision: Editorial changes throughout. Rule changed to re
quire compliance with the Uniform Fiduciary Accounting Principles
and Model Formats for accounting of all transactions occurring on
(2) The accounting shall begin with a concise or after January 1, 1994. Committee notes revised. Citation form
summary of its purpose and content. changes in committee notes.
APPENDIX A
IN RE: ESTATE OF
PROBATE DIVISION
File Number
Deceased.
Division
From: , , Through: ,
The purpose of this accounting is to acquaint all interested persons with the transactions that have occurred during the period covered
by the accounting and the assets that remain on hand. It consists of a SUMMARY sheet and Schedule A showing all Receipts, Schedule B
showing all Disbursements, Schedule C showing all Distributions, Schedule D showing all Capital Transactions and Adjustments (the effect
of which are also reflected in other schedules, if appropriate), and Schedule E showing assets on hand at the end of the accounting period.
It is important that this accounting be carefully examined. Requests for additional information and any questions should be addressed to
the personal representative(s) or the attorneys for the personal representative(s), the names and addresses of whom are set forth below.
Under penalties of perjury, the undersigned personal representative(s) declare(s) that I (we) have read and examined this accounting and
that the facts and figures set forth in the Summary and the attached Schedules are true, to the best of my (our) knowledge and belief, and that
it is a complete report of all cash and property transactions and of all receipts and disbursements by me (us) as personal representative(s) of
the estate of
deceased, from __________________, _____ through __________________, ______.
Attorney
Name
Florida Bar No.
(address) (address)
[Print or Type Names Under All Signature Lines]
Telephone:
RULE 5.346 FLORIDA PROBATE RULES RULE 5.346
IN RE: ESTATE OF
PROBATE DIVISION
File Number
Deceased.
Division
From: , , Through: ,
SUMMARY
II. Receipts
Schedule A: $ $ $
III. Disbursements
Schedule B: $ $ $
IV. Distributions
Schedule C: $ $ $
ESTATE OF
From: , , Through: ,
SCHEDULE A Receipts
________________________________________________________________________________________________________________
Date Brief Description of Items Income Principal
Note: Schedule A should reflect only those items received during administration that are not shown on the inventory. Classification of items
as income or principal is to be in accordance with the provisions of the Florida Principal and Income Act, Chapter 738, Florida Statutes.
Entries involving the sale of assets or other adjustments to the carrying values of assets are to be shown on Schedule D, and not on
Schedule A.
RULE 5.346 FLORIDA PROBATE RULES RULE 5.346
ESTATE OF
From: , , Through: ,
SCHEDULE B Disbursements
________________________________________________________________________________________________________________
Date Brief Description of Items Income Principal
Note: Schedule B should reflect only those items paid out during the accounting period. Classification of disbursements as income or
principal is to be in accordance with the provisions of the Florida Principal and Income Act, Chapter 738, Florida Statutes.
Entries involving the purchase of assets or adjustments to the carrying values of assets are to be shown on Schedule D, and not on
Schedule B.
RULE 5.346 FLORIDA PROBATE RULES RULE 5.346
ESTATE OF
From: , , Through: ,
SCHEDULE C Distributions
________________________________________________________________________________________________________________
Date Brief Description of Items Income Principal
Note: Schedule C should reflect only those items or amounts distributed to beneficiaries during the accounting period. Assets distributed
should be shown at their inventory or adjusted carrying values. Classification of distributions as income or principal is to be in accordance
with the provisions of the Florida Principal and Income Act, Chapter 738, Florida Statutes.
Entries involving adjustments to the carrying values of assets are to be shown on Schedule D, and not on Schedule C.
RULE 5.346 FLORIDA PROBATE RULES RULE 5.346
ESTATE OF
From: , , Through: ,
_______________________________
Note: Schedule D should reflect all purchases and sales of assets and any adjustments to the carrying values of any assets.
Entries reflecting sales should show the inventory or adjusted carrying values, the costs and expenses of the sale, and the net proceeds
received. The net gain or loss should be extended in the appropriate column on the right side of Schedule D.
Entries reflecting purchases should reflect the purchase price, any expenses of purchase or other adjustments to the purchase price, and
the total amount paid. Presumably no gain or loss would be shown for purchases.
Entries reflecting adjustments in capital assets should explain the change (such as a stock split) and the net gain or loss should be
shown in the appropriate column on the right side of Schedule D.
The NET gain or loss should be entered in the Principal column of the Summary.
RULE 5.346 FLORIDA PROBATE RULES RULE 5.346
ESTATE OF
From: , , Through: ,
(Indicate where held and legal description, certificate numbers or other identification.)
________________________________________________________________________________________________________________
Estimated
Current Value Carrying Value
________________________________________
CASH:
_ ___________________
CASH TOTAL $
TOTAL ASSETS (must agree with the Total for Item VI on Summary) $
Note: Schedule E should be a complete list of all assets on hand reflecting inventory values for each item, adjusted in accordance with any
appropriate entries on Schedule D.
Current market values for any assets that are known to be different from the inventory or carrying values as of the close of the ac
counting period should be shown in the column marked “Current Value.” The total inventory or adjusted carrying value (not Current Value)
must agree with the Total for Item VI on Summary.
RULE 5.346 FLORIDA PROBATE RULES RULE 5.346
APPENDIX B It is assumed that the parties would also have enough informa
tion from other sources to understand the nature of their relationship
UNIFORM FIDUCIARY ACCOUNTING PRINCIPLES to the fund (e.g., residuary legatee, life tenant, remainderman), the
function of the account, and the obligation of the fiduciary to supply
I. ACCOUNTS SHOULD BE STATED IN A MANNER THAT IS further relevant information upon request. It is also assumed that no
UNDERSTANDABLE BY PERSONS WHO ARE NOT FAMILIAR tice will be given of any significant procedural considerations such
WITH PRACTICES AND TERMINOLOGY PECULIAR TO THE as limitation on the time within which objections must be presented.
ADMINISTRATION OF ESTATES AND TRUSTS. This would normally be provided by prior or contemporaneous
memoranda, correspondence, or discussions.
Commentary: In order for an account to fulfill its basic function of
communication, it is essential that it be stated in a manner that recog A summary of the account shall also be presented at the outset.
nizes that the interested parties are not usually familiar with fiduciary This summary, organized as a table of contents, shall indicate the
accounts. It is neither practical nor desirable to require that accounts order of the details presented in the account and shall show separate
be tailored to meet individual disabilities of particular parties but any totals for the aggregate of the assets on hand at the beginning of
account should be capable of being understood by a person of aver the accounting period; transactions during the period; and the assets
age intelligence, literate in English, and familiar with basic financial remaining on hand at the end of the period. Each entry in the sum
terms who has read it with care and attention. mary shall be supported by a schedule in the account that provides
the details on which the summary is based.
Problems arising from terminology or style are usually a reflec
tion of the fact that people who become versed in a particular form III. A FIDUCIARY ACCOUNT SHALL CONTAIN SUFFICIENT
of practice tend to forget that terms which are familiar and useful INFORMATION TO PUT THE INTERESTED PARTIES ON
to them may convey nothing to someone else or may even be af NOTICE AS TO ALL SIGNIFICANT TRANSACTIONS AFFECT
firmatively misleading. For example, the terms “debit” and “credit” ING ADMINISTRATION DURING THE ACCOUNTING PERIOD.
are generally incomprehensible to people with no knowledge of
bookkeeping and many people who are familiar with them in other Commentary: The presentation of the information account shall
contexts would assume that in the context of fiduciary accounting, allow an interested party to follow the progress of the fiduciary’s
the receipt of an item is a “credit” to the fund rather than a “debit” administration of assets during the accounting period.
to the fiduciary.
An account is not complete if it does not itemize, or make refer
While the need for concise presentation makes a certain amount of ence to, assets on hand at the beginning of the accounting period.
abbreviation both acceptable and necessary, uncommon abbreviation
of matters essential to an understanding of the account should be Illustration:
avoided or explained.
3.1 The first account for a decedent’s estate or a trust may detail the
No position is taken for or against the use of direct print-outs from items received by the fiduciary and for which the fiduciary is respon
machine accounting systems. The quality of the accounts produced sible. It may refer to the total amount of an inventory filed elsewhere
by these systems varies widely in the extent to which they can be or assets described in a schedule attached to a trust agreement.
understood by persons who are not familiar with them. To endorse or
object to a direct print-out because it is produced by machine from Instead of retyping the complete list of assets in the opening bal
previously stored data would miss the essential point by focusing ance, the preparer may prefer to attach as an exhibit a copy of the
attention upon the manner of preparation rather than the product. inventory, closing balance from the last account, etc., as appropriate,
or may refer to them if previously provided to the interested parties
II. A FIDUCIARY ACCOUNT SHALL BEGIN WITH A CONCISE who will receive it.
SUMMARY OF ITS PURPOSE AND CONTENT.
Transactions shall be described in sufficient detail to give interest
Commentary: Very few people can be expected to pay much at ed parties notice of their purpose and effect. It should be recognized
tention to a document unless they have some understanding of its that too much detail may be counterproductive to making the account
general purpose and its significance to them. Even with such an understandable. In accounts covering long periods or dealing with
understanding, impressions derived from the first page or two will extensive assets, it is usually desirable to consolidate information.
often determine whether the rest is read. The use that is made of these For instance, where income from a number of securities is being
pages is therefore of particular significance. accounted for over a long period of time, a statement of the total
dividends received on each security with appropriate indication of
The cover page should disclose the nature and function of the changes in the number of shares held will be more readily under
account. While a complete explanation of the significance of the ac standable and easier to check for completeness than a chronological
count and the effect of its presentation upon the rights of the parties listing of all dividends received.
is obviously impractical for inclusion at this point, there should be
at least a brief statement identifying the fiduciary and the subject Although detail should generally be avoided for routine trans
matter, noting the importance of examining the account and giving actions, it will often be necessary to proper understanding of an
an address where more information can be obtained. event that is somewhat out of the ordinary.
RULE 5.346 FLORIDA PROBATE RULES RULE 5.346
3.4 An extraordinary allocation between principal and income The value of assets at the beginning and ending of each account
such as apportionment of proceeds of property acquired on fore ing period is necessary information for the evaluation of investment
closure should be separately stated and explained. performance. Therefore, the account should show, or make reference
to, current values at the start of the period for all assets whose carry
3.5 Computation of a formula marital deduction gift involving ing values were established in a prior accounting period.
non-probate assets should be explained.
Illustrations:
IV. A FIDUCIARY ACCOUNT SHALL CONTAIN TWO VALUES,
THE ASSET ACQUISITION VALUE OR CARRYING VALUE,
4.4 The opening balance of the first account of a testamentary
AND CURRENT VALUE.
trustee will usually contain assets received in kind from the executor.
Unless the carrying value was written up at the time of distribution
Commentary: In order for transactions to be reported on a consis
(e.g., 4.2 or 4.3 supra) these assets will be carried at a value estab
tent basis, an appropriate carrying value for assets must be chosen
lished during the executor’s administration. The current value at the
and employed consistently.
beginning of the accounting period should also be shown.
The carrying value of an asset should reflect its value at the time it
is acquired by the fiduciary (or a predecessor fiduciary). When such 4.5 An executor’s first account will normally carry assets at inven
a value is not precisely determinable, the figure used should reflect a tory (date of death) values or costs. No separate listing of current
thoughtful decision by the fiduciary. For assets owned by a decedent, values at the beginning of the accounting period is necessary.
inventory values or estate tax values — generally reflective of date
of death — would be appropriate. Assets received in kind by a trustee Current values should also be shown for all assets on hand at the
from a settlor of an inter vivos trust should be carried at their value close of the accounting period. The date on which current values are
at the time of receipt. For assets purchased during the administration determined shall be stated and shall be the last day of the accounting
of the fund, cost would normally be used. Use of Federal income tax period, or a date as close thereto as reasonably possible.
basis for carrying value is acceptable when basis is reasonably repre
sentative of real values at the time of acquisition. Use of tax basis as Current values should be shown in a column parallel to the column
a carrying value under other circumstances could be affirmatively of carrying values. Both columns should be totalled.
misleading to beneficiaries and therefore is not appropriate.
In determining current values for assets for which there is no read
In the Model Account, carrying value is referred to as “fiduciary ily ascertainable current value, the source of the value stated in the
acquisition value.” The Model Account establishes the initial carrying
account shall be explained. The fiduciary shall make a good faith ef
value of assets as their value at date of death for inventoried assets,
fort to determine realistic values but should not be expected to incur
date of receipt for subsequent receipts, and cost for investments.
expenses for appraisals or similar costs when there is no reason to
expect that the resulting information will be of practical consequence
Carrying value would not normally be adjusted for depreciation. to the administration of the estate or the protection of the interests
of the parties.
Except for adjustments that occur normally under the account
ing system in use, carrying values should generally be continued Illustrations:
unchanged through successive accounts and assets should not be
arbitrarily “written up” or “written down.” In some circumstances,
4.6 When an asset is held under circumstances that make it clear
however, with proper disclosure and explanation, carrying value
that it will not be sold (e.g., a residence held for use of a beneficiary)
may be adjusted.
the fiduciary’s estimate of value would be acceptable in lieu of an
appraisal.
Illustrations:
4.7 Considerations such as a pending tax audit or offer of the
4.1 Carrying values based on date of death may be adjusted to property for sale may indicate the advisability of not publishing the
reflect changes on audit of estate or inheritance tax returns. fiduciary’s best estimate of value. In such circumstances, a statement
that value was fixed by some method such as “per company books,”
4.2 Where appropriate under applicable local law, a successor “formula under buy-sell agreement,” or “300% of assessed value”
fiduciary may adjust the carrying value of assets to reflect values at would be acceptable, but the fiduciary would be expected to provide
the start of that fiduciary’s administration. further information to interested parties upon request.
RULE 5.346 FLORIDA PROBATE RULES RULE 5.350
V. GAINS AND LOSSES INCURRED DURING THE ACCOUNTING (1) a statement of the nature of that business or
PERIOD SHALL BE SHOWN SEPARATELY IN THE SAME venture;
SCHEDULE.
Commentary: Each transaction involving the sale or other disposi (2) a schedule of specific assets and liabilities;
tion of securities during the accounting period shall be shown as a
separate item in one combined schedule of the account indicating the (3) the reasons for continuation;
transaction, date, explanation, and any gain or loss.
(4) the proposed form and times of accounting for
Although gains and losses from the sale of securities can be shown
separately in accounts, the preferred method of presentation is to
that business or venture;
present this information in a single schedule. Such a presentation
provides the most meaningful description of investment performance (5) the period for which the continuation is re
and will tend to clarify relationships between gains and losses that quested; and
are deliberately realized at the same time.
(6) any other information pertinent to the petition.
VI. THE ACCOUNT SHALL SHOW SIGNIFICANT TRANS
ACTIONS THAT DO NOT AFFECT THE AMOUNT FOR WHICH
THE FIDUCIARY IS ACCOUNTABLE. (c) Order. If the continuation is authorized, the order
shall state:
Commentary: Transactions such as the purchase of an investment,
receipt of a stock split, or change of a corporate name do not alter the (1) the period for which that business or venture is
total fund for which a fiduciary is accountable but must be shown in
order to permit analysis and an understanding of the administration
to continue;
of the fund. These can be best shown in information schedules.
(2) the particular powers of the personal represen
One schedule should list all investments made during the account tative in the continuation of that business or venture;
ing period. It should include those subsequently sold as well as those and
still on hand. Frequently the same money will be used for a series of
investments. Therefore, the schedule should not be totalled in order
to avoid giving an exaggerated idea of the size of the fund.
(3) the form and frequency of accounting by that
business or venture.
A second schedule (entitled “Changes in Investment Holdings” in
the Model Account) should show all transactions affecting a particular (d) Petition by Interested Person. Any interested
security holding, such as purchase of additional shares, partial sales, person, at any time, may petition the court for an order
stock splits, change of corporate name, divestment distributions,
regarding the operation of, accounting for, or termina
etc. This schedule, similar to a ledger account for each holding, will
reconcile opening and closing entries for particular holdings, explain tion of an unincorporated business or venture, and the
changes in carrying value, and avoid extensive searches through the court shall enter an order thereon.
account for information scattered among other schedules.
Committee Notes
RULE 5.350. CONTINUANCE OF
Rule History
UNINCORPORATED BUSINESS
OR VENTURE 1975 Revision: New rule. § 733.612, Fla. Stat.
1988 Revision: Editorial change in caption of (b). Committee 2003 Revision: Committee notes revised.
notes revised. Citation form changes in committee notes.
2007 Revision: Committee notes revised.
1992 Revision: Committee notes revised. Citation form changes
in committee notes. Statutory References
within the later of the time provided by law or 30 days objection on the surviving spouse and the personal rep
from service of the order and promptly serve a copy of resentative. If an objection is served, the personal rep
the election on the personal representative in the man resentative shall promptly serve a copy of the objection
ner provided for service of formal notice. on all other interested persons who have not previously
been served with a copy of the objection.
(b) Procedure for Election.
(c) Determination of Entitlement.
(1) Extension. Within the period provided by law to
make the election, the surviving spouse or an attorney-in- (1) No Objection Served. If no objection to the
fact or guardian of the property of the surviving spouse election is timely served, the court shall enter an order
may petition the court for an extension of time for mak determining the spouse’s entitlement to the elective
ing an election or for approval to make the election. After share.
notice and hearing the court for good cause shown may
extend the time for election. If the court grants the petition (2) Objection Served. If an objection to the elec
for an extension, the election must be filed within the time tion is timely served, the court shall determine the sur
allowed by the extension. viving spouse’s entitlement to the elective share after
notice and hearing.
(2) Withdrawal of Election. The surviving spouse,
an attorney-in-fact, a guardian of the property of the surviv (d) Procedure to Determine Amount of Elective
ing spouse, or the personal representative of the surviving Share and Contribution.
spouse’s estate may withdraw the election within the time
provided by law.
(1) Petition by Personal Representative. After entry
of the order determining the surviving spouse’s entitlement
(3) Service of Notice. Upon receipt of an election
to the elective share, the personal representative shall file
the personal representative shall serve a notice of elec
and serve a petition to determine the amount of the elective
tion within 20 days following service of the election,
share. The petition shall
together with a copy of the election, on all interested
persons in the manner provided for service of formal
notice. The notice of election shall indicate the names (A) give the name and address of each direct
and addresses of the attorneys for the surviving spouse recipient known to the personal representative;
and the personal representative and shall state that:
(B) describe the proposed distribution of assets
(A) persons receiving a notice of election may to satisfy the elective share, and the time and manner
be required to contribute toward the satisfaction of the of distribution; and
elective share;
(C) identify those direct recipients, if any, from
(B) objections to the election must be served whom a specified contribution will be required and
within 20 days after service of the copy of the notice of state the amount of contribution sought from each.
election; and
(2) Service of Inventory. The inventory of the
(C) if no objection to the election is timely elective estate required by rule 5.340, together with the
served, an order determining the surviving spouse’s en petition, shall be served within 60 days after entry of
titlement to the elective share may be granted without the order determining entitlement to the elective share
further notice. on all interested persons in the manner provided for
service of formal notice.
(4) Objection to Election. Within 20 days after
service of the notice of election, an interested person (3) Petition by Spouse. If the personal repre
may serve an objection to the election which shall state sentative does not file the petition to determine the
with particularity the grounds on which the objection amount of the elective share within 90 days from rendi
is based. The objecting party shall serve copies of the tion of the order of entitlement, the electing spouse or
RULE 5.360 FLORIDA PROBATE RULES RULE 5.360
(A) No Objection Served. If no objection is Counsel’s attention is directed to Fla. Ethics Opinion 76-16, dated
April 4, 1977, for guidance regarding the duties of an attorney with
timely served to the petition to determine the amount respect to spousal rights.
of the elective share, the court shall enter an order on
the petition. Rule History
(B) Objection Served. If an objection is timely 1984 Revision: Extensive changes. Clarifies information to be in
cluded in a petition for elective share filed by a personal representa
served to the petition to determine the amount of the tive and specifies information to be included in an order determining
elective share, the court shall determine the amount elective share. Committee notes revised and expanded.
of the elective share and contribution after notice and
hearing. 1988 Revision: Extensive changes. A new procedure has been
added providing for optional service of a notice of election together
with a copy of the election and a procedure to expose objections to
(6) Order Determining Amount of Elective and determine right to entitlement, separate from the pre-existing
Share and Contribution. The order shall: procedure of determination of amount and setting aside. Subdivisions
(c) and (d) represent rule implementation of procedure in statute.
(A) set forth the amount of the elective share; Committee notes revised and expanded. Citation form changes in
committee notes.
(B) identify the assets to be distributed to the sur 1992 Revision: Editorial change. Committee notes revised. Cita
viving spouse in satisfaction of the elective share; and tion form changes in committee notes.
(C) if contribution is necessary, specify the 2001 Revision: Entire rule rewritten. Committee notes revised.
amount of contribution for which each direct recipient 2003 Revision: Committee notes revised.
is liable.
2005 Revision: Subdivision (a) amended to require service in the
(e) Relief from Duty to Enforce Contribution. A manner of formal notice of the notice of election. Subdivision (b)
petition to relieve the personal representative from the (3) amended to provide time period for personal representative to
service notice of election on interested persons, and title revised.
duty to enforce contribution shall state the grounds on Subdivision (d)(2) amended to provide time limit and service re
which it is based and notice shall be served on inter quirement for elective estate inventory and petition for determination
ested persons. of amount of elective share. Committee notes revised.
RULE 5.360 FLORIDA PROBATE RULES RULE 5.370
Statutory References reasons for the sale, a description of the real property
sold or proposed to be sold, and the price and terms of
§ 732.201, Fla. Stat. Right to elective share.
§ 732.2025, Fla. Stat. Definitions. the sale.
§ 732.2035, Fla. Stat. Property entering into elective estate.
§ 732.2045, Fla. Stat. Exclusions and overlapping application. (b) Order. If the sale is authorized or confirmed, the
§ 732.2055, Fla. Stat. Valuation of the elective estate.
order shall describe the real property. An order autho
§ 732.2065, Fla. Stat. Amount of the elective share.
§ 732.2075, Fla. Stat. Sources from which elective share payable; rizing a sale may provide for the public or private sale
abatement. of the real property described therein, in parcels or as a
§ 732.2085, Fla. Stat. Liability of direct recipients and beneficiaries. whole. An order authorizing a private sale shall specify
§ 732.2095, Fla. Stat. Valuation of property used to satisfy elec
the price and terms of the sale. An order authorizing a
tive share.
§ 732.2125, Fla. Stat. Right of election; by whom exercisable. public sale shall specify the type of notice of sale to be
§ 732.2135, Fla. Stat. Time of election; extensions; withdrawal. given by the personal representative.
§ 732.2145, Fla. Stat. Order of contribution; personal representa
tive’s duty to collect contribution. Committee Notes
§ 733.604, Fla. Stat. Inventory.
Petitions under the rule are governed by section 733.610, Florida
Rule References Statutes, under which sales are voidable by interested persons if
there was a conflict of interest without full disclosure and consent,
Fla. Prob. R. 5.025 Adversary proceedings. unless the will or contract entered into by the decedent authorized
Fla. Prob. R. 5.040 Notice. the transaction or it was approved by the court after notice to all
Fla. Prob. R. 5.041 Service of pleadings and papers. interested persons, and by section 733.609, Florida Statutes, involv
Fla. Prob. R. 5.340 Inventory. ing bad faith actions by the personal representative. Note provision
Fla. R. App. P. 9.020(h) Definitions. for attorneys’ fees.
Rule History
RULE 5.365. PETITION FOR DOWER
1984 Revision: Extensive changes. Notice of hearing on any peti
A widow may file an extraordinary petition for as tion concerning sale of real property is required by statute unless
signment of dower. The petition shall be filed in the waived. The requirement to record a certified copy of the order ap
proving sale of real estate in each county where the real property
court of each county where the widow’s husband had
or any part thereof is situated has been deleted. Committee notes
conveyed land in which the widow had not relinquished revised and expanded.
her right of dower before October 1, 1973. Formal no
tice shall be served on persons adversely affected. The 1988 Revision: Committee notes expanded. Citation form changes
proceedings shall be as similar as possible to those for in committee notes.
merly existing for the ordinary assignment of dower. 1992 Revision: Committee notes revised. Citation form changes
in committee notes.
Committee Notes
1996 Revision: Editorial changes.
Rule History
Statutory References
2001 Revision: Derived from former rule 5.360(e).
§ 733.609, Fla. Stat. Improper exercise of power; breach of fi
Statutory Reference duciary duty.
§ 733.610, Fla. Stat. Sale, encumbrance or transaction involving
§ 732.111, Fla. Stat. Dower and curtesy abolished. conflict of interest.
§ 733.613(1), Fla. Stat. Personal representative’s right to sell real
property.
RULE 5.370. SALES OF REAL PROPERTY § 733.810, Fla. Stat. Distribution in kind; valuation.
WHERE NO POWER
CONFERRED Rule References
1992 Revision: Editorial changes. Committee notes revised. Citation to change the effect of the statute from which it was derived but has
form changes in committee notes. been reformatted to conform with the structure of these rules. It is not
intended to create a new procedure or modify an existing procedure.
2002 Revision: Subdivision (c) added to implement procedure
formerly found in section 733.105(2), Florida Statutes. Committee Rule History
notes revised.
1988 Revision: New rule.
2003 Revision: Change in subdivision (c) to replace “heirs or devi
sees” with “beneficiaries” to incorporate term used in section 733.105, 1992 Revision: Editorial change. Committee notes revised. Citation
Florida Statutes. Committee notes revised. form changes in committee notes.
2007 Revision: Committee notes revised. 2003 Revision: Committee notes revised.
ch. 49, Fla. Stat. Constructive service of process. § 732.107, Fla. Stat. Escheat.
§ 731.201(2), (23), Fla. Stat. General definitions. § 733.105, Fla. Stat. Determination of beneficiaries.
§ 731.301, Fla. Stat. Notice. § 733.816, Fla. Stat. Disposition of unclaimed property held by
§ 733.105, Fla. Stat. Determination of beneficiaries. personal representatives.
Fla. Prob. R. 5.025 Adversary proceedings. Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice. Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and papers. Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.120 Administrator ad litem and guardian ad litem. Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.205(a)(5) Filing evidence of death. Fla. Prob. R. 5.385 Determination of beneficiaries and shares.
RULE 5.400. DISTRIBUTION AND discharge or final accounting; and also that within 90 days
DISCHARGE after filing of the objection, a notice of hearing thereon
must be served or the objection is abandoned; and
(a) Petition for Discharge; Final Accounting. A
personal representative who has completed admin (7) that objections, if any, shall be in writing and
istration except for distribution shall file a final ac shall state with particularity the item or items to which
counting and a petition for discharge including a plan the objection is directed and the grounds on which the
of distribution. objection is based.
(3) that the personal representative has paid or made (d) Distribution. The personal representative shall
provision for taxes and expenses of administration; promptly distribute the estate property in accordance
with the plan of distribution, unless objections are filed
(4) showing the amount of compensation paid or as provided in these rules.
to be paid to the personal representative, attorneys, ac
countants, appraisers, or other agents employed by the (e) Discharge. On receipt of evidence that the estate
personal representative and the manner of determining has been fully administered and properly distributed,
that compensation; the court shall enter an order discharging the personal
representative and releasing the surety on any bond.
(5) showing a plan of distribution which shall
include: Committee Notes
(A) a schedule of all prior distributions; The rule establishes a procedure for giving notice and serving the
final accounting, petition for discharge, and plan of distribution to
all interested persons prior to distribution and discharge. No distinc
(B) the property remaining in the hands of the tion is made in plans of distribution which distribute estate property
personal representative for distribution; in kind among multiple residual beneficiaries proportionate to their
respective interests and those which include equalizing adjustments
(C) a schedule describing the proposed distri in cash or property and which do not make prorated distribution.
If disclosure of the compensation or disclosure of the manner of
bution of the remaining assets; and determining the compensation in the petition for discharge is to be
waived, the form of waiver must conform to rule 5.180(b).
(D) the amount of funds retained by the personal
representative to pay expenses that are incurred in the Rule History
distribution of the remaining assets and termination of
1980 Revision: Change in prior (a)(6) to require that an objection
the estate administration; set forth the basis on which it is being made.
(6) that any objections to the accounting, the com 1984 Revision: This rule has been substantially revised. Portions
of the prior rule are now incorporated in rules 5.400 and 5.401. The
pensation paid or proposed to be paid, or the proposed
committee has included the procedure for filing and serving of objec
distribution of assets must be filed within 30 days tions to the final accounting, petition for discharge, plan of distribu
from the date of service of the last of the petition for tion, or compensation in rule 5.401.
RULE 5.400 FLORIDA PROBATE RULES RULE 5.401
1988 Revision: Subdivision (b)(1) is deleted to avoid duplication the items to which the objections are directed and must
with rule 5.346. Subdivision (c) is amended to add the 12-month state the grounds on which the objections are based.
time specification of section 733.901(1), Florida Statutes. Committee
notes revised. Citation form changes in committee notes.
(c) Service. Copies of the objections shall be served
1992 Revision: Subdivision (b)(5)(D) is added. Editorial changes. by the objector on the personal representative and inter
Committee notes revised. Citation form changes in committee notes. ested persons not later than 30 days after the last date on
which the petition for discharge or final accounting was
1996 Revision: Addition in (a)(4) of specific attorney fee compensa
served on the objector.
tion disclosure requirements found in § 733.6171(9), Florida Statutes,
and expanded to cover all compensation. Committee notes revised.
(d) Hearing on Objections. Any interested person
2003 Revision: Committee notes revised. may set a hearing on the objections. Notice of the hear
ing shall be given to all interested persons. If a notice of
2005 Revision: Subdivision (f) deleted to avoid duplication with hearing on the objections is not served within 90 days of
rule 5.180.
filing of the objections, the objections shall be deemed
2006 Revision: Committee notes revised. abandoned and the personal representative may make
distribution as set forth in the plan of distribution.
2007 Revision: Committee notes revised.
(e) Order on Objections. The court shall sustain
Statutory References or overrule any objections to the petition for discharge
and final accounting and shall determine a plan of dis
§ 731.201(12), (23), Fla. Stat. General definitions.
§ 731.302, Fla. Stat. Waiver and consent by interested person.
tribution.
§ 733.809, Fla. Stat. Right of retainer.
§ 733.810, Fla. Stat. Distribution in kind; valuation. (f) Discharge. On receipt of evidence that the estate
§ 733.811, Fla. Stat. Distribution; right or title of distributee. has been distributed according to the plan determined
§ 733.812, Fla. Stat. Improper distribution or payment; liability of by the court and the claims of creditors have been paid
distributee or payee.
or otherwise disposed of, the court shall enter an order
§ 733.901, Fla. Stat. Final discharge.
discharging the personal representative and releasing
Rule References the surety on any bond.
Rule References Fla. Prob. R. 5.404 Notice of taking possession of protected home
stead.
Fla. Prob. R. 5.020 Pleadings; verification; motions. Fla. Prob. R. 5.405 Proceedings to determine protected homestead
Fla. Prob. R. 5.040 Notice. real property.
Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.180 Waiver and consent.
RULE 5.403. PROCEEDINGS TO
Fla. Prob. R. 5.400 Distribution and discharge. DETERMINE AMOUNT OF LIEN
ON PROTECTED HOMSTEAD
RULE 5.402. NOTICE OF LIEN ON
PROTECTED HOMESTEAD (a) Petition. A personal representative or interested
person may file a petition to determine the amount of
(a) Filing. If the personal representative has re any lien on protected homestead.
corded a notice of lien on protected homestead, the
personal representative shall file a copy of the recorded (b) Contents. The petition shall be verified by the
notice in the probate proceeding. petitioner and shall state:
(b) Contents. The notice of lien shall contain: (1) the name and address of the personal repre
sentative and the personal representative’s attorney;
(1) the name and address of the personal repre
(2) the interest of the petitioner;
sentative and the personal representative’s attorney;
(3) the legal description of the real property;
(2) the legal description of the real property;
(4) to the extent known, the name and address
(3) to the extent known, the name and address
of each person appearing to have an interest in the
of each person appearing to have an interest in the
property; and
property; and
(5) to the extent known, the amounts paid or
(4) a statement that the personal representative
obligated to be paid by the personal representative
has expended or is obligated to expend funds to preserve,
to preserve, maintain, insure, or protect the protected
maintain, insure, or protect the property and that the lien homestead, including fees and costs.
stands as security for recovery of those expenditures and
obligations incurred, including fees and costs.
(c) Service. The petition shall be served on inter
ested persons by formal notice.
(c) Service. A copy of the recorded notice of lien
shall be served on interested persons in the manner Committee Notes
provided for service of formal notice.
Rule History
Committee Notes
2005 Revision: New rule.
Rule History
Statutory References
2005 Revision: New rule.
§ 733.608, Fla. Stat. General power of the personal representative.
Statutory References
Rule References
§ 733.608, Fla. Stat. General power of the personal representative.
Fla. Prob. R. 5.040 Notice.
Rule References Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.402 Notice of lien on protected homestead.
Fla. Prob. R. 5.040 Notice. Fla. Prob. R. 5.404 Notice of taking possession of protected home
Fla. Prob. R. 5.041 Service of pleadings and papers. stead.
Fla. Prob. R. 5.403 Proceedings to determine amount of lien on Fla. Prob. R. 5.405 Proceedings to determine protected homestead
protected homestead. real property.
RULE 5.404 FLORIDA PROBATE RULES RULE 5.405
RULE 5.404. NOTICE OF TAKING Fla. Prob. R. 5.403 Proceedings to determine amount of lien on
POSSESSION OF PROTECTED protected homestead.
Fla. Prob. R. 5.405 Proceedings to determine protected homestead
HOMESTEAD real property.
(1) a legal description of the property; (b) Contents. The petition shall be verified by the
petitioner and shall state:
(2) a statement of the limited purpose for preserving,
insuring, and protecting it for the heirs or devisees pend (1) the date of the decedent’s death;
ing a determination of the homestead status;
(2) the county of the decedent’s domicile at the
(3) the name and address of the personal represen time of death;
tative and the personal representative’s attorney;
(3) the name of the decedent’s surviving spouse
(4) if known, the location, date, and time the peti and the names and dates of birth of the decedent’s sur
tion to determine homestead status will be heard, and viving lineal descendants;
(5) if the personal representative is in possession (4) a legal description of the property owned by
when the notice is filed, the date the personal represen the decedent on which the decedent resided; and
tative took possession.
(5) any other facts in support of the petition.
(c) Service of Notice. The notice shall be served
in the manner provided for service of formal notice on (c) Order. The court’s order on the petition shall
interested persons and on any person in actual posses describe the real property and determine whether any
sion of the property. of the real property constituted the protected home
stead of the decedent. If the court determines that any
Committee Notes of the real property was the protected homestead of the
decedent, the order shall identify the person or persons
Rule History
entitled to the protected homestead real property and
2002 Revision: New rule. define the interest of each.
Fla. Prob. R. 5.402 Notice of lien on protected homestead. 1984 Revision: New rule.
RULE 5.405 FLORIDA PROBATE RULES RULE 5.407
1988 Revision: Editorial change in (a). Subdivision (b)(4) amend decedent’s children entitled by law to the exempt prop
ed to conform to constitutional change. Committee notes revised. erty and the dates of birth of those who are minors.
Citation form change in committee notes.
1992 Revision: Editorial change. Committee notes revised. Citation (c) Order. The court shall determine each item of
form changes in committee notes. exempt property and its value and order the surrender
of that property to the persons entitled to it.
1996 Revision: Subdivision (c) amended to require description of
real property that is the subject of the petition, description of any
Committee Notes
homestead property, and definition of specific interests of persons
entitled to homestead real property.
This rule establishes the procedure by which the personal repre
sentative or any interested person may petition the court for determi
2002 Revision: Replaces “homestead” with “protected homestead”
nation of exempt property in accordance with article X, section 4 of
throughout to conform to addition of term in section 731.201(29),
the Florida Constitution and section 732.402, Florida Statutes.
Florida Statutes. Committee notes revised.
Section 732.402, Florida Statutes, specifies the time within which
2003 Revision: Committee notes revised.
the petition to determine exempt property must be filed, within 4
months after the date of service of the notice of administration, un
2007 Revision: Committee notes revised.
less extended as provided in the statute.
Constitutional Reference
Rule History
Art. X, § 4, Fla. Const.
1984 Revision: New rule.
Statutory References
1988 Revision: Subdivision (a) revised to reflect editorial changes
§ 731.104, Fla. Stat. Verification of documents. and to require verification. Subdivision (b)(1) revised to require the
§ 731.201(31), Fla. Stat. General definitions. basis for asserting exempt property status. Subdivision (b)(2) added
§ 732.401, Fla. Stat. Descent of homestead. the requirement of stating addresses of those entitled to exempt
§ 732.4015, Fla. Stat. Devise of homestead. property. Subdivision (c) revised to reflect editorial changes and to
§ 733.607, Fla. Stat. Possession of estate. require determination of the value of each item of exempt property.
§ 733.608, Fla. Stat. General power of the personal representative. Committee notes revised.
Rule References 1992 Revision: Committee notes revised. Citation form changes
in committee notes.
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice. 1996 Revision: Editorial changes in rule to conform to similar
Fla. Prob. R. 5.041 Service of pleadings and papers. language in rule 5.405. Committee notes revised.
Fla. Prob. R. 5.205(a)(6) Filing evidence of death.
Fla. Prob. R. 5.340 Inventory. 2003 Revision: Committee notes revised.
Fla. Prob. R. 5.404 Notice of taking possession of protected home
stead. Statutory References
(1) describe the property and the basis on which it RULE 5.407. PROCEEDINGS TO DETERMINE
is claimed as exempt property; and FAMILY ALLOWANCE
(2) state the name and address of the decedent’s (a) Petition. An interested person may file a peti
surviving spouse or, if none, the names and addresses of tion to determine family allowance.
RULE 5.407 FLORIDA PROBATE RULES RULE 5.420
(b) Contents. The petition shall be verified by the for the last 60 days of the last illness together with ac
petitioner and shall: companying statements or payment receipts; and
(1) state the names and addresses of the decedent’s (4) each requested payment or distribution of per
surviving spouse and the decedent’s lineal heirs who sonal property.
were being supported by the decedent or who were
entitled to be supported by the decedent at the time of (b) Exempt Property. If the decedent’s personal
his death, stating the dates of birth of those who are property includes exempt property, or property that
minors; and can be determined to be exempt property, the appli
cation must also be signed by all persons entitled to the
(2) for each person for whom an allowance is exempt property or by their representative.
sought, state the person’s name and relationship to the
decedent, the basis on which the allowance is claimed, (c) Preparation. On request, the clerk shall assist
and the amount sought. the applicant in the preparation of the required writing.
(c) Order. The order shall identify the persons en (d) Disposition. If the court is satisfied that dispo
titled to the allowance, the amount to which each is sition without administration is appropriate, the court
entitled, the method of payment, and to whom payment may, without hearing, by letter or other writing authorize
should be made. the payment, transfer, or disposition of the decedent’s
personal property to those persons entitled to it.
Committee Notes
Committee Notes
Rule History
Section 732.402, Florida Statutes, requires persons entitled to exempt
2003 Revision: New rule. property, which excludes property specifically or demonstratively de
vised, to file timely a petition to determine exempt property. Accordingly,
Statutory References disposition of personal property under this rule should not be granted if
decedent’s personal property includes exempt property without all per
§ 731.104, Fla. Stat. Verification of documents. sons entitled thereto agreeing to such disposition.
§ 732.403, Fla. Stat. Family allowance.
Rule History
Rule References
1977 Revision: Permits the clerk to perform limited ministerial
Fla. Prob. R. 5.020 Pleadings; verification; motions. acts in the completion of the application.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and papers. 1984 Revision: Editorial changes. Delineates the required contents
of the application. Committee notes revised.
RULE 5.420. DISPOSITION OF PERSONAL 1988 Revision: Subdivision (a)(3) changed to require applicant
PROPERTY WITHOUT to attach accompanying statements or payment receipts regarding
ADMINISTRATION priority expenses. Subdivision (b) added to require persons entitled
to exempt property to agree to the proposed disposition. Committee
notes expanded.
(a) Application. An interested person may request a
disposition of the decedent’s personal property without 1992 Revision: Editorial change. Committee notes revised. Citation
administration. An application signed by the applicant form changes in committee notes.
shall set forth:
2003 Revision: Committee notes revised.
(1) the description and value of the exempt property; Statutory References
(2) the description and value of the other assets of § 732.402, Fla. Stat. Exempt property.
the decedent; § 735.301, Fla. Stat. Disposition without administration.
Rule Reference
(3) the amount of preferred funeral expenses and
reasonable and necessary medical and hospital expenses Fla. Prob. R. 5.205(a)(4) Filing evidence of death.
RULE 5.430 FLORIDA PROBATE RULES RULE 5.430
RULE 5.430. RESIGNATION OF PERSONAL the remaining personal representative or the successor
REPRESENTATIVE fiduciary all of the records of the estate and all property
of the estate, unless otherwise directed by the court.
(a) Resignation. A personal representative may
resign with court approval. (g) Petition for Discharge; Accounting. The re
signing personal representative shall file an accounting
(b) Petition for Resignation. The personal repre and a petition for discharge within 30 days after the date
sentative seeking to resign shall file a petition for res that the letters of the resigning personal representative
ignation. The petition shall be verified and shall state: are revoked by the court. The petition for discharge
shall be verified and shall state:
(1) the personal representative desires to resign
and be relieved of all powers, duties, and obligations (1) that the letters of the resigning personal repre
as personal representative; sentative have been revoked;
(2) the status of the estate administration and that (2) that the resigning personal representative has
the interests of the estate will not be jeopardized if the surrendered all undistributed estate assets, records,
resignation is accepted; documents, papers, and other property of or concerning
the estate to the remaining personal representative or
(3) whether a proceeding for accounting, sur the successor fiduciary; and
charge, or indemnification or other proceeding against
the resigning personal representative is pending; and (3) the amount of compensation paid or to be paid
the resigning personal representative and the attorney
(4) whether the appointment of a successor fidu and other persons employed by the resigning personal
ciary is necessary. If the petition nominates a successor
representative.
fiduciary, it shall state the nominee’s priority under the
Florida Probate Code, if any, and that the nominee is
(h) Notice, Filing, and Objections to Accounting.
qualified to serve under the laws of Florida.
Notice of, filing of, and objections to the accounting of
the resigning personal representative shall be as pro
(c) Service. The petition shall be served by formal
vided in rule 5.345.
notice on all interested persons and the personal repre
sentative’s surety, if any.
(i) Notice of Filing and Objections to Petition for
(d) Appointment of Successor. Before accepting Discharge.
the resignation, the court shall determine the necessity
for appointment of a successor fiduciary. If there is no (1) Notice of filing and a copy of the petition for
joint personal representative serving, the court shall discharge shall be served on all interested persons. The
appoint a successor fiduciary. notice shall state that objections to the petition for dis
charge must be filed within 30 days after the later of
(e) Acceptance of Resignation. The court may ac service of the petition or service of the accounting on
cept the resignation and revoke the letters of the resign that interested person.
ing personal representative if the interests of the estate
are not jeopardized. Acceptance of the resignation shall (2) Any interested person may file an objection to
not exonerate the resigning personal representative or the petition for discharge within 30 days after the later
the resigning personal representative’s surety from of service of the petition or service of the accounting
liability. on that interested person. Any objection not filed with
in such time shall be deemed abandoned. An objection
(f) Delivery of Records and Property. The resign shall be in writing and shall state with particularity the
ing personal representative shall immediately upon item or items to which the objection is directed and the
acceptance of the resignation by the court deliver to grounds on which the objection is based.
RULE 5.430 FLORIDA PROBATE RULES RULE 5.440
(3) The objecting party shall serve a copy of the 1992 Revision: Editorial changes. Committee notes revised. Citation
objection on the resigning personal representative and form changes in committee notes.
other interested persons. 2003 Revision: Rule completely revised to comply with statutory
changes. Committee notes revised.
(4) Any interested person may set a hearing on the
2007 Revision: Committee notes revised.
objections. Notice of the hearing shall be given to the
resigning personal representative and other interested Statutory References
persons.
§ 731.104, Fla. Stat. Verification of documents.
§ 731.201(23), Fla. Stat. General definitions.
(j) Failure to File Accounting or Deliver Records § 733.101, Fla. Stat. Venue of probate proceedings.
or Property. The resigning personal representative § 733.502, Fla. Stat. Resignation of personal representative.
shall be subject to contempt proceedings if the resign § 733.503, Fla. Stat. Appointment of successor upon resignation.
ing personal representative fails to file an accounting or § 733.5035, Fla. Stat. Surrender of assets after resignation.
§ 733.5036, Fla. Stat. Accounting and discharge following resignation.
fails to deliver all property of the estate and all estate
records under the control of the resigning personal rep Rule References
resentative to the remaining personal representative or
the successor fiduciary within the time prescribed by Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
this rule or by court order. Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.180 Waiver and consent.
(k) Discharge. The court shall enter an order dis Fla. Prob. R. 5.310 Disqualification of personal representative;
notification.
charging the resigning personal representative and
Fla. Prob. R. 5.330 Execution by personal representative.
releasing the surety on any bond after the court is Fla. Prob. R. 5.345 Accountings other than personal representatives’
satisfied that the resigning personal representative has final accountings.
delivered all records and property of the estate to the Fla. Prob. R. 5.346 Fiduciary accounting.
Fla. Prob. R. 5.401 Objections to petition for discharge or final
remaining personal representative or the successor fi accounting.
duciary; that all objections, if any, to the accounting of
the resigning personal representative have been with RULE 5.440. PROCEEDINGS FOR REMOVAL
drawn, abandoned, or judicially resolved; and that the
liability of the resigning personal representative has (a) Commencement of Proceeding. The court on
been determined and satisfied. its own motion may remove, or any interested person
by petition may commence a proceeding to remove,
Committee Notes
a personal representative. A petition for removal shall
In the event of resignation of a personal representative, if a joint state the facts constituting the grounds upon which re
personal representative is not serving, the successor fiduciary must moval is sought, and shall be filed in the court having
file an oath and designation of a successor resident agent. jurisdiction over the administration of the estate.
This rule was revised to implement the revisions to the probate
code that govern resignation of personal representative. The com (b) Accounting. A removed personal representative
mittee intended to separate the procedure with respect to resignation shall file an accounting within 30 days after removal.
from removal because these proceedings may differ in practice.
(c) Delivery of Records and Property. A removed
Rule History
personal representative shall, immediately after re
1975 Revision: The rule provides for the orderly succession of per moval or within such time prescribed by court order,
sonal representatives in the event a personal representative resigns or deliver to the remaining personal representative or to
is removed. the successor fiduciary all of the records of the estate
and all of the property of the estate.
1977 Revision: Editorial change in committee note.
1988 Revision: Editorial changes; captions added to subdivisions. (d) Failure to File Accounting or Deliver Records
Committee notes revised. Citation form changes in committee notes. and Property. If a removed personal representative
RULE 5.440 FLORIDA PROBATE RULES RULE 5.460
2002 Revision: Entire rule amended. Contents of accountings (4) a statement of the relief sought.
by removed fiduciaries are now governed by rule 5.346. Editorial
changes in (a), (c), and (d). Committee notes revised.
(c) Order. The court shall enter such orders as ap
2003 Revision: Committee notes revised. propriate. Unless required, the court need not revoke
the order of discharge, reissue letters, or require bond.
2007 Revision: Committee notes revised.
Committee Notes
Statutory References
This rule establishes a procedure for further administration after
§ 731.201(23), Fla. Stat. General definitions. estate is closed, which may be summary in nature.
§ 733.504, Fla. Stat. Removal of personal representative; causes
of removal. Rule History
§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.
§ 733.506, Fla. Stat. Proceedings for removal. 1984 Revision: Extensive changes. Committee notes revised.
§ 733.5061, Fla. Stat. Appointment of successor upon removal.
§ 733.508, Fla. Stat. Accounting and discharge of removed per 1992 Revision: Citation form change in committee notes.
sonal representatives upon removal.
§ 733.509, Fla. Stat. Surrender of assets upon removal. 2003 Revision: Committee notes revised.
RULE 5.475 FLORIDA PROBATE RULES RULE 5.475
Statutory Reference 1992 Revision: Changed rule to require that notice be given to
persons qualified to act as ancillary personal representative whose
§ 733.903, Fla. Stat. Subsequent administration. entitlement to preference of appointment is equal to or greater than
petitioner’s and to all domiciliary personal representatives prior to
Rule References entry of an order admitting the will to probate. Committee notes
revised. Citation form changes in committee notes.
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice. 1996 Revision: The requirement that a filing of an authenticated
Fla. Prob. R. 5.041 Service of pleadings and papers. copy of a will be a “probated” will is removed from subdivision (c).
There may be circumstances in which a will is on deposit or file in a
RULE 5.470. ANCILLARY ADMINISTRATION foreign jurisdiction but is not being offered for probate. That should
not preclude an ancillary administration in Florida of that estate. This
change is not intended to allow an authenticated copy of any docu
(a) Petition. The petition for ancillary letters shall ment other than an original instrument to be filed under this rule and
include an authenticated copy of so much of the domi considered for probate.
ciliary proceedings as will show:
2003 Revision: Committee notes revised.
(1) for a testate estate the will, petition for probate, 2005 Revision: Committee notes revised.
order admitting the will to probate, and authority of the
personal representative; or Statutory References
(1) all known persons qualified to act as ancil Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
lary personal representative and whose entitlement to
Fla. Prob. R. 5.041 Service of pleadings and papers.
preference of appointment is equal to or greater than Fla. Prob. R. 5.042 Time.
petitioner’s and who have not waived notice or joined Fla. Prob. R. 5.065(b) Notice of civil action or ancillary admin
in the petition; and istration.
Fla. Prob. R. 5.205(a)(2) Filing evidence of death.
Fla. Prob. R. 5.215 Authenticated copy of will.
(2) all domiciliary personal representatives who Fla. Prob. R. 5.240 Notice of administration.
have not waived notice or joined in the petition. Fla. Prob. R. 5.241 Notice to creditors.
Fla. Prob. R. 5.475 Ancillary administration, short form.
(c) Probate of Will. On filing the authenticated copy Fed. R. Civ. P. 44(a) Proof of official record.
of a will, the court shall determine whether the will com
plies with Florida law to entitle it to probate. If it does RULE 5.475. ANCILLARY ADMINISTRATION,
comply, the court shall admit the will to probate. SHORT FORM
On presentation of the foregoing, the court shall 1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
admit the will and any codicils to probate if they com
ply with section 732.502(1) or section 732.502(2), 2003 Revision: Committee notes revised.
Florida Statutes.
2005 Revision: Deletion of reference to intestate estates in sub
division (a) to conform to 2001 amendments to section 734.1025,
(b) Notice to Creditors. After complying with the Florida Statutes. Editorial changes throughout.
foregoing requirements, the foreign personal represen
tative may cause a notice to creditors to be published as Statutory References
required by these rules.
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.
§ 734.102, Fla. Stat. Ancillary administration.
(c) Claims Procedure. The procedure for filing or § 734.1025, Fla. Stat. Nonresident decedent’s testate estate with
barring claims and objecting to them and for suing on property not exceeding $50,000 in this state; determination of claims.
them shall be the same as for other estates, except as
provided in this rule. Rule References
(f) Objections to Claims. If an ancillary personal (1) the basis for the claim;
representative is appointed pursuant to this rule, the
procedure for filing, objecting to, and suing on claims (2) the amount claimed;
shall be the same as for other estates, except that the
ancillary personal representative appointed shall have (3) the name and address of the creditor;
not less than 30 days from the date of appointment
within which to object to any claim filed. (4) the security for the claim, if any; and
RULE 5.490 FLORIDA PROBATE RULES RULE 5.496
(f) Service by Personal Representative. If the § 731.104, Fla. Stat. Verification of documents.
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.
personal representative files a claim individually, or
§ 733.702, Fla. Stat. Limitations on presentation of claims.
in any other capacity creating a conflict of interest § 733.703, Fla. Stat. Form and manner of presenting claim.
between the personal representative and any interested § 733.704, Fla. Stat. Amendment of claims.
person, then at the time the claim is filed, the personal § 733.708, Fla. Stat. Compromise.
representative shall serve all interested persons with § 733.710, Fla. Stat. Limitations on claims against estates.
§ 734.102, Fla. Stat. Ancillary administration.
a copy of the claim and notice of the right to object
to the claim. The notice shall state that an interested Rule References
person may object to a claim as provided by law and
rule 5.496. Service shall be either by informal notice Fla. Prob. R. 5.020 Pleadings; verification; motions.
or in the manner provided for service of formal notice. Fla. Prob. R. 5.241 Notice to creditors.
Service on one interested person by a chosen method Fla. Prob. R. 5.470 Ancillary administration.
Fla. Prob. R. 5.475 Ancillary administration, short form.
shall not preclude service on another interested person
Fla. Prob. R. 5.530 Summary administration.
by another method.
days from the timely filing or amendment of the claim, RULE 5.498. PERSONAL REPRESENTATIVE’S
whichever occurs later. PROOF OF CLAIM
(b) Service. A personal representative or other in (a) Contents. A personal representative’s proof of
terested person who files an objection to the claim shall claim shall state:
serve a copy of the objection on the claimant within
10 days after the filing of the objection. The objection (1) the basis for each claim;
shall include a certificate of service. If the objection is
filed by an interested person other than the personal (2) the amount claimed;
representative, a copy of the objection shall also be
served on the personal representative within 10 days (3) the name and address of the claimant;
after the filing of the objection.
(4) the security for the claim, if any;
(c) Notice to Claimant. An objection shall contain
a statement that the claimant is limited to a period of (5) whether the claim is matured, unmatured, con
tingent, or unliquidated;
30 days from the date of service of an objection within
which to bring an action as provided by law.
(6) whether the claim has been paid or is to be
Committee Notes
paid; and
This rule represents an implementation of the procedure found in (7) that any objection to a claim listed as to be paid
section 733.705, Florida Statutes, and adds a requirement to furnish shall be filed no later than 4 months from first publica
notice of the time limitation in which an independent action or de tion of the notice to creditors or 30 days from the date of
claratory action must be filed after objection to a claim.
the filing of the proof of claim, whichever occurs later.
Rule History
(b) Service. The proof of claim shall be served at
1992 Revision: New rule. the time of filing or promptly thereafter on all inter
ested persons.
2003 Revision: Reference in (a) to notice of administration
changed to notice to creditors. Committee notes revised. Committee Notes
2005 Revision: Removed provision for objections to personal rep This rule represents an implementation of the procedure found in
resentative’s proof of claim, now addressed in rule 5.498, and subse section 733.703(2), Florida Statutes, with respect to a proof of claim
quent subdivisions relettered. Reference to service on the claimant’s filed by the personal representative.
attorney removed because service on the attorney is required by rule
5.041(b). Committee notes revised. Rule History
2007 Revision: Editorial change in (a). Second sentence of (b) 2005 Revision: New rule.
added to specify that the objection must include a certificate of
service. 2007 Revision: Subdivision (b) amended to eliminate the need to
serve claimants listed as paid on the proof of claim, and clarifying
Statutory References editorial change.
RULE 5.499. FORM AND MANNER OF items listed as to be paid. An objection to an item listed as to be paid is
OBJECTING TO PERSONAL treated in the same manner as a creditor’s claim and there is a require
ment to furnish notice of the time limitation in which an independent
REPRESENTATIVE’S PROOF action or declaratory action must be filed after objection to a claim.
OF CLAIM
Rule History
(a) Filing. An objection to a personal representative’s 2005 Revision: New rule.
proof of claim shall be in writing and filed on or before
the expiration of 4 months from the first publication of 2007 Revision: Editorial change in (a). Extensive revisions to rest
notice to creditors or within 30 days from the timely fil of rule to clarify the differences in procedure between items listed as
paid and items listed as to be paid. Committee notes revised.
ing of the proof of claim, whichever occurs later.
Statutory Reference
(b) Contents. The objection shall identify the par
ticular item or items to which objection is made. An § 733.705, Fla. Stat. Payment of and objection to claims.
objection to an item listed on the proof of claim as to be Rule References
paid shall also contain a statement that the claimant is
limited to a period of 30 days from the date of service Fla. Prob. R. 5.040 Notice.
of an objection within which to bring an independent Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.496 Form and manner of objecting to claim.
action as provided by law. Fla. Prob. R. 5.498 Personal representative’s proof of claim.
(c) Items Listed as Paid. If an objection is filed to RULE 5.510. ESTABLISHMENT AND
an item listed on the proof of claim as paid, it shall not PROBATE OF LOST OR
be necessary for the claimant to file an independent ac DESTROYED WILL
tion as to that item. Liability as between estate and the
personal representative individually for claims listed (a) Proceeding. The establishment and probate of a
on the proof of claim as paid, or for claims treated as if lost or destroyed will shall be in one proceeding.
they were listed on the proof of claim as paid, shall be
determined in the estate administration, in a proceeding (b) Petition. The petition, in addition to reciting
for accounting or surcharge, or in another appropriate information required under these rules for petition for
proceeding, whether or not an objection has been filed. administration, shall include a statement of the facts
constituting grounds on which relief is sought, and a
(d) Items Paid Before Objection. If an item listed statement of the contents of the will or, if available, a
as to be paid is paid by the personal representative copy of the will.
prior to the filing of an objection as to that item, the
item shall be treated as if it were listed on the proof of (c) Testimony. The testimony of each witness in
claim as paid. the proceeding shall be reduced to writing and filed and
may be used as evidence in any contest of the will if the
(e) Service. The objector shall serve a copy of the witness has died or moved from the state.
objection on the personal representative and, in the
case of any objection to an item listed as to be paid, (d) Notice. No lost or destroyed will shall be admit
shall also serve a copy on that claimant within 10 days ted to probate unless formal notice has been given to
after the filing of the objection. In the case of an objec those who, but for the will, would be entitled to the
tion to an item listed as to be paid, the objection shall property thereby devised.
include a certificate of service.
(e) Order. The order admitting the will to probate
Committee Notes shall state in full its terms and provisions.
This rule represents an implementation of the procedure found in sec Committee Notes
tion 733.705, Florida Statutes, with respect to a proof of claim filed by
the personal representative. The rule recognizes the different treatment This rule represents a rule implementation of the procedure for
between items listed on a proof of claim as having been paid versus merly found in section 733.207, Florida Statutes. It is not intended
RULE 5.510 FLORIDA PROBATE RULES RULE 5.530
to change the effect of the statute from which it was derived but has (5) a statement whether domiciliary or principal
been reformatted to conform with the structure of these rules. It is not proceedings are pending in another state or country, if
intended to create a new procedure or modify an existing procedure.
known, and the name and address of the foreign per
Rule History sonal representative and the court issuing letters;
1977 Revision: Editorial change in subdivision (c) of prior rule. (6) a statement that the decedent’s will, if any,
1984 Revision: Extensive changes. Committee notes revised. does not direct administration as required by chapter
733, Florida Statutes;
1988 Revision: Rule rewritten to conform to statute. Committee
notes expanded. Citation form change in committee notes. (7) a statement that the value of the entire estate
1992 Revision: Committee notes revised. Citation form changes
subject to administration in this state, less the value of
in committee notes. property exempt from the claims of creditors, does not
exceed $75,000 or that the decedent has been dead for
2002 Revision: Subdivision (d) added to implement procedure more than 2 years;
formerly found in section 733.207(3), Florida Statutes. Committee
notes revised.
(8) a description of all assets in the estate and the
2003 Revision: Committee notes revised. estimated value of each, and a separate description of
any protected homestead and exempt property;
Statutory Reference
§ 733.207, Fla. Stat. Establishment and probate of lost or de (9) a statement either that all creditors’ claims are
stroyed will. barred or that a diligent search and reasonable inquiry
for any known or reasonably ascertainable creditors
Rule References
has been made and one of the following:
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.025 Adversary proceedings. (A) A statement that the estate is not indebted.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and papers. (B) The name and address of each creditor, the
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.200 Petition for administration. nature of the debt, the amount of the debt and whether
the amount is estimated or exact, and when the debt
RULE 5.530. SUMMARY ADMINISTRATION is due. If provision for payment of the debt has been
made other than for full payment in the proposed or
der of distribution, the following information shall be
(a) Petition. The petition shall be verified as re
shown:
quired by law and shall contain:
(i) The name of the person who will pay the
(1) a statement of the interest of each petitioner,
debt.
each petitioner’s name and address, and the name and
office address of each petitioner’s attorney; (ii) The creditor’s written consent for substi
tution or assumption of the debt by another person.
(2) the name, last known address, social security
number, and date and place of death of the decedent, (iii) The amount to be paid if the debt has been
and the state and county of the decedent’s domicile; compromised.
(3) so far as is known, the names and addresses of (iv) The terms for payment and any limita
the surviving spouse, if any, and the beneficiaries and tions on the liability of the person paying the debt;
their relationship to the decedent and the date of birth
of any who are minors; (10) in an intestate estate, a statement that after
the exercise of reasonable diligence each petitioner is
(4) a statement showing venue; unaware of any unrevoked wills or codicils;
RULE 5.530 FLORIDA PROBATE RULES RULE 5.540
(11) in a testate estate, a statement identifying all 2003 Revision: Committee notes revised.
unrevoked wills and codicils being presented for pro
2005 Revision: Subdivision (a)(3) amended to include require
bate, and a statement that each petitioner is unaware of ments of section 735.206(2), Florida Statutes.
any other unrevoked will or codicil; and
2007 Revision: Rule substantially rewritten to require petition to
(12) a schedule of proposed distribution of all include essentially the same information required to be stated in a
probate assets and the person to whom each asset is to petition for administration and to require the petitioners to specify
facts showing they are entitled to summary administration. New sub
be distributed. division (b) added to provide for formal notice of the petition, and
subsequent subdivisions relettered.
(b) Service. The joinder in, or consent to, a petition
for summary administration is not required of a benefi Statutory References
ciary who will receive full distributive share under the
§ 731.104, Fla. Stat. Verification of documents.
proposed distribution. Any beneficiary and any known
§§ 735.201–735.2063, Fla. Stat. Summary administration.
or reasonably ascertainable creditor not joining or con
senting shall receive formal notice of the petition. Rule References
(c) Testate Estate. In a testate estate, on the filing Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
of the petition for summary administration, the dece
Fla. Prob. R. 5.041 Service of pleadings and papers.
dent’s will shall be proved and admitted to probate. Fla. Prob. R. 5.205(a)(3) Filing evidence of death.
(d) Order. If the court determines that the dece PART III — GUARDIANSHIP
dent’s estate qualifies for summary administration, it
shall enter an order distributing the probate assets and
RULE 5.540. HEARINGS
specifically designating the person to whom each asset
is to be distributed.
(a) Application. All hearings under chapter 744
Committee Notes and under section 393.12, Florida Statutes, shall be
open unless the alleged incapacitated person, adjudi
Verification and service of a petition for summary administration cated ward, or person alleged to have a developmental
are governed by rules 5.020, 5.040, and 5.041. Section 735.206(2),
Florida Statutes, relating to diligent search for, and service of the disability elects to have the hearing closed.
petition for summary administration on, reasonably ascertainable
creditors is substantive. Nothing in this rule is intended to change the (b) Election. An election to close a hearing may
effect of the statutory amendments.
be made before the hearing by filing a written notice.
Rule History Subject to the court’s approval, an election to close or
reopen a hearing may be made at any time during the
1977 Revision: Changes to conform to 1975 statutory revision.
Established the requirements of a petition for summary administra
hearing by oral or written motion.
tion and provided for the hearing thereon and the entry of the order
of distribution of the assets. Committee Notes
1984 Revision: Extensive revisions and editorial changes. Committee This rule permits an alleged incapacitated person, adjudicated ward,
notes revised. or person alleged to have a developmental disability to elect to have all
hearings open or closed at any time by oral or written election.
1988 Revision: Editorial change in caption of (a). Committee notes
revised. Rule History
1992 Revision: Editorial changes. Committee notes revised. Citation 1991 Revision: New rule.
form changes in committee notes.
1992 Revision: Committee notes revised.
2002 Revision: Replaces “homestead” with “protected home
stead” in (a)(2) to conform to addition of term in section 731.201(29), 2008 Revision: Subdivision (a) amended to include persons with a
Florida Statutes. Committee notes revised. developmental disability. Committee notes revised.
RULE 5.540 FLORIDA PROBATE RULES RULE 5.550
Fla. Prob. R. 5.541 Recording of hearings. (1) the name, age, and present address of the pe
titioner and the petitioner’s relationship to the alleged
RULE 5.541. RECORDING OF HEARINGS incapacitated person;
Electronic or stenographic recordings shall be made (2) the name, age, county of residence, and pres
of all hearings on the: ent address of the alleged incapacitated person, and
specify the primary language spoken by the alleged
(a) adjudication of incapacity; incapacitated person, if known;
(b) appointment of a guardian; (3) that the petitioner believes the alleged in
capacitated person to be incapacitated, the facts on
which such belief is based, and the names and addresses
(c) modification, termination, or revocation of the
of all persons known to the petitioner who have knowl
adjudication of incapacity;
edge of such facts through personal observation;
(d) restoration of capacity; or
(4) the name and address of the alleged inca
pacitated person’s attending or family physician, if
(e) restoration of rights.
known;
Committee Notes
(5) which rights the alleged incapacitated person
This rule represents a rule implementation of the procedure found is incapable of exercising to the best of the petitioner’s
in sections 744.109 and 744.3031, Florida Statutes. It is not intended knowledge; and, if the petitioner has insufficient ex
to change the effect of the statutes from which it is derived, or to
create a new procedure or modify an existing procedure. perience to make that judgment, the petitioner shall so
indicate;
Rule History
(6) whether plenary or limited guardianship is
1991 Revision: New rule.
sought for the alleged incapacitated person; and
1992 Revision: Editorial changes. Committee notes revised.
Citation form change in committee notes. (7) the names, relationships, and addresses of the
next of kin of the alleged incapacitated person, speci
2003 Revision: Committee notes revised.
fying the dates of birth of any who are minors, to the
2008 Revision: New subdivision (e) added for proceedings in extent known to the petitioner.
volving guardian advocates. Committee notes revised.
(b) Notice.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate. (1) Contents. The notice of filing the petition to
§ 744.109, Fla. Stat. Records. determine incapacity shall state:
§ 744.3031, Fla. Stat. Emergency temporary guardianship.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.3371, Fla. Stat. Notice of petition for appointment of guard (A) the time and place of the hearing to inquire
ian and hearing. into the capacity of the alleged incapacitated person;
RULE 5.550 FLORIDA PROBATE RULES RULE 5.552
(B) that an attorney has been appointed to repre 1988 Revision: Committee notes revised. Citation form changes
sent such person; and in committee notes.
Statutory References
(3) Service on Others. A copy of the petition and
the notice shall also be served on counsel for the al § 744.3201, Fla. Stat. Petition to determine incapacity.
leged incapacitated person, and on all next of kin. § 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.3371, Fla. Stat. Notice of petition for appointment of guard
ian and hearing.
(c) Verified Statement. An interested person may § 744.441(11), Fla. Stat. Powers of guardian upon court approval.
file a verified statement that shall state: § 744.462, Fla. Stat. Determination regarding alternatives to guard
ianship.
(1) that he or she has a good faith belief that the Rule References
alleged incapacitated person’s trust, trust amendment,
or durable power of attorney is invalid; and Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040(a)(3) Notice.
Fla. Prob. R. 5.800(a) Application of revised chapter 744 to exist
(2) facts constituting a reasonable basis for that ing guardianships.
belief.
RULE 5.552. VOLUNTARY GUARDIANSHIP
(d) Order. When an order determines that a person OF PROPERTY
is incapable of exercising delegable rights, it shall
specify whether there is an alternative to guardianship (a) Petition for Appointment of Guardian. The
that will sufficiently address the problems of the inca petition for voluntary guardianship shall be verified by
pacitated person. the petitioner and shall state:
Committee Notes
(1) the facts to establish venue;
Rule History
(2) the petitioner’s residence and post office address;
1980 Revision: Implements 1979 amendments to section 744.331,
Florida Statutes.
(3) that the petitioner although mentally compe
1984 Revision: Change in title of rule. Editorial changes and adds tent is incapable of the care, custody, and management
a provision for service of petition. Committee notes revised. of the petitioner’s estate by reason of age or physical
RULE 5.552 FLORIDA PROBATE RULES RULE 5.555
(e) Termination. The ward may terminate a vol (6) the proposed guardian’s relationship to and
untary guardianship by filing a notice of termination. any previous association with the minor;
Copies of the notice shall be served on all interested
persons. The guardian shall file a petition for discharge (7) the reasons why the proposed guardian should
in accordance with these rules. be appointed; and
Committee Notes (8) the nature and value of the property subject to
the guardianship.
Rule History
2003 Revision: New rule. (d) Notice. Formal notice of the petition for appoint
ment of guardian shall be served on any parent who is
2006 Revision: New (d) added to incorporate 2006 amendment to not a petitioner or, if there is no parent, on the persons
section 744.341, Florida Statutes, requiring inclusion of physician’s
certificate in annual report, and subsequent subdivision relettered. with whom the minor resides and on such other persons
Committee notes revised. as the court may direct.
RULE 5.555 FLORIDA PROBATE RULES RULE 5.560
(e) Initial and Annual Guardianship Reports. initial and annual guardianship plans. Subdivision (e)(3) amended to
eliminate requirement of service on ward unless ordered by court or
required by statute.
(1) The initial guardianship report shall consist
only of the verified inventory. The annual guardianship Statutory References
report shall consist only of the annual accounting.
§ 69.031, Fla. Stat. Designated financial institutions for assets in
hands of guardians, curators, administrators, trustees, receivers, or
(2) The guardian shall file an initial and annual other officers.
guardianship plan as required by law. § 744.3021, Fla. Stat. Guardians of minors.
§ 744.334, Fla. Stat. Petition for appointment of guardian or pro
fessional guardian; contents.
(3) Unless otherwise ordered by the court or re § 744.3371(2), Fla. Stat. Notice of petition for appointment of
quired by law, the guardian need not serve a copy of guardian and hearing.
the initial guardianship report and the annual guardian § 744.342, Fla. Stat. Minors; guardianship.
§ 744.362, Fla. Stat. Initial guardianship report.
ship reports on the ward. § 744.363, Fla. Stat. Initial guardianship plan.
§ 744.365, Fla. Stat. Verified inventory.
(f) Inspection of Inventory or Accounting. Unless § 744.367, Fla. Stat. Duty to file annual guardianship report.
§ 744.3675, Fla. Stat. Annual guardianship plan.
otherwise ordered by the court for good cause shown, § 744.3678, Fla. Stat. Annual accounting.
any inventory, amended or supplementary inventory, § 744.3679, Fla. Stat. Simplified accounting procedures in certain
or accounting is subject to inspection only by the clerk, cases.
the ward or the ward’s attorney, and the guardian or the
Rule References
guardian’s attorney.
Fla. Prob. R. 5.040 Notice.
Committee Notes Fla. Prob. R. 5.541 Recording of hearings.
Fla. Prob. R. 5.560 Petition for appointment of guardian of an
The provisions of chapter 744, Florida Statutes, and the guardian incapacitated person.
ship rules enacted in 1989 leave some uncertainty with respect to Fla. Prob. R. 5.620 Inventory.
the procedural requirements in guardianships for minors who are not Fla. Prob. R. 5.636 Settlement of minors’ claims.
incapacitated persons. This rule is intended to address only certain Fla. Prob. R. 5.690 Initial guardianship report.
procedures with respect to the establishment and administration of
guardianships over minors. The committee believes that certain pro
visions of the guardianship law and rules apply to both guardianships
RULE 5.560. PETITION FOR APPOINTMENT
of minors as well as guardianships of incapacitated persons and no OF GUARDIAN OF AN
change has been suggested with respect to such rules. Because no INCAPACITATED PERSON
adjudication of a minor is required by statute, it is contemplated that
appointment of a guardian for a minor may be accomplished without
a hearing. Initial and annual guardianship reports for minors have (a) Contents. The petition shall be verified by the
been simplified where all assets are on deposit with a designated petitioner and shall state:
financial institution under applicable Florida law.
(1) the facts to establish venue;
Rule History
1991 Revision: New rule adopted to apply to guardianships over (2) the petitioner’s residence and post office address;
minors who are not incapacitated persons.
(3) the name, age, and residence and post office
1992 Revision: Committee notes revised. Citation form changes
in committee notes. address of the alleged incapacitated person;
1996 Revision: Committee notes revised. (4) the nature of the incapacity, the extent of
2000 Revision: Deletes requirement in subdivision (c) to report
guardianship, either limited or plenary, requested for
social security number of proposed guardian. the alleged incapacitated person, and the nature and
value of property subject to the guardianship;
2003 Revision: Deletes requirement in subdivision (c) to report
social security number of minor. Committee notes revised.
(5) the names and addresses of the next of kin
2006 Revision: Subdivision (e)(2) amended to conform to require of the alleged incapacitated person known to the
ment in sections 744.362(1) and 744.3675, Florida Statutes, to file petitioner;
RULE 5.560 FLORIDA PROBATE RULES RULE 5.590
(6) the name and residence and post office address 1989 Revision by Ad Hoc Committee: Subdivision (a)(4) of the
of the proposed guardian, and that the proposed guard former rule has been deleted altogether because the date and court of
adjudication will probably not be known at the time of filing the peti
ian is qualified to serve, or that a willing and qualified tion for the appointment since petition for appointment will henceforth
guardian has not been located; be filed contemporaneously with the petition to determine incapacity.
(7) the proposed guardian’s relationship to and 1991 Revision: Implements 1989 amendments to sections 744.334
and 744.331(1), Florida Statutes, and 1990 technical amendments.
any previous association with the alleged incapacitated Subdivision (c)(1) deleted because rule 5.555(d) addresses service
person; on parents.
(8) the reasons why the proposed guardian should 1992 Revision: Citation form changes in committee notes.
be appointed;
1996 Revision: Deletes requirement in subdivision (a) to report
social security number of alleged incapacitated person. Adds provi
(9) whether there are alternatives to guardianship sion to subdivision (b) for notice before hearing when petition is not
known to the petitioner that may sufficiently address served simultaneously with petition to determine incapacity.
the problems of the alleged incapacitated person in
whole or in part; and 2000 Revision: Deletes requirement in subdivision (a) to report
social security number of proposed guardian.
(10) if the proposed guardian is a professional 2003 Revision: Committee notes revised.
guardian, a statement that the proposed guardian has
complied with the registration requirements of section 2006 Revision: New (a)(9) added to incorporate 2006 passage of
section 744.462, Florida Statutes. Subdivision (a)(10) added to imple
744.1083, Florida Statutes. ment section 744.1083, Florida Statutes. Committee notes revised.
(b) Notice. Notice of filing the petition for appoint Statutory References
ment of guardian may be served as a part of the notice
§ 744.1083, Fla. Stat. Professional guardian registration.
of filing the petition to determine incapacity, but shall
§ 744.309, Fla. Stat. Who may be appointed guardian of a resident
be served a reasonable time before the hearing on the ward.
petition or other pleading seeking appointment of a § 744.312, Fla. Stat. Considerations in appointment of guardian.
guardian. § 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.334, Fla. Stat. Petition for appointment of guardian or pro
fessional guardian; contents.
(c) Service on Public Guardian. If the petitioner § 744.3371(1), Fla. Stat. Notice of petition for appointment of
requests appointment of the public guardian, a copy of guardian and hearing.
the petition and the notice shall be served on the public § 744.341, Fla. Stat. Voluntary guardianship.
guardian. § 744.344, Fla. Stat. Order of appointment.
§ 744.462, Fla. Stat. Determination regarding alternatives to guard
ianship.
Committee Notes § 744.703, Fla. Stat. Office of public guardian; appointment,
notification.
Rule History
Rule References
1975 Revision: Substantially the same as section 744.334, Florida
Statutes, expanded to include provisions of section 744.302, Florida Fla. Prob. R. 5.020 Pleadings; verification; motions.
Statutes, and section 744.312, Florida Statutes, by reference. Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.550 Petition to determine incapacity.
1977 Revision: Change in committee notes to conform to statu
tory renumbering. RULE 5.590. APPLICATION FOR
1980 Revision: Implements 1979 amendment to section 744.334,
APPOINTMENT AS GUARDIAN;
Florida Statutes. DISCLOSURE STATEMENT;
FILING
1984 Revision: Combines rule 5.560 and part of prior rule 5.570.
Editorial changes and committee notes revised.
(a) Individual Applicants.
1988 Revision: Editorial changes. Committee notes revised. Cita
tion form changes in committee notes. (1) The application for appointment shall contain:
RULE 5.590 FLORIDA PROBATE RULES RULE 5.600
(A) the applicant’s qualifications to serve as a 1989 Revision: Rule reactivated with different title and text.
guardian; and
1991 Revision: Implements 1989 and 1990 amendments to sec
tion 744.3125, Florida Statutes.
(B) the names of all wards for whom the appli
cant is then acting as guardian, the court file number 1992 Revision: Citation form change in committee notes.
and circuit court in which each case is pending, and 1996 Revision: Adds filing and service provisions consistent with
a statement as to whether the applicant is acting as a rule 5.560. Corrects reference to corporations qualified to exercise
limited or plenary guardian of the person or property, fiduciary powers. Editorial changes. Adds statutory references.
or both, of each ward.
2003 Revision: Committee notes revised.
(2) The application for appointment shall be filed 2006 Revision: Committee notes revised.
and served a reasonable time before the hearing on the
appointment of a guardian. 2008 Revision: Committee notes revised.
Statutory References
(b) Nonprofit Corporate Guardians.
§ 393.063(17), Fla. Stat. Definitions.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
(1) No application for appointment shall be re § 744.102(4), (9), (11), (14), (22) Fla. Stat. Definitions.
quired of a nonprofit corporate guardian. § 744.3085, Fla. Stat. Guardian advocates.
§ 744.309, Fla. Stat. Who may be appointed guardian of a resi
(2) A disclosure statement shall contain: dent ward.
§ 744.3125, Fla. Stat. Application for appointment.
§ 744.331(1), Fla. Stat. Procedures to determine incapacity.
(A) the corporation’s qualifications to serve as a § 744.3371, Fla. Stat. Notice of petition for appointment of
guardian; and guardian and hearing.
(B) the names of all wards for whom the corpo RULE 5.600. OATH
ration is then acting as guardian, the court file number
and circuit court in which each case is pending, and a Every guardian or emergency temporary guardian
statement as to whether the corporation is acting as a shall take an oath to perform faithfully the duties of
limited or plenary guardian of the person or property, guardian or emergency temporary guardian before ex
or both, of each ward. ercising such authority. The oath may be incorporated
in the petition for appointment of guardian, or petition
(3) The disclosure statement of a nonprofit corpo for appointment of emergency temporary guardian, if
rate guardian shall be filed quarterly with the clerk of the verified by the prospective guardian.
court for each circuit in which the corporation has been
appointed, or is seeking appointment, as guardian. Committee Notes
Rule History
(c) For Profit Corporations and Associations. No
application for appointment or disclosure statement shall 1977 Revision: Change in committee notes to conform to statu
be required of any for profit corporation or association au tory renumbering. Rule permits oath of guardian to be incorporated
in petition for appointment and in designation of resident agent.
thorized to exercise fiduciary powers under Florida law.
1984 Revision: Editorial change and deletes genders.
(d) Public Guardians. No application for appoint
ment or disclosure statement shall be required of a 1989 Revision: Prior rule adopted as temporary emergency rule.
public guardian. 1991 Revision: Permits oath to be incorporated in application for
appointment of guardian, adds reference to temporary emergency
Committee Notes guardian, and makes editorial change.
1988 Revision: Prior rule deleted; text of rule moved to rule 5.650. 2008 Revision: Committee notes revised.
RULE 5.600 FLORIDA PROBATE RULES RULE 5.620
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate. § 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 744.347, Fla. Stat. Oath of guardian. § 744.362, Fla. Stat. Initial guardianship report.
§ 744.363, Fla. Stat. Initial guardianship plan.
§ 744.365, Fla. Stat. Verified inventory.
RULE 5.610. EXECUTION BY GUARDIAN § 744.367, Fla. Stat. Duty to file annual guardianship report.
§ 744.3675, Fla. Stat. Annual guardianship plan.
§ 744.3678, Fla. Stat. Annual accounting.
The guardian shall sign the: § 744.387, Fla. Stat. Settlement of claims.
§ 744.441, Fla. Stat. Powers of guardian upon court approval.
(a) initial guardianship plan; § 744.446, Fla. Stat. Conflicts of interest; prohibited activities;
court approval; breach of fiduciary duty.
§ 744.447, Fla. Stat. Petition for authorization to act.
(b) inventory, amended inventory, or supplemental § 744.451, Fla. Stat. Order.
inventory; § 744.467, Fla. Stat. Resignation of guardian.
§ 744.511, Fla. Stat. Accounting upon removal.
§ 744.521, Fla. Stat. Termination of guardianship.
(c) annual guardianship plan; § 744.524, Fla. Stat. Termination of guardianship on change of
domicile of resident ward.
§ 744.527(1), Fla. Stat. Final reports and application for discharge;
(d) annual accounting; hearing.
§ 744.534, Fla. Stat. Disposition of unclaimed funds held by guardian.
(e) guardian’s petition for court approval required
by law; RULE 5.620. INVENTORY
(f) petition for discharge; (a) Inventory. Within 60 days after issuance of let
ters, the guardian of the property shall file a verified
(g) final report; and inventory as required by law. All property not in the
guardian’s possession as of the date the inventory is
(h) resignation of guardian. filed shall be so identified.
1992 Revision: Citation form changes in committee notes. (c) Verification. The notice shall be verified by the
guardian.
2005 Revision: Editorial changes in (d).
Rule History
2008 Revision: Adds reference to guardian advocate in new (e).
Committee notes revised. 2005 Revision: New rule.
Fla. Prob. R. 5.020 Pleadings; verification; motions. RULE 5.630. PETITION FOR APPROVAL OF
Fla. Prob. R. 5.041 Service of pleadings and papers. ACTS
Fla. Prob. R. 5.060 Request for notices and copies of pleadings.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.649 Guardian advocate. (a) Contents. When authorization or confirmation
Fla. Prob. R. 5.690 Initial guardianship report. of any act of the guardian is required, application shall
Fla. Prob. R. 5.700 Objection to guardianship reports. be made by verified petition stating the facts showing:
RULE 5.630 FLORIDA PROBATE RULES RULE 5.635
(1) the expediency or necessity for the action; 1977 Revision: Change in statutory reference in rule and in com
mittee note to conform to statutory renumbering.
(2) a description of any property involved; 1980 Revision: Implements 1979 amendment to section 744.447(2),
Florida Statutes.
(3) the price and terms of any sale, mortgage, or
other contract; 1988 Revision: Editorial changes; captions added to subdivisions.
Committee notes revised. Citation form changes in rule and com
mittee notes.
(4) whether the ward has been adjudicated inca
pacitated to act with respect to the rights to be exercised; 1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
(5) whether the action requested conforms to the
1991 Revision: Changes to conform to 1989 revised guardianship
guardianship plan; and law.
(6) the basis for the relief sought. 1992 Revision: Committee notes revised. Citation form changes
in committee notes.
(b) Notice. No notice of a petition to authorize sale
2006 Revision: New (a)(6) added to incorporate 2006 amendment
of perishable personal property or of property rapidly to section 744.441, Florida Statutes. New (c)(3) added to reflect
deteriorating shall be required. Notice of a petition to passage of 2006 amendment to section 737.2065, Florida Statutes.
perform any other act requiring a court order shall be Committee notes revised.
given to the ward, to the next of kin, if any, and to those
2007 Revision: Committee notes revised.
persons who have filed requests for notices and copies
of pleadings. 2008 Revision: Committee notes revised.
(3) the facts constituting the basis for the relief (3) the name and residence address of the natural
sought and that the authority being requested is in the guardians or other persons having legal custody of the
best interest of the ward. minor;
(b) Petition. The petition for approval of a settle (f) Report. A guardian ad litem appointed with re
ment shall contain: spect to a proposed settlement affecting the interests of
a minor shall, not later than 5 days prior to the hearing
(1) the name, residence address, and date of birth on a petition for order authorizing settlement, file and
of the minor; serve a report indicating the guardian ad litem’s deter
mination regarding whether the proposed settlement
(2) the name and address of any guardian ap will be in the best interest of the minor. The report shall
pointed for the minor; include:
RULE 5.636 FLORIDA PROBATE RULES RULE 5.640
(1) a statement of the facts of the minor’s claim § 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court
approval; breach of fiduciary duty.
and the terms of the proposed settlement, including any
§ 744.447, Fla. Stat. Petition for authorization to act.
benefits to any persons or parties with related claims; § 768.23, Fla. Stat. Protection of minors and incompetents.
§ 768.25, Fla. Stat. Court approval of settlements.
(2) a list of the persons interviewed and docu
Rule References
ments reviewed by the guardian ad litem in evaluating
the minor’s claim and proposed settlement; and Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.042 Time.
(3) the guardian ad litem’s analysis of whether the Fla. Prob. R. 5.120 Administrator ad litem and guardian ad litem.
Fla. Prob. R. 5.610 Execution by guardian.
proposed settlement will be in the best interest of the Fla. Prob. R. 5.630 Petition for approval of acts.
minor.
RULE 5.640. CONTINUANCE OF
A copy of the report shall be served on those persons on UNINCORPORATED BUSINESS
whom service is required in subdivision (c) of this rule. OR VENTURE OF WARD
(1) the circumstances of the guardian’s appointment; (1) Contents. A minor’s guardian or the natural
guardians of a minor may petition for the appointment
(2) a description of the property and its estimated of a standby guardian of the person or property of the
value; and minor. The petition shall be verified by the petitioner
and shall state:
(3) the indebtedness, if any, existing against the
ward in this state. (A) the facts to establish venue;
RULE 5.646 FLORIDA PROBATE RULES RULE 5.646
(B) the petitioner’s residence and post office (E) the name and residence and post office ad
address; dress of the proposed standby guardian, and that the
proposed standby guardian is qualified to serve;
(C) the name, age, and residence and post office
address of the minor; (F) the proposed standby guardian’s relationship
to and any previous association with the incapacitated
(D) the names and addresses of the parents of person; and
the minor and, if none, the next of kin known to the
petitioner; (G) the reasons why the proposed standby guard
ian should be appointed.
(E) the name and residence and post office ad
dress of the proposed standby guardian, and that the (2) Notice. Notice of the hearing on the petition
proposed standby guardian is qualified to serve; must be served on the incapacitated person’s next of kin.
(2) Service. The petition for confirmation and no (c) Oath. The surrogate guardian must file with the
tice of hearing shall be served on the incapacitated per court an oath swearing or affirming that the surrogate
son’s next of kin a reasonable time before the hearing guardian will faithfully perform the duties delegated.
on the petition or other pleading seeking confirmation
of the guardian. (d) Termination. Prior to the expiration of the pe
riod granted by court order, the guardian may terminate
Committee Notes the authority of the surrogate guardian by filing a writ
ten notice of the termination with the court and serving
The standby guardian must file an oath pursuant to rule 5.600 it on the surrogate guardian.
before commencing the exercise of authority as guardian. Prior to
appointment, the standby guardian must file an application pursuant
to rule 5.590. Committee Notes
Statutory References
Rule History
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
2006 Revision: New rule.
§ 744.442, Fla. Stat. Delegation of authority.
2008 Revision: Committee notes revised.
RULE 5.648. EMERGENCY TEMPORARY
Statutory Reference GUARDIAN
§ 744.304, Fla. Stat. Standby guardianship.
(a) Petition for Appointment of Emergency
Rule References Temporary Guardian. Prior to appointment of a
guardian but after a petition for determination of inca
Fla. Prob. R. 5.590 Application for appointment as guardian; dis pacity has been filed, the alleged incapacitated person
closure statement; filing. or any adult interested in the welfare of that person
Fla. Prob. R. 5.600 Oath.
may petition for the appointment of an emergency tem
porary guardian of the person or property. The petition
RULE 5.647. SURROGATE GUARDIAN shall be verified and shall state:
(a) Petition for Designation of Surrogate Guard (1) the petitioner’s residence and post office address;
ian. A guardian may file a petition to designate a sur
rogate guardian to exercise the powers of the guardian (2) the name, age, and residence and post office
if the guardian is unavailable to act. The surrogate must address of the alleged incapacitated person;
be a professional guardian. The petition shall state:
(3) that there appears to be imminent danger that
(1) the name and business address of the surrogate the physical or mental health or safety of the alleged
guardian; incapacitated person will be seriously impaired or that
the alleged incapacitated person’s property is in danger
(2) the requested duration of the appointment; and of being wasted, misappropriated, or lost unless imme
diate action is taken;
(3) the powers to be exercised by the surrogate
guardian. (4) the nature of the emergency and the reason im
mediate action must be taken;
(b) Service. The petition for appointment of a sur
rogate guardian shall be served on all interested per (5) the extent of the emergency temporary guard
sons and the ward, unless the ward is a minor. ianship, either limited or plenary, requested for the
RULE 5.648 FLORIDA PROBATE RULES RULE 5.649
alleged incapacitated person, and, if known, the nature With approval of the court, service on the ward may be
and value of the property to be subject to the emer accomplished by serving the attorney for the ward.
gency temporary guardianship;
(1) If the emergency temporary guardian is a
(6) the names and addresses of the next of kin of the guardian of the property, the final report shall consist
alleged incapacitated person known to the petitioner; of a verified inventory of the ward’s property as of the
date letters of emergency temporary guardianship were
(7) the name and residence and post office address issued, a final accounting that gives a full and correct
of the proposed emergency temporary guardian, and account of the receipts and disbursements of all the
that the proposed emergency temporary guardian is ward’s property over which the guardian had control,
qualified to serve, or that a willing and qualified emer and a statement of the property on hand at the end of
gency temporary guardian has not been located, and; the emergency temporary guardianship.
(8) the proposed emergency temporary guardian’s (2) If the emergency temporary guardian is a
relationship to or any previous association with the al guardian of the person, the final report shall summarize
leged incapacitated person. the activities of the guardian with regard to residential
placement, medical condition, mental health and reha
(b) Notice. Unless the court orders otherwise, bilitative services, and the social condition of the ward
notice of filing of the petition for appointment of an to the extent of the authority granted to the emergency
emergency temporary guardian and any hearing on temporary guardian.
the petition shall be served before the hearing on the
petition on the alleged incapacitated person and on the (3) If the emergency temporary guardian becomes
alleged incapacitated person’s attorney.
the successor guardian of the property or person of the
ward, the final report must satisfy the requirements of,
(c) Service on Public Guardian. If the petitioner
and shall serve as, the initial report of the guardian of
requests appointment of the public guardian as emer
the property or person of the ward, as the case may be,
gency temporary guardian, a copy of the petition and
as set forth in rule 5.690.
notice shall be served on the public guardian.
Rule History
(d) Order. The order appointing the emergency
temporary guardian shall specify the powers and duties 2007 Revision: New rule.
of the emergency temporary guardian.
Statutory Reference
(e) Extension of Authority. Prior to the expiration § 744.3031, Fla. Stat. Emergency temporary guardianship.
of the authority of the emergency temporary guardian, § 744.344(4), Fla. Stat. Order of appointment.
any interested person may file a verified petition for Rule References
extension of authority of the emergency temporary
guardian. The petition must show that the conditions Fla. Prob. R. 5.600 Oath.
that warranted the initial appointment of the emer Fla. Prob. R. 5.690 Initial guardianship report.
gency temporary guardian still exist. The petition shall
be served on the ward’s attorney and on the emergency RULE 5.649. GUARDIAN ADVOCATE
guardian.
(a) Petition for Appointment of Guardian
(f) Final Report. An emergency temporary guard Advocate. A petition to appoint a guardian advocate
ian shall file a final report no later than 30 days after the for a person with a developmental disability may be
expiration of the emergency temporary guardianship. executed by an adult person who is a resident of this
A copy of the final report shall be served on the succes state. The petition must be verified by the petitioner
sor guardian, if any, the ward, and the ward’s attorney. and must state:
RULE 5.649 FLORIDA PROBATE RULES RULE 5.649
(1) the name, age, and present address of the pe in the petition. The notice must also state the date of
titioner and the petitioner’s relationship to the person the hearing on the petition.
with a developmental disability;
(3) The notice must state that the person with a
(2) the name, age, county of residence, and present developmental disability has the right to be represented
address of the person with a developmental disability; by counsel of the person’s own choice and that if the
person cannot afford an attorney, the court shall ap
(3) that the petitioner believes that the person point one.
needs a guardian advocate and the factual information
on which such belief is based; (c) Counsel. Within 3 days after a petition has been
filed, the court shall appoint an attorney to represent a
(4) the exact areas in which the person lacks the
person with a developmental disability who is the sub
ability to make informed decisions about the person’s
ject of a petition to appoint a guardian advocate. The
care and treatment services or to meet the essential re
person with a developmental disability may substitute
quirements for the person’s physical health or safety;
his or her own attorney for the attorney appointed by
(5) the legal disabilities to which the person is the court.
subject;
(d) Order. If the court finds the person with a de
(6) the name of the proposed guardian advocate, velopmental disability requires the appointment of a
the relationship of that person to the person with a de guardian advocate, the order appointing the guardian
velopmental disability, the relationship of the proposed advocate shall contain findings of facts and conclu
guardian advocate with the providers of health care sions of law, including:
services, residential services, or other services to the
person with developmental disabilities, and the reason (1) the nature and scope of the person’s inability
why this person should be appointed. If a willing and to make decisions;
qualified guardian advocate cannot be located, the peti
tion shall so state; and (2) the exact areas in which the individual lacks
ability to make informed decisions about care and treat
(7) whether the petitioner has knowledge, infor ment services or to meet the essential requirements for
mation, or belief that the person with a developmental the individual’s physical health and safety;
disability has executed an advance directive under
chapter 765, Florida Statutes, or a durable power of (3) if the person has executed an advance direc
attorney under chapter 709, Florida Statutes. tive or durable power of attorney, a determination as to
whether the documents sufficiently address the needs
(b) Notice.
of the person and a finding that the advance directive
or durable power of attorney does not provide an alter
(1) Notice of the filing of the petition must be given
native to the appointment of a guardian advocate that
to the person with a developmental disability, both ver
sufficiently addresses the needs of the person with a
bally and in writing, in the language of the person and
in English. Notice must also be given to the person with developmental disability;
a developmental disability’s next of kin, any designated
health care surrogate, an attorney-in-fact designated in (4) if a durable power of attorney exists, the pow
a durable power of attorney, and such other persons as ers of the attorney-in-fact, if any, that are suspended
the court may direct. A copy of the petition to appoint a and granted to the guardian advocate;
guardian advocate must be served with the notice.
(5) if an advance directive exists and the court de
(2) The notice must state that a hearing will be held termines that the appointment of a guardian advocate is
to inquire into the capacity of the person with a devel necessary, the authority, if any, the guardian advocate
opmental disability to exercise the rights enumerated shall exercise over the health care surrogate;
RULE 5.649 FLORIDA PROBATE RULES RULE 5.650
(6) the specific legal disabilities to which the per (3) the names and addresses of the successor
son with a developmental disability is subject; guardian and the successor guardian’s attorney, or that
a successor guardian has not yet been appointed or
(7) the name of the person selected as guardian duly qualified.
advocate; and
(c) Final Report. A resigning guardian of the prop
(8) the powers, duties, and responsibilities of the erty shall file a final report showing receipts, disburse
guardian advocate, including bonding of the guardian ments, amounts reserved for unpaid and anticipated
advocate as provided by law. costs and fees, and other relevant financial informa
tion from the date of the previous annual accounting,
Committee Notes
and a list of assets to be turned over to the successor
Rule History guardian.
2008 Revision: New rule. (d) Notice. A notice shall be served stating that:
Statutory References
(1) any objection shall be in writing and shall state
§ 393.063(9), Fla. Stat. Definitions. with particularity each item to which the objection is
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 709.08, Fla. Stat. Durable power of attorney. directed and the grounds on which the objection is
§ 765.101, Fla. Stat. Definitions. based;
§ 765.104, Fla. Stat. Amendment or revocation.
§ 765.202, Fla. Stat. Designation of a health care surrogate.
§ 765.204, Fla. Stat. Capacity of principal; procedure.
(2) any objection to the resignation, petition for
§ 765.205(3), Fla. Stat. Responsibility of the surrogate. discharge, or final report shall be filed within 30 days
§ 765.302, Fla. Stat. Procedure for making a living will; notice from the date of service of the petition for discharge;
to physician. and
§ 765.401, Fla. Stat. The proxy.
(h) Discharge. The guardian’s resignation shall not 1992 Revision: Committee notes revised. Citation form changes
be accepted and the guardian shall not be discharged in committee notes.
until all objections have been withdrawn, abandoned, 2007 Revision: Subdivision (i) deleted because right of waiver is
or judicially resolved and a successor guardian has been substantive. Subsequent subdivisions relettered.
appointed and duly qualified. After all objections have
been withdrawn, abandoned, or judicially resolved, if 2008 Revision: Subdivision (k) added to include guardian advo
the court is satisfied that the resigning guardian has cates. Committee notes revised.
faithfully discharged the duties of the guardianship and Statutory References
the interests of the ward are protected, and the resign
ing guardian of the property has delivered the assets of § 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
the ward, all guardianship records, and all money due § 744.102(11), Fla. Stat. Definitions.
to the ward from the guardian to the remaining or suc § 744.3085, Fla. Stat. Guardian advocates.
§ 744.467, Fla. Stat. Resignation of guardian.
cessor guardian, the court shall enter an order accept § 744.471, Fla. Stat. Appointment of successor.
ing resignation of guardian and granting discharge.
Rule References
(i) Disqualification. Any guardian who is improp
Fla. Prob. R. 5.040 Notice.
erly appointed, or who becomes disqualified to act Fla. Prob. R. 5.041 Service of pleadings and papers.
after appointment, shall immediately file a resignation Fla. Prob. R. 5.180 Waiver and consent.
and petition for discharge and proceed in accordance Fla. Prob. R. 5.610 Execution by guardian.
with this rule. Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.681 Restoration of rights of person with develop
mental disability.
(j) Nonresident Guardians. Nonresident guard
ians appointed before October 1, 1989, shall not be
RULE 5.660. PROCEEDINGS FOR REMOVAL
automatically disqualified to serve and shall not be
OF GUARDIAN
required to resign and initiate their own removal.
(k) Guardian Advocates. This rule shall apply to (a) Notice. Proceedings for removal of a guardian
guardian advocates, except that a final report shall be may be instituted by a court, by any surety or other
required of a guardian advocate only if the guardian interested person, or by the ward, and formal notice of
advocate’s authority included the management of the the petition for removal of a guardian shall be served
property of the person with a developmental disability. on all guardians, other interested persons, next of kin,
and the ward. The pleading shall state with particular
Committee Notes ity the reasons why the guardian should be removed.
Rule History
(b) Accounting. A removed guardian shall file with
1975 Revision: Substantially the same as sections 744.467 and the court an accounting for the guardianship within 20
744.471, Florida Statutes, with editorial changes. days after the guardian’s removal. A copy of the ac
counting shall be served on the successor guardian and
1977 Revision: No change in rule. Change in committee note to
conform to statutory renumbering. the ward, unless the ward is a minor.
1988 Revision: Editorial changes in (a). Text of rule 5.590 in (c) Transfer of Property and Records. The re
serted in (b). Editorial change in (c). Captions added to subdivisions.
moved guardian (or the guardian’s heirs, personal rep
Committee notes revised. Citation form changes in committee notes.
resentative, or surety) shall turn over all the property
1989 Revision: Prior rule deleted and replaced by temporary of the ward in the removed guardian’s control and all
emergency rule. guardianship records to the duly qualified successor.
1991 Revision: Substantial revision of entire rule to harmonize with
The successor guardian shall, or the ward may, demand
procedure for termination of guardianship under rules 5.670 and 5.680. of the removed guardian (or the guardian’s heirs, per
Subdivision (k) transferred from temporary emergency rule 5.800. sonal representative, or surety) all of those items.
RULE 5.660 FLORIDA PROBATE RULES RULE 5.670
1980 Revision: Subdivision (a) amended to specifically authorize (b) Contents of Petition. The petition for discharge
any guardian or next of kin to file the petition and to require formal shall state:
notice in conformity with rule 5.630(b).
1984 Revision: Subdivision (b) amended to conform to statute. (1) that the grounds set forth in subdivision (a)
Editorial changes and committee notes revised. have occurred;
1988 Revision: Subdivision (a) rewritten for clarity. Language (2) that the guardian has fully administered the
in (b) deleted as surplusage. Editorial change in caption of (c).
Committee notes revised. Citation form change in committee notes.
Florida guardianship; and
1989 Revision: Prior rule deleted and replaced by temporary (3) the amount of compensation to be paid to the
emergency rule. guardian and to the attorneys, accountants, or other
agents employed by the guardian.
1991 Revision: Subdivision (a) amended to require that the peti
tion allege specific reasons why the guardian should be removed and
to require service of the petition on the ward. Otherwise, editorial (c) Final Report. The Florida guardian of the prop
changes in all subdivisions. erty shall file a final report showing receipts, disburse
ments, amounts reserved for unpaid and anticipated
1992 Revision: Citation form changes in committee notes. costs and fees, and other relevant financial informa
2006 Revision: Requirement in (b) to serve minors deleted to con
tion from the date of the previous annual accounting,
form to 2006 amendment to section 744.511, Florida Statutes. and a list of the assets to be turned over to the foreign
guardian.
2008 Revision: Subdivision (e) added to include guardian advo
cates. Committee notes revised. (d) Notice. The Florida guardian of the property
Statutory References shall publish a notice as required by law, which shall
state:
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
§ 744.3085, Fla. Stat. Guardian advocates. (1) the name of the ward;
§ 744.474, Fla. Stat. Reasons for removal of guardian.
§ 744.477, Fla. Stat. Proceedings for removal of a guardian.
§ 744.511, Fla. Stat. Accounting upon removal. (2) the file number of the guardianship;
§ 744.514, Fla. Stat. Surrender of property upon removal.
§ 744.517, Fla. Stat. Proceedings for contempt. (3) the designation and address of the court;
RULE 5.670 FLORIDA PROBATE RULES RULE 5.670
(4) the name and address of the guardian and the (h) Discharge. The Florida guardian may not be
guardian’s attorney; discharged until all objections have been withdrawn,
abandoned, or judicially resolved. After all objections
(5) the name and address of the foreign guardian have been withdrawn, abandoned, or judicially re
and the foreign guardian’s attorney, if any; solved, if the court is satisfied that the Florida guardian
has faithfully discharged the duties of the guardianship
(6) the date of first publication;
and the interests of the ward are protected, and the
Florida guardian of the property has delivered the as
(7) that a petition for discharge has been filed upon
the grounds of change of domicile of the ward; sets of the ward to the foreign guardian, the court shall
enter an order of discharge.
(8) the date the guardian will apply for discharge;
Committee Notes
(9) that the jurisdiction of the ward will be trans Rule History
ferred to the foreign jurisdiction;
1977 Revision: Change in committee notes to conform to statu
(10) that any objection shall be in writing and shall tory renumbering.
state with particularity each item to which the objec
1984 Revision: Adds 30-day requirement for filing objections.
tion is directed and the grounds on which the objection Editorial changes and committee notes revised.
is based;
1988 Revision: Editorial change in (c). First and last sentences of
(11) that any objection to the final report or the (d) deleted and clarifying word added.
petition for discharge shall be filed within the later
1989 Revision: Prior rule adopted as temporary emergency rule.
of 30 days from the date of service of the petition for
discharge or the date of first publication of the notice; 1991 Revision: Substantial revision of entire rule to harmo
and nize with procedure for discharge of guardian under rule 5.680 and
to conform to section 744.524, Florida Statutes.
(12) that within 90 days after filing of the objec
1992 Revision: Committee notes revised. Citation form changes
tion, a notice of hearing thereon shall be served or the
in committee notes.
objection is abandoned.
2007 Revision: Subdivision (i) deleted because right of waiver is
(e) Service. A copy of the petition for discharge and substantive. Committee notes revised.
of the notice of petition for discharge shall be served
on the foreign guardian and such other persons as the 2008 Revision: Committee notes revised.
court may direct.
Statutory References
(f) Objections. Objections shall be in the form and § 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
be filed within the time set forth in the notice of peti § 744.102(8), (9), Fla. Stat. Definitions.
tion for discharge. A copy of the objections shall be § 744.201, Fla. Stat. Domicile of ward.
served by the objector on the Florida guardian and the § 744.202, Fla. Stat. Venue.
§ 744.2025, Fla. Stat. Change of ward’s residence.
foreign guardian. § 744.524, Fla. Stat. Termination of guardianship on change of
domicile of resident ward.
(g) Disposition of Objections. Any interested per § 744.531, Fla. Stat. Order of discharge.
son may set a hearing on the objections. Notice of the
hearing shall be served on the Florida guardian, the Rule References
foreign guardian, and any other interested persons. If a
Fla. Prob. R. 5.041 Service of pleadings and papers.
notice of hearing on the objections is not served within Fla. Prob. R. 5.180 Waiver and consent.
90 days of filing of the objections, the objections will Fla. Prob. R. 5.610 Execution by guardian.
be deemed abandoned. Fla. Prob. R. 5.680 Termination of guardianship.
RULE 5.680 FLORIDA PROBATE RULES RULE 5.680
RULE 5.680. TERMINATION OF (3) that within 90 days after filing of the objection,
GUARDIANSHIP a notice of hearing thereon shall be served or the objec
tion is abandoned.
(a) Petition for Discharge. When the ward has
become sui juris, has terminated a voluntary guardian (e) Service. The guardian applying for discharge
ship, has been restored to capacity, has had all rights shall serve a copy of the petition for discharge and fi
restored, or has died, or when the guardian has been nal report on the ward, on the personal representative
unable to locate the ward after diligent search, or, for of a deceased ward, or if there are no assets justifying
a guardian of the property, when the property subject qualification of a personal representative for the estate
to the guardianship has been exhausted, the guardian of a deceased ward, on the known next of kin of the de
shall file a petition for discharge. A guardian of the ceased ward, or such other persons as the court may di
person is discharged without further proceeding upon rect; provided however, that a guardian of the property
filing a certified copy of the ward’s death certificate. who is subsequently appointed personal representative
shall serve a copy of the petition for discharge and final
(b) Contents of Petition. The petition for discharge report on all beneficiaries of the ward’s estate.
shall state:
(f) Objections. All persons served shall have 30
(1) the reason for termination of the guard days to file objections to the petition for discharge
ianship; and final report. The objections shall state with par
ticularity the items to which the objections are directed
(2) that the guardian has fully administered the and shall state the grounds on which the objections are
guardianship; and based. Copies of the objections shall be served by the
objector on the guardian. Any interested person may
(3) the amount of unpaid and anticipated costs and set a hearing on the objections. Notice of the hearing
fees to be paid to the guardian and to the attorneys, ac shall be served on the guardian and any other interested
countants, or other agents employed by the guardian. persons. If a notice of hearing on the objections is not
served within 90 days of filing of the objections, the
(c) Final Report. The guardian of the property shall objections will be deemed abandoned. The guardian
promptly file a final report. If the ward has died, the may not be discharged until all objections have been
guardian must file the report no later than 45 days after withdrawn, abandoned, or judicially resolved, and the
he or she has been served with letters of administra petition for discharge of the guardian is granted by the
tion, letters of curatorship, or an order of summary ad court.
ministration. The report shall show receipts, disburse
ments, amounts reserved for unpaid and anticipated (g) Discharge. The guardian may not be discharged
disbursements, costs, and fees, including the amounts until all objections are withdrawn, abandoned, or ju
set forth in subdivision (b)(3), and other relevant finan dicially resolved. After all objections are withdrawn,
cial information from the date of the previous annual abandoned, or judicially resolved, and if it appears that
accounting, and a list of the assets to be turned over to the guardian has paid all amounts reserved to the per
the person entitled to them. sons entitled to them and has made full and complete
distribution of the ward’s assets to the persons entitled
(d) Notice. A notice shall be served stating: to them and has otherwise faithfully discharged the du
ties of the guardian, the court shall grant the petition
(1) that any objection shall be in writing and shall for discharge and enter an order of discharge. If objec
state with particularity each item to which the objec tions are filed and are not withdrawn, abandoned, or
tion is directed and the grounds on which the objection judicially resolved, the court shall conduct a hearing
is based; in the same manner as for a hearing on objections to
annual guardianship plans. After hearing, if the court
(2) that any objection to the final report or the pe is satisfied that the guardian has faithfully discharged
tition for discharge shall be filed within 30 days from the duties of the guardianship and the interests of the
the date of service of the petition for discharge; and ward are protected, and the guardian has rendered a
RULE 5.680 FLORIDA PROBATE RULES RULE 5.681
complete and accurate final report and has delivered Fla. Prob. R. 5.552 Voluntary guardianship of property.
Fla. Prob. R. 5.610 Execution by guardian.
the assets of the ward to the person entitled to them, the
Fla. Prob. R. 5.681 Restoration of rights of person with develop
court shall enter an order of discharge. mental disability.
Committee Notes
RULE 5.681. RESTORATION OF
Rule History RIGHTS OF PERSON WITH
DEVELOPMENTAL DISABILITY
1975 Revision: Implements sections 744.527 and 744.531, Florida
Statutes, and also requires the guardian applying for discharge to do
so by filing a petition for discharge and provides the procedure per (a) Contents of Petition. A petition for restoration
taining thereto. of rights of a person with a developmental disability
shall contain:
1977 Revision: No change in rule. Change in committee note to
conform to statutory renumbering.
(1) facts that support the suggestion that restora
1988 Revision: Captions added to subdivisions. Committee notes tion is feasible and would not pose a detriment to the
revised. Citation form changes in committee notes.
health or welfare of the ward; and
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule. (2) a statement that the person with a developmen
tal disability is capable of exercising some or all of the
1991 Revision: Substantial revision of entire rule to harmonize
with procedure for discharge of personal representatives under rules rights that were granted to the guardian advocate.
5.400 and 5.401.
(b) Counsel. Within 3 days after filing the petition,
1992 Revision: Committee notes revised. Citation form changes
in committee notes. counsel shall be appointed for the person for whom a
guardian advocate has been appointed as provided by law.
1996 Revision: Editorial changes to clarify that all anticipated
costs and fees should be shown on final report and thereafter paid
prior to transfer of assets and discharge of guardian.
(c) Notice. Upon the appointment of counsel, the
clerk shall immediately send notice of the filing of the
2003 Revision: Subdivision (a) amended to reflect addition of rule petition, together with a copy of the petition, to the per
5.552 dealing with voluntary guardianship of property. Committee son for whom a guardian advocate was appointed, the
notes revised.
person’s guardian advocate, the person’s attorney, and
2006 Revision: Subdivision (c) amended to conform to 2006 any other interested person as directed by the court.
amendments to section 744.527, Florida Statutes. Subdivision (h) The notice must contain a statement that all objections
deleted as unnecessary because substantive right of waiver is pro
vided by section 731.302, Florida Statutes.
to the petition must be filed within 20 days after ser
vice of the notice. Formal notice shall be served on the
2008 Revision: Reference to restoration of rights added in subdi guardian advocate. Informal notice may be served on
vision (a). Committee notes revised. the other persons. The clerk shall file proof of service.
Statutory References Notice need not be served on the petitioner.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate. (d) Objections. Any objection shall be in writing and
§ 744.521, Fla. Stat. Termination of guardianship. shall state with particularity each item to which the objec
§ 744.527, Fla. Stat. Final reports and application for discharge;
hearing. tion is directed and the grounds on which the objection is
§ 744.528, Fla. Stat. Discharge of guardian named as personal based. The objector shall serve a copy of the objection on
representative. the person with the developmental disability, the person’s
§ 744.531, Fla. Stat. Order of discharge.
§ 744.534, Fla. Stat. Disposition of unclaimed funds held by
attorney, the person’s guardian advocate, and any other
guardian. interested persons as directed by the court.
the rights that were granted to the guardian advocate. (b) Petition. At any time after the appointment of a
If only some rights are restored to the person with a guardian, the guardian, the ward, the ward’s attorney,
developmental disability, the order must state which if any, or any other interested person may file a verified
rights are restored and amend the letters of guardian petition stating that there is an alternative to guardian
advocacy accordingly. ship that will sufficiently address the problems of the
ward.
(2) Without Hearing. If the petitioner has attached
(c) Contents of Petition. The petition to determine
evidence supporting the petition and if no objection is
alternatives to guardianship shall state:
filed, the court may restore all or some of the person’s
rights that were granted to a guardian advocate.
(1) the petitioner’s interest in the proceeding; and
(f) Amended Plan. Within 60 days after the order (2) the facts constituting the basis for the relief
restoring rights is entered, the guardian advocate shall sought and that the proposed alternative to guardian
file an amended plan. A copy of the amended plan and ship will sufficiently address the problems of the ward
accounting shall be served on the person with a devel and is in the ward’s best interest.
opmental disability and the person’s attorney.
(d) Service. The petition shall be served on the
Committee Notes
guardian, the ward, the ward’s attorney, if any, those
Rule History interested persons who have filed requests for notices
and copies of pleadings, and such other persons as the
2008 Revision: New rule. court may direct.
Statutory References
(e) Order. The order shall specify whether there is
§ 393.063(9), Fla. Stat. Definitions. an alternative to guardianship that will sufficiently ad
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate. dress the problems of the ward, the continued need for
§ 709.08, Fla. Stat. Durable power of attorney. a guardian, and the extent of the need for delegation of
§ 765.101, Fla. Stat. Definitions. the ward’s rights.
§ 765.104, Fla. Stat. Amendment or revocation.
§ 765.202, Fla. Stat. Designation of a health care surrogate.
Committee Notes
§ 765.204, Fla. Stat. Capacity of principal; procedure.
§ 765.205(3), Fla. Stat. Responsibility of the surrogate. Rule History
§ 765.302, Fla. Stat. Procedure for making a living will; notice
to physician. 2006 Revision: New rule.
§ 765.401, Fla. Stat. The proxy.
Statutory References
Rule References
§ 744.331, Fla. Stat. Procedures to determine incapacity.
Fla. Prob. R. 5.020 Pleadings; verification; motions. § 744.462, Fla. Stat. Determination regarding alternatives to guard
Fla. Prob. R. 5.540 Hearings. ianship.
Fla. Prob. R. 5.541 Recording of hearings.
Fla. Prob. R. 5.680 Termination of guardianship.
RULE 5.690. INITIAL GUARDIANSHIP
REPORT
RULE 5.685. DETERMINATION REGARDING
ALTERNATIVES TO (a) Contents and Filing. An initial guardianship
GUARDIANSHIP report shall be filed within 60 days after the issuance
of letters of guardianship. The guardian of the property
(a) Reporting by Guardian. The guardian shall shall file the initial guardianship report consisting of
promptly file a report attaching a copy of a final order the verified inventory. The guardian of the person shall
or judgment that determines the validity of a ward’s file the initial guardianship report consisting of the
durable power of attorney, trust, or trust amendment. guardianship plan.
RULE 5.690 FLORIDA PROBATE RULES RULE 5.695
(b) Service. Copies of the initial guardianship report of the person shall file an annual guardianship plan
shall be served on the ward, unless the ward is a minor within 90 days after the last day of the anniversary
under the age of 14 years or is totally incapacitated, month in which the letters of guardianship were issued.
and the attorney for the ward, if any. With approval of The plan shall be for the year ending on the last day of
the court, service on the ward may be accomplished by such anniversary month. If the court requires reporting
serving the attorney for the ward. on a calendar year basis, the guardianship plan shall be
filed on or before April 1 of each year.
Committee Notes
The committee recognizes the conflict between this rule and sec
(2) Guardian of the Property. Unless the court
tion 744.362, Florida Statutes, which requires the filing of the initial requires or authorizes reporting on a fiscal year basis,
guardianship report (which includes the inventory) within 60 days the guardian of the property shall file an annual ac
after appointment. The committee believes this provision, which counting on or before April 1 of each year. The annual
attempts to regulate when a paper must be filed with the court, is
procedural and that a guardian may not receive letters of guardian
accounting shall cover the preceding annual account
ship empowering the guardian to act contemporaneously with the ing period. If the court requires or authorizes reporting
appointment. Therefore, the issuance of letters is a more practical on a fiscal year basis, the annual accounting shall be
time from which to measure the beginning of the time period for the filed on or before the first day of the fourth month after
accomplishment of this act.
the end of the fiscal year.
In the event the guardian of the property and the guardian of the
person are not the same entity or person, they shall make a good faith (b) Service. Copies of the annual plan and account
effort to jointly file the initial guardianship report. ing shall be served on the ward, unless the ward is a
Rule History
minor or is totally incapacitated, and the attorney for
the ward, if any. With the approval of the court, service
1991 Revision: New rule. on the ward may be accomplished by serving the at
torney for the ward. The guardian shall serve copies on
1992 Revision: Addition of phrase in subdivision (b) to conform
to 1992 amendment to section 744.362(1), Florida Statutes. Citation
such other persons as the court may direct.
form changes in committee notes.
Committee Notes
Statutory References
The annual guardianship report consists of the annual plan for the
guardian of the person and the annual accounting for the guardian
§ 744.362, Fla. Stat. Initial guardianship report.
of the property.
§ 744.363, Fla. Stat. Initial guardianship plan.
§ 744.365, Fla. Stat. Verified inventory.
For annual guardianship reports regarding minors, see rule 5.555.
§ 744.3701, Fla. Stat. Inspection of report.
§ 744.384, Fla. Stat. Subsequently discovered or acquired property.
With approval of the court, service on the ward may be accom
plished by service on the attorney for the ward, if any. The committee
Rule References was concerned that actual service on a ward of the accounting or
guardianship plan may give uninterested persons access to financial
Fla. Prob. R. 5.020 Pleadings; verification; motions. or personal information to the detriment of the ward. The committee
Fla. Prob. R. 5.041 Service of pleadings and papers. believes that under such circumstances, the guardian of the property
Fla. Prob. R. 5.060 Request for notices and copies of pleadings. could seek an order under section 744.371(5), Florida Statutes, even
Fla. Prob. R. 5.180 Waiver and consent. if the ward’s circumstances were set out in detail in a pleading other
Fla. Prob. R. 5.610 Execution by guardian. than the annual guardianship report. Such court order may be sought
Fla. Prob. R. 5.620 Inventory. in appropriate circumstances at the time of the initial hearing to de
Fla. Prob. R. 5.700 Objection to guardianship reports. termine incapacity.
determine in order that the court may inquire as to any matter relat The annual accounting shall include:
ing to the physical and financial well-being of the ward. This appears
to be in conflict with section 744.437, Florida Statutes, which refers
to “every guardian” but in the same sentence it refers to “at the time (1) a full and correct account of the receipts and
the guardian files his annual return” and only the guardian of the disbursements of all of the ward’s property over which
property is required to file an annual accounting. the guardian has control and a statement of the ward’s
1977 Revision: No change in rule. Change in committee note to property on hand at the end of the accounting period;
conform to statutory renumbering. and
1980 Revision: Subdivision (e) amended to avoid conflict with
statutory changes in section 744.437, Florida Statutes (1979). (2) a copy of the statements of all of the ward’s
cash accounts as of the end of the accounting period
1988 Revision: Matter in (b) deleted; covered in sections 744.427(2) from each institution where the cash is deposited.
and 744.434, Florida Statutes. Subdivision (c) deleted; covered in
section 744.427(4), Florida Statutes. Captions added to subdivisions.
Committee notes revised. Citation form changes in committee notes. (b) Substantiating Papers. Unless otherwise or
dered by the court, the guardian need not file the papers
1989 Revision: Prior rule deleted and replaced by temporary
substantiating the annual accounting. Upon reasonable
emergency rule.
written request, the guardian of the property shall make
1991 Revision: Substantial changes and rule renumbered. the substantiating papers available for examination to
persons entitled to receive or inspect the annual ac
1992 Revision: Addition of language in subdivisions (a)(1) and (a)
(2) to implement 1992 amendments to sections 744.367(1) and (2), counting. Substantiating papers need not be filed with
Florida Statutes. Committee notes revised. Citation form changes in the court unless so ordered.
committee notes.
2006 Revision: Requirement in (b) to serve minors age 14 and (c) Interim Inspection of Records. Upon reason
above deleted to conform to amendment to section 744.367(3), able written request and notice, the guardian of the
Florida Statutes. Committee notes revised. property shall make all material financial records per
Statutory References taining to the guardianship available for inspections to
those persons entitled to receive or inspect the annual
§ 744.367, Fla. Stat. Duty to file annual guardianship report. accounting.
§ 744.3675, Fla. Stat. Annual guardianship plan.
§ 744.3678, Fla. Stat. Annual accounting.
Committee Notes
§ 744.3685, Fla. Stat. Order requiring guardianship report; contempt.
§ 744.3701, Fla. Stat. Inspection of report.
§ 744.371, Fla. Stat. Relief to be granted. Rule History
§ 744.3735, Fla. Stat. Annual appearance of the guardian.
1991 Revision: New rule.
Rule References
1992 Revision: Citation form changes in committee notes.
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.041 Service of pleadings and papers. Statutory References
Fla. Prob. R. 5.060 Request for notices and copies of pleadings.
Fla. Prob. R. 5.180 Waiver and consent. § 744.367, Fla. Stat. Duty to file annual guardianship report.
Fla. Prob. R. 5.552 Voluntary guardianship of property. § 744.3678, Fla. Stat. Annual accounting.
Fla. Prob. R. 5.555 Guardianships of minors. § 744.3701, Fla. Stat. Inspection of report.
Fla. Prob. R. 5.610 Execution by guardian. § 744.3735, Fla. Stat. Annual appearance of the guardian.
Fla. Prob. R. 5.700 Objection to guardianship reports.
Fla. Prob. R. 5.800(b) Application of revised chapter 744 to exist Rule References
ing guardianships.
Fla. Prob. R. 5.020 Pleadings; verification; motions.
RULE 5.696. ANNUAL ACCOUNTING Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.060 Request for notices and copies of pleadings.
Fla. Prob. R. 5.610 Execution by guardian.
(a) Contents and Filing. The guardian of the prop Fla. Prob. R. 5.695 Annual guardianship report.
erty shall file an annual accounting as required by law. Fla. Prob. R. 5.700 Objection to guardianship reports.
RULE 5.697 FLORIDA PROBATE RULES RULE 5.697
RULE 5.697. MAGISTRATES’ REVIEW and take testimony from the parties and their witnesses
OF GUARDIANSHIP under oath, on all matters authorized by the court for
INVENTORIES, ACCOUNTINGS, review by the magistrate and may require production
AND PLANS of all books, papers, writings, vouchers, and other
documents applicable to those matters. The magistrate
(a) General Magistrates. The court may appoint shall admit only evidence that would be admissible in
general magistrates to review guardianship invento court. The magistrate may take all actions concerning
ries, accountings, and plans. General magistrates shall evidence that may be taken by the court.
be members of The Florida Bar and shall continue in
office until removed by the court. The order appointing (e) Magistrate’s Report. The magistrate’s report
a general magistrate shall be recorded. Each general shall contain a description of the matters considered
magistrate shall take the oath required of officers of and the magistrate’s conclusions and any recom
the court by the Florida Constitution. The oath shall be mendations. No part of any statement of facts, account,
recorded before the magistrate begins to act. charge, deposition, examination, or answer used before
the magistrate shall be recited. The magistrate shall be
(b) Special Magistrates. In connection with the required to file a report only if a hearing is held pur
court’s review of guardianship inventories, accountings, suant to subdivision (d) of this rule or if specifically
and plans, the court may appoint members of The Florida directed to do so by the court.
Bar as special magistrates for any particular service re
quired by the court. Special magistrates shall be governed (f) Filing Report; Service; Exceptions. The mag
by all laws and rules relating to general magistrates except istrate shall file a report with the court and serve copies
special magistrates shall not be required to take an oath on the parties. The parties may serve exceptions to the
unless specifically required by the court. For good cause report within 10 days from the date the report is served
shown, the court may appoint a person other than a mem on them. If no exceptions are timely filed, the court
ber of The Florida Bar as a special magistrate. shall take appropriate action on the report. All timely
filed exceptions shall be heard by the court on reason
(c) General Powers and Duties. Every magistrate able notice by any party.
shall act under the direction of the court. Process is
sued by a magistrate shall be directed as provided by Committee Notes
law. All grounds for disqualification of a judge shall Rule History
apply to magistrates.
1991 Revision: This is a new rule, patterned after Florida Rule of
Civil Procedure 1.490.
(d) Hearings. Hearings before any magistrate may
be held in the county where the action is pending, or 1992 Revision: Editorial change. Citation form change in com
at any other place by order of the court for the con mittee notes.
venience of the witnesses or the parties. A magistrate
shall give notice of hearings to all parties. If any party 2004 Revision: Change in nomenclature from “master” to “magis
trate” to track similar change in the Florida Statutes.
fails to appear, the magistrate may proceed ex parte or
may continue the hearing to a future day, with notice 2007 Revision: Title of rule and subdivisions (a) and (b) amended
to the absent party. The magistrate shall proceed with to include inventories. “Shall” substituted for “may” in last sentence
reasonable diligence and the least practicable delay. of subdivision (f). Committee notes revised.
Any party may apply to the court for an order direct Statutory Reference
ing the magistrate to accelerate the proceedings and
to make a report promptly. Evidence shall be taken in § 744.369(2), Fla. Stat. Judicial review of guardianship reports.
writing or by electronic recording by the magistrate or
Rule References
by some other person under the magistrate’s author
ity in the magistrate’s presence and shall be filed with Fla. Prob. R. 5.095 General and special magistrates.
the magistrate’s report. The magistrate may examine Fla. R. Civ. P. 1.490 Magistrates.
RULE 5.700 FLORIDA PROBATE RULES RULE 5.710
(a) Objections. The ward, or any other interested (a) Contents. A petition for interim judicial review
person, may file an objection to any part of a guard shall be verified, state the petitioner’s interest in the
ianship report within the time provided by law. proceeding, state with particularity the manner in
which the guardian’s action or proposed action does
(b) Contents. Any objection shall be in writing not comply with or exceeds the guardian’s authority
under the guardian plan, and state why the action or
and shall state with particularity each item to which
proposed action of the guardian is not in the best inter
the objection is directed and the grounds on which the
est of the ward.
objection is based.
(b) Service. The petition shall be served by formal
(c) Service. The objector shall serve a copy of the notice.
objection on each guardian and on any other person as
directed by the court. (c) Hearing. The petitioner or any interested person
may set the matter for hearing.
Committee Notes
(d) Expedited Proceedings. For good cause shown,
Rule History
the court may shorten the time for response to the for
1975 Revision: Substantially the same as section 744.427(3), (5), mal notice and may set an expedited hearing.
and (6), Florida Statutes, with editorial changes.
Committee Notes
1977 Revision: No change in rule. Change in committee note to
conform to statutory renumbering. Rule History
1988 Revision: Captions added to subdivisions. Committee notes 1991 Revision: New rule.
revised. Citation form change in committee notes.
2000 Revision: Subdivision (d) added to permit expedited proceedings.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule. 2008 Revision: Committee notes revised.
1991 Revision: Revised to conform with new statutory require Statutory References
ments.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
1992 Revision: Citation form changes in committee notes. § 744.3715, Fla. Stat. Petition for interim judicial review.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate. The public guardian, as the guardian of a ward, shall
§ 744.362, Fla. Stat. Initial guardianship report. file:
§ 744.363, Fla. Stat. Initial guardianship plan.
§ 744.365, Fla. Stat. Verified inventory. (a) an initial report as required by law;
§ 744.367, Fla. Stat. Duty to file annual guardianship report.
§ 744.3675, Fla. Stat. Annual guardianship plan.
§ 744.3678, Fla. Stat. Annual accounting. (b) annual guardianship reports, which shall include
the dates of quarterly visits to the ward, as required by
Rule References law;
Fla. Prob. R. 5.020 Pleadings; verification; motions. (c) a report within 6 months of his or her appoint
Fla. Prob. R. 5.041 Service of pleadings and papers.
Fla. Prob. R. 5.060 Request for notices and copies of pleadings.
ment as guardian of a ward, which shall also be filed
Fla. Prob. R. 5.180 Waiver and consent. with the executive director of the Statewide Public
Fla. Prob. R. 5.610 Execution by guardian. Guardianship Office, stating:
RULE 5.710 FLORIDA PROBATE RULES RULE 5.725
(1) the public guardian’s efforts to locate a family interview the ward. The order of appointment shall be
member or friend, other person, bank, or corporation to served upon the guardian, the ward, and such other
act as guardian of the ward; and persons as the court may determine.
(2) the ward’s potential to be restored to capacity; (c) Report. The monitor shall file a verified writ
ten report with the court setting forth the monitor’s
(d) an annual report, filed with the Statewide Public findings. The report shall be served on the guardian,
Guardianship Office, by September 1 for the preced
the ward, and such other persons as the court may
ing fiscal year, on the operations of the office of public
determine.
guardian; and
(e) a report of an independent audit by a qualified (d) Protection of Ward. If it appears from the mon
certified public accountant, file with the Statewide itor’s report that further action by the court to protect
Public Guardianship Office every 2 years. the interests of the ward is necessary, the court shall,
after a hearing with notice, enter any order necessary
Committee Notes to protect the ward or the ward’s property, including
amending the plan, requiring an accounting, ordering
Rule History
production of assets, or initiating proceedings to re
1987 Revision: This is a new rule and was promulgated to es move a guardian. Notice of the hearing shall be served
tablish procedures to accommodate the Public Guardian Act. See § on the guardian, the ward, and such other persons as
744.701, et seq., Fla. Stat. See also Fla. Prob. R. 5.560. the court may determine.
1989 Revision: Prior rule adopted as temporary emergency rule. Committee Notes
1991 Revision: Editorial changes. This rule applies to the non-emergency appointment of court
monitors.
1992 Revision: Citation form changes in committee notes.
Rule History
2007 Revision: Rule extensively amended to specify reports a
public guardian is required to file. 2006 Revision: New rule.
Statutory Reference 2008 Revision: Editorial change in (d). Committee notes revised.
(a) Appointment. Upon motion or inquiry by any (a) Appointment. Upon motion or inquiry by any
interested person or upon its own motion, the court interested person or upon its own motion, the court
may appoint a court monitor in any proceeding over may appoint a court monitor on an emergency basis
which it has jurisdiction. without notice in any proceeding over which it has
jurisdiction.
(b) Order of Appointment. The order of appoint
ment shall state the name, address, and phone number (b) Order of Appointment. The order of appoint
of the monitor and shall set forth the matters to be ment shall specifically find that there appears to be
investigated. The order may authorize the monitor to imminent danger that the physical or mental health or
investigate, seek information, examine documents, or safety of the ward will be seriously impaired or that
RULE 5.725 FLORIDA PROBATE RULES RULE 5.800
the ward’s property is in danger of being wasted, mis protect the physical or mental health, safety, or prop
appropriated, or lost unless immediate action is taken. erty of the ward, the order or injunction shall be served
The scope of the matters to be investigated and the on the guardian, the ward, the ward’s attorney, if any,
powers and duties of the monitor must be specifically and such other persons as the court may determine.
enumerated in the order.
Committee Notes
(c) Duration of Authority. The authority of a mon
Rule History
itor appointed under this section expires 60 days after
the date of appointment or upon a finding of no prob 2006 Revision: New rule.
able cause, whichever occurs first. The court may enter
an order extending the authority of the monitor for an 2008 Revision: Committee notes revised.
additional 30 days upon a showing that an emergency
Statutory references
condition still exists.
§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.
(d) Report. Within 15 days after the entry of an § 744.1075, Fla. Stat. Emergency court monitor.
order of appointment, the monitor shall file a verified
written report setting forth the monitor’s findings and RULE 5.800. APPLICATION OF REVISED
recommendations. The report may be supported by CHAPTER 744 TO EXISTING
documents or other evidence. The time for filing the GUARDIANSHIPS
report may be extended by the court for good cause.
(a) Prior Adjudication of Incompetency. When
(e) Review. Upon review of the report, the court an adjudication of incompetency has taken place under
shall enter an order determining whether there is prob chapter 744, Florida Statutes, before October 1, 1989,
able cause to take further action to protect the person or no readjudication of incapacity shall be required.
property of the ward.
(b) Annual Guardianship Reports. Guardians
appointed before October 1, 1989, shall file annual
(1) If the court finds no probable cause, the court
guardianship reports as required by law.
shall enter an order finding no probable cause and dis
charging the monitor. Committee Notes
Rule History
(2) If the court finds probable cause, the court
shall enter an order directed to the respondent stating 1989 Revision by Ad Hoc Committee: The committee adopted
the essential facts constituting the conduct charged and a position that guardians appointed before the effective date of the
requiring the respondent to appear before the court to 1989 revisions to chapter 744, Florida Statutes, should comply with
all sections of the law that apply to future acts of the guardian. For
show cause why the court should not take further ac example, all guardians will in the future file annual reports and will
tion. The order shall specify the time and place of the be responsible for the continuing well-being of their wards. The
hearing with a reasonable time to allow for the prepa committee recognized a distinction between those actions that will
necessarily occur on a continuing basis throughout the guardianship
ration of a defense after service of the order. A copy and those actions that happen at a particular moment in time but
of the order to show cause together with the order of are not necessarily ongoing duties. There are two and only two spe
appointment and report of the monitor shall be served cific examples to which the statutory reforms would not apply retro
spectively if the above distinction is adopted. First, the initial adjudi
upon the guardian, the ward, the ward’s attorney, if cation of incapacity occurs only once in any guardianship. Although
any, and the respondent. guardianships are reevaluated annually, the statute does not contem
plate a complete readjudication procedure every year. Therefore, the
committee concluded that the initial adjudicatory hearing need not
(f) Protecting Ward. If at any time prior to the be repeated for wards adjudicated incompetent before October 1,
hearing on the order to show cause the court enters 1989. Second, as concerns nonresident guardians appointed before
a temporary injunction, a restraining order, an order October 1, 1989, normally, a guardian is appointed only once at the
beginning of the guardianship. While these nonresident guardians
freezing assets, an order suspending the guardian or would be expected to obey all provisions of the law prospectively,
appointing a guardian ad litem, or any other order to they would not be required to initiate their own removal.
RULE 5.800 FLORIDA PROBATE RULES RULE 5.900
1991 Revision: Editorial changes in first sentence of (a), and rest (E) any person designated by the patient in a
of subdivision deleted as unnecessary. Subdivision (b) has been living will or other document to exercise the patient’s
transferred to rule 5.650. Date reference no longer required in (c),
and modified to make filing requirement of preexisting guardian health care decision in the event of the patient’s
ships consistent with the current statutory provisions. incapacity;
1992 Revision: Citation form changes in committee notes. (F) the administrator of the hospital, nursing
Statutory References
home, or other facility where the patient is located;
§ 744.367, Fla. Stat. Duty to file annual guardianship report. (G) the patient’s principal treating physician and
§ 744.3675, Fla. Stat. Annual guardianship plan. other physicians known to have provided any medical
§ 744.3678, Fla. Stat. Annual accounting.
opinion or advice about any condition of the patient
Rule References relevant to this petition; and
Fla. Prob. R. 5.695 Annual guardianship report. (H) all other persons the petitioner believes may
Fla. Prob. R. 5.696 Annual accounting.
have information concerning the expressed wishes of
the patient; and
PART IV — EXPEDITED JUDICIAL
INTERVENTION CONCERNING MEDICAL
(5) facts sufficient to establish the need for the
TREATMENT PROCEDURES
relief requested, including, but not limited to, facts to
support the allegation that the patient lacks the capacity
RULE 5.900. EXPEDITED JUDICIAL
to make the requisite medical treatment decision.
INTERVENTION CONCERNING
MEDICAL TREATMENT
PROCEDURES (b) Supporting Documentation. Any affidavits
and supporting documentation, including any living
will or designation of health care decision-maker, shall
(a) Petition. Any proceeding for expedited judicial
be attached to the petition.
intervention concerning medical treatment procedures
may be brought by any interested adult person and
shall be commenced by the filing of a verified petition (c) Notice. Unless waived by the court, notice of
which states: the petition and the preliminary hearing shall be served
on the following persons who have not joined in the
(1) the name and address of the petitioner; petition or otherwise consented to the proceedings:
(2) the name and location of the person who is the sub (1) the patient;
ject of the petition (hereinafter referred to as the “patient”);
(2) the patient’s spouse and the patient’s parents,
(3) the relationship of the petitioner to the patient; if the patient is a minor;
(4) the names, relationship to the patient, and ad (3) the patient’s adult children;
dresses if known to the petitioner, of:
(4) any guardian and any court-appointed health
(A) the patient’s spouse and adult children; care decision-maker;
(B) the patient’s parents (if the patient is a minor); (5) any person designated by the patient in a living
will or other document to exercise the patient’s health
(C) if none of the above, the patient’s next of kin; care decision in the event of the patient’s incapacity;
(D) any guardian and any court-appointed health (6) the administrator of the hospital, nursing home,
care decision-maker; or other facility where the patient is located;
RULE 5.900 FLORIDA PROBATE RULES RULE 5.900
(7) the patient’s principal treating physician and The promulgation of this rule is not intended to imply that judicial
other physicians believed to have provided any medi intervention is required to terminate life-prolonging procedures.
cal opinion or advice about any condition of the patient Practitioners should note that the criteria and standards of proof
relevant to this petition; contained in Browning differ from the criteria and standards of proof
presently existing in chapter 765, Florida Statutes.
(8) all other persons the petitioner believes may
Rule History
have information concerning the expressed wishes of
the patient; and 1991 Revision: New rule.