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

• Court: Supreme Court of Florida
• Decided: November 4, 2021
• Docket: SC21-1411
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC21-1411 ____________

IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES— 2021 FAST-TRACK REPORT.

November 4, 2021

PER CURIAM.

The Florida Bar’s Probate Rules Committee (Committee) has

filed a “fast-track” report proposing amendments to the Florida

Probate Rules in response to recent legislation. See Fla. R. Gen.

Prac. & Jud. Admin. 2.140(e). We have jurisdiction 1 and adopt the

amendments as proposed.

The Committee proposes amendments to the following rules:

5.020 (Pleadings; Verification; Motions); 5.200 (Petition for

Administration); 5.320 (Oath of Personal Representative); 5.340

(Inventory); 5.402 (Notice of Lien on Protected Homestead); 5.403

(Proceedings to Determine Amount of Lien on Protected Homestead);

1. See art. V, § 2(a), Fla. Const. 5.404 (Notice of Taking Possession of Protected Homestead); 5.405

(Proceedings to Determine Protected Homestead Real Property); and

5.555 (Guardianships of Minors). The amendments implement

changes to chapters 69 and 736, Florida Statutes, made by chapter

2021-183, Laws of Florida, and to chapter 733, Florida Statutes,

made by chapter 2021-221, Laws of Florida, which took effect on

July 1, 2021. See ch. 2021-183, §§ 1, 5, 12, Laws of Fla.; ch. 2021-

221, § 2, Laws of Fla.

The Executive Committee of the Board of Governors of The

Florida Bar unanimously approved the Committee’s proposals. The

Committee did not publish the proposals before filing them with the

Court. After considering the Committee’s proposals and the

relevant legislation, we amend the Florida Probate Rules as

proposed by the Committee. The more significant amendments are

discussed below.

First, pertaining to rule 5.200 (Petition for Administration),

new subdivision (k)(2) is added to require that petitions for

administration contain a statement whether the personal

representative seeking appointment has been convicted in any state

or foreign jurisdiction of abuse, neglect, or exploitation of an elderly -2- person or a disabled adult, as those terms are defined in section

825.101, Florida Statutes. See ch. 2021-221, § 2, Laws of Fla.

(enacting § 733.303(1)(b), Fla. Stat. (2021)). The remaining

subdivisions are renumbered accordingly.

Next, the form within rule 5.320 (Oath of Personal

Representative) is amended to include an affirmative statement that

the personal representative has not been convicted in any state or

foreign jurisdiction of abuse, neglect, or exploitation of an elderly

person or a disabled adult. See id. Additionally, the notary block in

the form is updated to reflect the option for online notarization.

Last, rule 5.405 (Proceedings to Determine Protected

Homestead Real Property) is renamed “Proceedings to Determine

Protected Homestead Status of Real Property.” Subdivision (a)

(Petition) is amended to provide that a petition may be filed

pursuant to rule 5.405 to determine the protected homestead

status of real property owned by a trust as described in section

733.707(3), Florida Statutes (2021), and new subdivision (b)(5) is

added to require that a petition filed pursuant to rule 5.405 state

“how the real property was owned at the time of the decedent’s

-3- death.” See ch. 2021-183, §§ 5, 12, Laws of Fla. (enacting §§

736.0201(7) and 736.1109, Fla. Stat. (2021)).

Accordingly, the Florida Probate Rules are amended as

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

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

The amendments shall take effect immediately upon the release of

this opinion. Because the amendments were not published for

comment prior to their adoption, interested persons shall have

seventy-five days from the date of this opinion in which to file

comments with the Court. 2

2. All comments must be filed with the Court on or before January 18, 2022, with a certificate of service verifying that a copy has been served on the Committee Chair, Cady Lynne Huss, Spivey & Huss, P.A., 645 South Orange Avenue, Sarasota, Florida 34236, cady@spiveyhuss.com, and on the Bar Staff Liaison to the Committee, Krys Godwin, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, kgodwin@floridabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until February 8, 2022, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a -4- It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.

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

Original Proceeding – Florida Probate Rules

Cady L. Huss, Chair, Florida Probate Rules Committee, Sarasota, Florida, Joshua E. Doyle, Executive Director, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner

comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

-5- APPENDIX

RULE 5.020. PLEADINGS; VERIFICATION; MOTIONS

(a) – (e) [No Change]

Committee Notes

The time for determining when a motion for rehearing must be served has been clarified in view of Casto v. Casto, 404 So. 2d 1046 (Fla. 1981).

Rule History

[No Change]

Statutory References

Rule References

Fla. Prob. R. 5.025 Adversary proceedings.

Fla. Prob. R. 5.200 Petition for administration.

Fla. Prob. R. 5.205(b) Filing evidence of death.

Fla. Prob. R. 5.320 Oath of personal representative.

Fla. Prob. R. 5.330 Execution by personal representative.

Fla. Prob. R. 5.350 Continuance of unincorporated business or venture.

Fla. Prob. R. 5.370(a) Sales of real property where no power conferred.

Fla. Prob. R. 5.405(b) Proceedings to determine homestead status of real property.

-6- Fla. Prob. R. 5.530 Summary administration.

Fla. Prob. R. 5.550 Petition to determine incapacity.

Fla. Prob. R. 5.560 Petition for appointment of guardian of an incapacitated person.

Fla. Prob. R. 5.600 Oath.

Fla. Prob. R. 5.649 Guardian advocate.

Fla. R. Civ. P. 1.530 Motions for new trial and rehearing; amendments of judgment.

RULE 5.200. PETITION FOR ADMINISTRATION

The petition for administration shall be verified by the petitioner and shall contain:

(a) - (j) [No Change]

(k) a statement that the personal representative seeking appointment is qualified to serve under the laws of Florida as a business entity under section 733.305, Florida Statutes, or, if an individual, that the person is qualified to serve under the laws of Florida, including:

(1) [No Change]

(2) whether the person has been convicted in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult, as those terms are defined in section 825.101, Florida Statutes;

(3) that the person is mentally and physically able to perform the duties of a personal representative;

(34) that the person is 18 years of age or older; and

-7- (45) whether the person is a resident of Florida and, if not a resident, a statement of the person’s relationship to the decedent in accordance with section 733.304, Florida Statutes.

1977 Revision - 2020 Revision [No Change]

2021 Revision: Subdivision (k) amended to require a statement as to whether the personal representative seeking appointment has been convicted of abuse, neglect, or exploitation of an elderly or disabled adult.

§ 731.201(23), Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

§ 732.522, Fla. Stat. Method and place of execution.

§ 732.526, Fla. Stat. Probate.

§ 733.202, Fla. Stat. Petition.

§ 733.301, Fla. Stat. Preference in appointment of personal representative.

§ 733.302, Fla. Stat. Who may be appointed personal representative.

§ 733.303, Fla. Stat. Persons not qualified.

§ 733.304, Fla. Stat. Nonresidents.

§ 733.305, Fla. Stat. Trust companies and other corporations and associations.

-8- § 825.101, Fla. Stat. Definitions.

RULE 5.320. OATH OF PERSONAL REPRESENTATIVE

Before the granting of letters of administration, the personal representative shall file an oath to faithfully administer the estate of the decedent. The oath shall also contain a statement that the personal representative has reviewed the statutes relating to the requirements for appointment as personal representative, that the personal representative is qualified to serve, and that the personal representative has a continuing duty to file and serve a notice upon the occurrence of an event that would disqualify the personal representative. If the petition is verified by the prospective personal representative individually, the oath may be incorporated in the petition or in the designation of resident agent. The oath shall substantially comply with the following form:

[CAPTION]

OATH OF PERSONAL REPRESENTATIVE

STATE OF COUNTY OF

I, , (Affiant), state under oath that:

1. I am qualified within the provisions of sections 733.302, 733.303, and 733.304, Florida Statutes, to serve as personal representative of the estate of , deceased. I have reviewed the statutes and understand the qualifications. Under penalties of perjury, I certify that the following statements are true:

a. I am 18 years of age or older.

-9- b. I have never been convicted of a felony.

c. I have never been convicted in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult, as those terms are defined in section 825.101, Florida Statutes.

d. I am mentally and physically able to perform the duties of personal representative.

d.e. I am a resident of the State of Florida, or, if I am not a resident of the State of Florida, I am:

a legally adopted child or adoptive parent of the decedent;

related by lineal consanguinity to the decedent; a spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or

the spouse of a person otherwise qualified under one of the provisions above.

2. I will faithfully administer the estate of the decedent according to law.

3. My place of residence is , and my post office address is .

4. I will promptly file and serve a notice on all interested persons at any time I know that I would not be qualified for appointment and will include the reason I would not then be qualified and the date on which the disqualifying event occurred.

5. I will file and serve a notice within 20 days on all interested persons, in the event there is a change in my residence address, street address, or mailing address. - 10 - Affiant

Sworn to and subscribed to before me on , ______, by Affiant, who is personally known to me or who has produced as identification.

Notary Public State of My Commission Expires: My Commission Number is:

(Affix Notarial Seal)

Sworn to (or affirmed) and subscribed before me by means of ______ physical presence or ______ online notarization, this ______ day of __________, 20 , by ____________________ (name of person making statement).

Signature of Notary Public—State of Florida (Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known or Produced Identification k Type of Identification Produced l

It is contemplated the oath may be signed concurrently with the petition for administration and will be valid even if it predates the order appointing the personal representative.

- 11 - Rule History

1977 Revision - 2019 Revision [No Change]

2021 Revision: Form Oath amended to require a statement that the personal representative has never been convicted of abuse, neglect, or exploitation of an elderly or disabled adult and to revise notary block for compliance with revised section 117.05, Florida Statutes.

733.302, Fla. Stat. Who may be appointed personal representative

733.303, Fla. Stat. Persons not qualified

733.304, Fla. Stat. Nonresidents

733.3101, Fla. Stat. Personal representative not qualified

825.101, Fla. Stat. Definitions

RULE 5.340. INVENTORY

(a) - (h) [No Change]

Inventories of the elective estate under subdivision (f) shall be afforded the same confidentiality as probate inventories. § 733.604(1) and (2), Fla. Stat.

- 12 - Inventories are still required to be filed. Once filed, however, they are subject to the confidentiality provisions found in sections 733.604(1) and (2), Florida Statutes.

Constitutional protected homestead real property is not necessarily a probatable asset. Disclosure on the inventory of real property appearing to be constitutional protected homestead property informs interested persons of the homestead issue.

Interested persons are entitled to reasonable information about estate proceedings on proper request, including a copy of the inventory, an opportunity to examine appraisals, and other information pertinent to their interests in the estate. The rights of beneficiaries to information contained in estate inventories is limited by section 733.604(3), Florida Statutes. Inventories of the elective estate under subdivision (f) affects a broader class of interested persons who may obtain information regarding the assets disclosed therein subject to control by the court and the confidentiality afforded such inventories under section 733.604(1) and (2).

Constitutional Reference

Fla. Prob. R. 5.041 Service of pleadings and documents.

- 13 - Fla. Prob. R. 5.060 Request for notices and copies of pleadings.

Fla. Prob. R. 5.360 Elective share.

Fla. Prob. R. 5.405 Proceedings to determine homestead status of real property.

Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings and documents.

RULE 5.402. NOTICE OF LIEN ON PROTECTED HOMESTEAD

(a) - (c) [No Change]

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.403 Proceedings to determine amount of lien on protected homestead.

Fla. Prob. R. 5.404 Notice of taking possession of protected homestead.

- 14 - Fla. Prob. R. 5.405 Proceedings to determine protected homestead status of real property.

Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings and documents.

RULE 5.403. PROCEEDINGS TO DETERMINE AMOUNT OF LIEN ON PROTECTED HOMESTEAD

Fla. Prob. R. 5.402 Notice of lien on protected homestead.

Fla. Prob. R. 5.404 Notice of taking possession of protected homestead.

Fla. Prob. R. 5.405 Proceedings to determine protected homestead status of real property.

Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings and documents.

- 15 - RULE 5.404. NOTICE OF TAKING POSSESSION OF PROTECTED HOMESTEAD

Fla. Prob. R. 5.403 Proceedings to determine amount of lien on protected homestead.

Fla. Prob. R. 5.405 Proceedings to determine protected homestead status of real property.

RULE 5.405. PROCEEDINGS TO DETERMINE PROTECTED HOMESTEAD STATUS OF REAL PROPERTY

(a) Petition. An interested person may file a petition to determine the protected homestead status of real property owned by the decedent or owned by the trustee of a trust described in section 733.707(3), Florida Statutes, of which the deceased settlor was treated as the owner of the real property pursuant to section 732.4015, Florida Statutes.

(b) Contents. The petition shall be verified by the petitioner and shall state:

(1) – (3) [No Change] - 16 - (4) a legal description of the property owned by the decedent on which the decedent resided; and

(5) how the real property was owned at the time of the decedent’s death; and

(6) any other facts in support of the petition.

(c) [No Change]

This rule establishes the procedure by which the personal representative or any interested person may petition the court for a determination that certain real property constituted the decedent’s protected homestead property, in accordance with article X, section 4 of the Florida Constitution. The jurisdiction of the court to determine constitutional protected homestead property was established by In re Noble’s Estate, 73 So. 2d 873 (Fla. 1954).

1984 Revision - 2014 Revision [No Change]

2021 Revision: Amends subdivisions (a) and (b)(5) to include real property owned by a trust. Committee notes revised.

§ 731.104, Fla. Stat. Verification of documents.

§ 731.201(33), Fla. Stat. General definitions.

§ 732.401, Fla. Stat. Descent of homestead.

- 17 - § 732.4015, Fla. Stat. Devise of homestead.

§ 733.607, Fla. Stat. Possession of estate.

§ 733.608, Fla. Stat. General power of the personal representative.

§ 733.707(3), Fla. Stat. Order of payment of expenses and obligations.

§ 736.0201(7), Fla. Stat. Role of court in trust proceedings.

§ 736.1109, Fla. Stat. Testamentary and revocable trusts; homestead protections.

§ 736.151, Fla. Stat. Homestead property.

RULE 5.555. GUARDIANSHIPS OF MINORS

(a) - (f) [No Change]

The provisions of chapter 744, Florida Statutes, and the guardianship rules enacted in 1989 leave some uncertainty with respect to the procedural requirements in guardianships for minors who are not incapacitated persons. This rule is intended to address only certain procedures with respect to the establishment and administration of guardianships over minors. The committee believes that certain provisions of the guardianship law and rules apply to both guardianships of minors as well as guardianships of incapacitated persons and no change has been suggested with respect to such rules. Because no adjudication of a minor is required by statute, it is contemplated that appointment of a

- 18 - guardian for a minor may be accomplished without a hearing. Initial and annual guardianship reports for minors have been simplified where all assets are on deposit with a designated financial institution under applicable Florida law.

1991 Revision - 2020 Revision [No Change]

2021 Revision: Committee notes revised.

§ 69.031, Fla. Stat. Designated financial institutions for assetsproperty in hands of guardians, curators, administrators, trustees, receivers, or other officers.

§ 744.3021, Fla. Stat. Guardians of minors.

§ 744.3085, Fla. Stat. Guardian advocates.

§ 744.334, Fla. Stat. Petition for appointment of guardian or professional guardian; contents.

§ 744.3371(2), Fla. Stat. Notice of petition for appointment of guardian and hearing.

§ 744.342, Fla. Stat. Minors; guardianship.

§ 744.362, Fla. Stat. Initial guardianship report.

§ 744.363, Fla. Stat. Initial guardianship plan.

§ 744.365, Fla. Stat. Verified inventory.

§ 744.367, Fla. Stat. Duty to file annual guardianship report.

§ 744.3675, Fla. Stat. Annual guardianship plan.

§ 744.3678, Fla. Stat. Annual accounting. - 19 - § 744.3679, Fla. Stat. Simplified accounting procedures in certain cases.

§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.

- 20 -