In Re: Amendments to Florida Probate Rules - 2024 Legislation

CourtSupreme Court of Florida
DecidedSeptember 5, 2024
DocketSC2024-1057
StatusPublished

This text of In Re: Amendments to Florida Probate Rules - 2024 Legislation (In Re: Amendments to Florida Probate Rules - 2024 Legislation) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re: Amendments to Florida Probate Rules - 2024 Legislation, (Fla. 2024).

Opinion

Supreme Court of Florida ____________

No. SC2024-1057 ____________

IN RE: AMENDMENTS TO FLORIDA PROBATE RULES – 2024 LEGISLATION.

September 5, 2024

PER CURIAM.

The Florida Bar’s Probate Rules Committee has filed a report

proposing amendments to Florida Probate Rules 5.240 (Notice of

Administration), 5.241 (Notice to Creditors), 5.550 (Petition to

Determine Incapacity), 5.649 (Guardian Advocate), and 5.681

(Restoration of Rights of Person with Developmental Disability) and

Form 5.905 (Form for Petition; Notice; and Order for Appointment of

Guardian Advocate of the Person) in response to recent legislation. 1

See chs. 2024-238, 2024-242, Laws of Fla.

The Florida Bar’s Board of Governors’ Executive Committee

unanimously approved the proposal.

1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see also Fla. R. Gen. Prac. & Jud. Admin. 2.140(e). Having considered the Committee’s proposal and the relevant

legislation, we amend the Florida Probate Rules as proposed by the

Committee, with minor revisions. The more significant

amendments are discussed below.

We amend rules 5.240 and 5.241 to require that notices of

administration and notices to creditors provide notice that the

personal representative or curator has no duty to discover whether

the Florida Uniform Disposition of Community Property Rights at

Death Act applies to the subject property unless a timely written

demand is made.

Next, we amend rules 5.550 and 5.649 to require that

petitions to determine incapacity or for the appointment of a

guardian advocate identify existing supported decisionmaking

agreements or other types of assistance already in place and state

why they are inappropriate or insufficient. Rule 5.649 is further

amended to require that orders appointing guardian advocates

provide whether the person can exercise rights with assistance and

the rights for which the person lacks decisionmaking ability.

Rule 5.681 is amended to require that a suggestion of

restoration of rights state, among other things, whether another

-2- form of assistance is an alternative to the continued appointment of

a guardian advocate.

Finally, form 5.905 is amended to add a requirement that the

petitioner note whether a decisionmaking agreement, advanced

directive, or power of attorney has been executed and, if so, whether

it is insufficient to meet the needs of the respondent.

Accordingly, the Florida Probate Rules are amended as

reflected in the appendix to this opinion. New language is indicated

by underscoring; deletions are indicated by struck-through type.

The amendments shall become effective immediately. Because the

amendments were not published for comment prior to their

adoption, interested persons shall have 75 days from the date of

this opinion in which to file comments with the Court. 2

2. All comments must be filed with the Court on or before November 19, 2024, with a certificate of service verifying that a copy has been served on Committee Co-Chairs, Erin Farrington Finlen, 3365 Galt Ocean Drive, Fort-Lauderdale, FL 33308, erin@estatelaw.com, and Zackary T. Zuroweste, 2555 Enterprise Road, Suite 15, Clearwater, FL 33763, zz@persantelaw.com, and on the Bar Staff Liaison to the Committee, Heather Telfer, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, rules@floridabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Co-Chairs have until December 10, 2024, to file a

-3- It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Probate Rules

Zackary T. Zuroweste, Co-Chair, Probate Rules Committee, Clearwater, Florida, Erin Farrington Finlen, Co-Chair, Probate Rules Committee, Fort Lauderdale, Florida, Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee, Florida, and Heather Savage Telfer, Bar Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner

response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927.

-4- APPENDIX

RULE 5.240. NOTICE OF ADMINISTRATION

(a) Service. The personal representative shallmust promptly serve a copy of the notice of administration on the following persons who are known to the personal representative and who were not previously served under section 733.2123, Florida Statutes:

(1)-(4) [No Change]

in the manner provided for service of formal notice. The personal representative may similarly serve a copy of the notice on any devisee under another will or heirs or others who claim or may claim an interest in the estate.

(b) Contents. The notice shallmust state:

(1)-(2) [No Change]

(3) that any interested person on whom a copy of the notice of administration is served must file, on or before the date that is 3 months after the date of service of a copy of the notice of administration on that person any objection that challenges the validity of the will, the venue, or the jurisdiction of the court. The 3- month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by section 733.212(3), Florida Statutes, all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative, or 1 year after service of the notice of administration;

(4) the persons who may be entitled to exempt property under section 732.402, Florida Statutes, will be deemed to have waived their rights to claim that property as exempt property unless

-5- a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceedings involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property;

(5) that an election to take an elective share must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, an agent under chapter 709, Florida Statutes, or a guardian of the property of the surviving spouse; or the date that is 2 years after the date of the decedent’s death; and

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