Version: Florida Probate Rules
Florida Probate Rules
FLORIDA PROBATE RULES
TABLE OF CONTENTS
FLORIDA PROBATE RULES
TABLE OF CONTENTS
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES
PART I — GENERAL
RULE 5.010.SCOPE
RULE 5.015.GENERAL DEFINITIONS
RULE 5.020.PLEADINGS; VERIFICATION; MOTIONS
RULE 5.025.ADVERSARY PROCEEDINGS
RULE 5.030.ATTORNEYS
RULE 5.040.NOTICE
RULE 5.041.SERVICE OF PLEADINGS AND DOCUMENTS
RULE 5.042.TIME
RULE 5.043.DEPOSIT OF WILLS AND CODICILS
RULE 5.050.TRANSFER OF PROCEEDINGS
RULE 5.060.REQUEST FOR NOTICES AND COPIES OF
PLEADINGS
RULE 5.065.NOTICE OF CIVIL ACTION OR ANCILLARY
ADMINISTRATION
RULE 5.080.DISCOVERY AND SUBPOENA
RULE 5.095.GENERAL AND SPECIAL MAGISTRATES
RULE 5.100.RIGHT OF APPEAL
RULE 5.110.ADDRESS DESIGNATION FOR PERSONAL
REPRESENTATIVE OR GUARDIAN; DESIGNATION OF
RESIDENT AGENT AND ACCEPTANCE
RULE 5.120.ADMINISTRATOR AD LITEM AND GUARDIAN AD
LITEM
RULE 5.122.CURATORS
RULE 5.150.ORDER REQUIRING ACCOUNTING
RULE 5.160.PRODUCTION OF ASSETS
RULE 5.170.EVIDENCE
RULE 5.171.EVIDENCE OF DEATH
RULE 5.180.WAIVER AND CONSENT
PART II — PROBATE
RULE 5.200.PETITION FOR ADMINISTRATION
RULE 5.201.NOTICE OF PETITION FOR ADMINISTRATION
RULE 5.205.FILING EVIDENCE OF DEATH
RULE 5.210.PROBATE OF WILLS WITHOUT ADMINISTRATION... 86
RULE 5.215.AUTHENTICATED COPY OF WILL
RULE 5.216.WILL WRITTEN IN FOREIGN LANGUAGE
RULE 5.230.COMMISSION TO PROVE WILL
RULE 5.235.ISSUANCE OF LETTERS, BOND
RULE 5.240.NOTICE OF ADMINISTRATION
RULE 5.2405. SERVICE OF NOTICE OF ADMINISTRATION ON
PERSONAL REPRESENTATIVE
RULE 5.241.NOTICE TO CREDITORS
RULE 5.260.CAVEAT; PROCEEDINGS
RULE 5.270.REVOCATION OF PROBATE
RULE 5.275.BURDEN OF PROOF IN WILL CONTESTS
RULE 5.310.DISQUALIFICATION OF PERSONAL
REPRESENTATIVE; NOTIFICATION
RULE 5.320.OATH OF PERSONAL REPRESENTATIVE
RULE 5.330.EXECUTION BY PERSONAL REPRESENTATIVE
RULE 5.340.INVENTORY
RULE 5.341.ESTATE INFORMATION
RULE 5.342.INVENTORY OF SAFE-DEPOSIT BOX
RULE 5.3425.SEARCH OF SAFE DEPOSIT BOX
RULE 5.345.ACCOUNTINGS OTHER THAN PERSONAL
REPRESENTATIVES’ FINAL ACCOUNTINGS
RULE 5.346.FIDUCIARY ACCOUNTING
RULE 5.350.CONTINUANCE OF UNINCORPORATED BUSINESS OR
VENTURE
RULE 5.355.PROCEEDINGS FOR REVIEW OF EMPLOYMENT OF
AGENTS AND COMPENSATION OF PERSONAL
REPRESENTATIVES AND ESTATE EMPLOYEES
RULE 5.360.ELECTIVE SHARE
RULE 5.365.PETITION FOR DOWER
RULE 5.370.SALES OF REAL PROPERTY WHERE NO POWER
CONFERRED
RULE 5.380.COMPULSORY PAYMENT OF DEVISES OR
DISTRIBUTIVE INTERESTS
RULE 5.385.DETERMINATION OF BENEFICIARIES AND
SHARES
RULE 5.386.ESCHEAT
RULE 5.395.NOTICE OF FEDERAL ESTATE TAX RETURN
RULE 5.400.DISTRIBUTION AND DISCHARGE
RULE 5.401.OBJECTIONS TO PETITION FOR DISCHARGE OR
FINAL ACCOUNTING
RULE 5.402.NOTICE OF LIEN ON PROTECTED HOMESTEAD
RULE 5.403.PROCEEDINGS TO DETERMINE AMOUNT OF LIEN
ON PROTECTED HOMESTEAD
RULE 5.404.NOTICE OF TAKING POSSESSION OF PROTECTED
HOMESTEAD
RULE 5.405.PROCEEDINGS TO DETERMINE PROTECTED
HOMESTEAD STATUS OF REAL PROPERTY
RULE 5.406.PROCEEDINGS TO DETERMINE EXEMPT
PROPERTY
RULE 5.407.PROCEEDINGS TO DETERMINE FAMILY
ALLOWANCE
RULE 5.420.DISPOSITION OF PERSONAL PROPERTY WITHOUT
ADMINISTRATION
RULE 5.425.DISPOSITION WITHOUT ADMINISTRATION OF
INTESTATE PERSONAL PROPERTY IN SMALL
ESTATES
RULE 5.430.RESIGNATION OF PERSONAL REPRESENTATIVE.. 206
RULE 5.440.PROCEEDINGS FOR REMOVAL OF PERSONAL
REPRESENTATIVE
RULE 5.460.SUBSEQUENT ADMINISTRATION
RULE 5.470.ANCILLARY ADMINISTRATION
RULE 5.475.ANCILLARY ADMINISTRATION, SHORT FORM
RULE 5.490.FORM AND MANNER OF PRESENTING CLAIM
RULE 5.496.FORM AND MANNER OF OBJECTING TO CLAIM
RULE 5.498.PERSONAL REPRESENTATIVE’S PROOF OF
CLAIM
RULE 5.499.FORM AND MANNER OF OBJECTING TO PERSONAL
REPRESENTATIVE’S PROOF OF CLAIM
RULE 5.510.ESTABLISHMENT AND PROBATE OF LOST OR
DESTROYED WILL
RULE 5.530.SUMMARY ADMINISTRATION
PART III — GUARDIANSHIP
RULE 5.540.HEARINGS
RULE 5.541.RECORDING OF HEARINGS
RULE 5.550.PETITION TO DETERMINE INCAPACITY
RULE 5.555.GUARDIANSHIPS OF MINORS
RULE 5.552.VOLUNTARY GUARDIANSHIP OF PROPERTY
RULE 5.560.PETITION FOR APPOINTMENT OF GUARDIAN OF
AN INCAPACITATED PERSON
RULE 5.590.APPLICATION FOR APPOINTMENT AS GUARDIAN;
DISCLOSURE STATEMENT; FILING
RULE 5.600.OATH
RULE 5.610.EXECUTION BY GUARDIAN
RULE 5.620.INVENTORY
RULE 5.625.NOTICE OF COMPLETION OF GUARDIAN EDUCATION
REQUIREMENTS
RULE 5.630.PETITION FOR APPROVAL OF ACTS
RULE 5.631.PETITION FOR APPROVAL BY PROFESSIONAL
GUARDIAN FOR ORDER NOT TO RESUSCITATE OR TO
WITHHOLD LIFE-PROLONGING PROCEDURES
RULE 5.635.PETITION FOR EXTRAORDINARY AUTHORITY
RULE 5.636.SETTLEMENT OF MINORS’ CLAIMS
RULE 5.640.CONTINUANCE OF UNINCORPORATED BUSINESS OR
VENTURE OF WARD
RULE 5.645.MANAGEMENT OF PROPERTY OF NONRESIDENT
WARD BY FOREIGN GUARDIAN
RULE 5.646.STANDBY GUARDIANS
RULE 5.647.SURROGATE GUARDIAN
RULE 5.648.EMERGENCY TEMPORARY GUARDIAN
RULE 5.649.GUARDIAN ADVOCATE
RULE 5.650.RESIGNATION OR DISQUALIFICATION OF
GUARDIAN; APPOINTMENT OF SUCCESSOR
RULE 5.660.PROCEEDINGS FOR REMOVAL OF GUARDIAN
RULE 5.670.TERMINATION OF GUARDIANSHIP ON CHANGE OF
DOMICILE OF RESIDENT WARD
RULE 5.680.TERMINATION OF GUARDIANSHIP
RULE 5.681.RESTORATION OF RIGHTS OF PERSON WITH
DEVELOPMENTAL DISABILITY
RULE 5.685.DETERMINATION REGARDING ALTERNATIVES TO
GUARDIANSHIP
RULE 5.690.INITIAL GUARDIANSHIP REPORT
RULE 5.695.ANNUAL GUARDIANSHIP REPORT
RULE 5.696.GUARDIAN ACCOUNTING
RULE 5.697.MAGISTRATES’ REVIEW OF GUARDIANSHIP
INVENTORIES, ACCOUNTINGS, AND PLANS
RULE 5.700.OBJECTION TO GUARDIANSHIP REPORTS
RULE 5.705.PETITION FOR INTERIM JUDICIAL REVIEW
RULE 5.710.REPORTS OF PUBLIC GUARDIAN
RULE 5.720.COURT MONITOR
RULE 5.725.EMERGENCY COURT MONITOR
RULE 5.800.APPLICATION OF REVISED CHAPTER 744 TO
EXISTING GUARDIANSHIPS
PART IV — EXPEDITED JUDICIAL INTERVENTION CONCERNING
MEDICAL TREATMENT PROCEDURES
RULE 5.900.EXPEDITED JUDICIAL INTERVENTION CONCERNING
MEDICAL TREATMENT PROCEDURES
PART V — FORMS
RULE 5.901.FORM FOR PETITION TO DETERMINE
INCAPACITY
RULE 5.902.FORM FOR PETITION AND ORDER OF GUARDIAN 365
RULE 5.903.LETTERS OF GUARDIANSHIP
RULE 5.904.FORMS FOR INITIAL AND ANNUAL GUARDIANSHIP
PLANS
APPENDIX A
APPENDIX B
RULE 5.905.FORM FOR PETITION; NOTICE; AND ORDER FOR
APPOINTMENT OF GUARDIAN ADVOCATE OF THE
PERSON
RULE 5.906.LETTERS OF GUARDIAN ADVOCACY
RULE 5.910.INVENTORY
RULE 5.920.FORMS RELATED TO INJUNCTION FOR
PROTECTION AGAINST EXPLOITATION OF A
VULNERABLE ADULT
RULE 5.930.AFFIDAVIT OF QUALIFIED CUSTODIAN OF
ELECTRONIC WILL
CITATIONS TO OPINIONS ADOPTING OR AMENDING RULES
ORIGINAL ADOPTION, effective 1-1-68: 201 So. 2d 409.
OTHER OPINIONS:
Effective Date: Citation Description
1-1-76: 324 So.2d 38. Complete revision (temporary rules).
7-1-77: 344 So.2d 828. Complete revision.
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.
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.
1-1-85: 460 So.2d 906. Amended 5.340.
12-23-87: 517 So.2d 675. Amended 5.540, 5.560; added 5.710.
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.
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.
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.
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.
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.
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.
10-11-01: 807 So.2d 622, Amended 5.025, 5.340, 5.360; added 5.365.
816 So.2d 1095.
5-2-02, 824 So.2d 849. Amended 5.080, 5.200, 5.205, 5.210, 5.240,
applicable to 5.310, 5.340, 5.345, 5.346, 5.385, 5.405, 5.440,
decedents dying
Effective Date: Citation Description
after 5.510, 5.530; deleted 5.070, 5.520; added 5.215,
December 31, 5.216, 5.241, 5.341, 5.404.
2001:
6-19-03, 848 So.2d 1069. Two-year-cycle revision. Amended 5.122, 5.205,
applicable to 5.240, 5.385, 5.430, 5.496; added 5.342.
decedents
dying after
December 31,
2001:
1-1-04: 848 So.2d 1069. Two-year-cycle revision. Amended 5.555, 5.680;
added 5.407, 5.552.
10-1-04: 887 So.2d 1090. Amended 5.697.
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.
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.
7-12-07: 964 So.2d 140. Amended 5.015, 5.240, 5.241; added 5.648.
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.
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.
1-1-11: 50 So.3d 578. Three-year cycle review. Amended 5.020, 5.030,
5.040, 5.041, 5.060, 5.110, 5.200, 5.205, 5.210,
5.235, 5.260, 5.330, 5.340, 5.346, 5.360, 5.405,
5.406, 5.440, 5.470, 5.496, 5.696, 5.710, 5.725.
1-1-11: 51 So.3d 1146. Amended 5.201, 5.260, 5.360 and created
5.3425.
7-7-11: 67 So.3d 1035. Amended 5.260.
9-28-11: 73 So.3d 205. Amended 5.025, 5.240.
10-1-11: 78 So.3d 1045. Amended 5.200, 5.210, 5.530.
9-1-12: 102 So.3d 505. Amended 5.030, 5.040, 5.041, 5.060, 5.120.
5.200, 5.340, 5.342, 5.350, 5.355, 5.360, 5.370,
5.380, 5.385, 5.386, 5.400, 5.401, 5.402, 5.403,
5.405, 5.406, 5.407, 5.430, 5.440, 5.460, 5.470,
5.475. 5.496, 5.498, 5.499, 5.510, 5.530, 5.620,
5.630, 5.650, 5.660, 5.670, 5.680, 5.690. 5.695,
5.696, 5.700.
10-1-12: 95 So.3d 96. Amended 5.042.
4-1-13: 102 So.3d 451. Adopted 5.043.
11-27-13: 131 So.3d 717. Amended 5.240 and 5.260.
1-1-14: 123 So.3d 31. Amended: 5.060, 5.110, 5.230, 5.395, 5.400,
5.404, 5.530, 5.649, 5.660, 5.681, 5.696.
Adopted 5.2405.
Effective Date: Citation Description
4-22-14: 139 So.3d 875. Amended: 5.120, 5.200, 5.210, 5.385, 5.405,
5.406, 5.407, 5.530, 5.550, 5.555, 5.560, 5.590,
5.636, 5.646.
11-6-14: 150 So.3d 1100. Amended 5.590.
12-17-15: 181 So.3d 480. Amended 5.240, 5.310, 5.648, 5.695, 5.705.
9-15-16: 200 So.3d 761. Amended 5.050; 5.560; 5.646; 5.648; 5.670,
5.710.
1-1-17: 199 So.3d 835. Amended 5.040, 5.041, 5.042, 5.080, 5.345,
5.346, 5.550, 5.560, 5.620, 5.690, 5.696.
9-7-17: 226 So.3d 245. Amended 5.550, 5.695.
9-27-18: 253 So.3d 983. Amended 5.025.
9-3-20: 301 So.3d 859. Amended 5.550, 5.560, 5.649, 5.900. Adopted
5.901, 5.902, 5.903, 5.904, 5.905, 5.906, 5.910.
9-24-20: 2020 WL Adopted 5.920.
5667292.
12-31-20: 309 So.3d 196. Amended 5.040, 5.065, 5.240, 5.550, 5.555,
5.560, 5.630, 5.850. Adopted 5.425.
1-1-20: 287 So.3d 492. Amended 5.020, 5.040, 5.200, 5.240, 5.241,
5.275, 5.320, 5.360, 5.407, 5.470, 5.490, 5.499,
5.636, 5.649, 5.681, 5.695, 5.900.
1-16-20: 288 So.3d 565. Amended 5.015, 5.043, 5.120, 5.200, 5.210,
5.215, 5.230.
12-31-20: 309 So.3d 196. Amended 5.040, 5.065, 5.240, 5.550, 5.555,
5.560, 5.630, 5.850. Adopted 5.425.
10-28-21: 344 So.3d 940. Amended 5.030, 5.040, 5.041, 5.042, 5.043,
5.060, 5.080, 5.120, 5.200, 5.210, 5.340, 5.342,
5.350, 5.355, 5.360, 5.370, 5.380, 5.385, 5.386,
5.400, 5.401, 5.402, 5.403, 5.405, 5.406, 5.407,
5.430, 5.440, 5.460, 5.470, 5.475, 5.490, 5.496,
5.498, 5.499, 5.510, 5.530, 5.550, 5.555, 5.560,
5.590, 5.620, 5.630, 5.636, 5.646, 5.650, 5.660,
5.670, 5.680, 5.690, 5.695, 5.696, 5.700.
11-4-21: 334 So.3d 562. Amended 5.020, 5.200, 5.320, 5.340, 5.402,
5.403, 5.404, 5.405, 5.555.
10-1-22: 346 So.3d 1105. Amended 5.080.
4-1-23: 356 So.3d 224. Amended 5.040, 5.330. Adopted 5.930.
12-14-23: 2023 WL Amended 5.630, 5.649, 5.904, 5.905, 5.906,
8636921. 5.920. Adopted 5.631.
NOTE TO USERS: Rules in this pamphlet are current through the opinion in 2023 WL
8636921. 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”).
PART I — GENERAL
RULE 5.010 cases. SCOPE
These rules govern the procedure in all probate and
guardianship proceedings and shall be known as the Florida
Probate Rules and may be cited as Fla. Prob. R. Part I applies to all
proceedings. Part II applies to probate alone, Part III applies to
guardianship alone, and Part IV applies to expedited judicial
intervention concerning medical treatment procedures. The Florida
Rules of Civil Procedure apply only as provided herein.
Committee Notes
Rule History
1975 Revision: These rules shall govern the procedures to be
followed in all matters pending on or commenced after January 1,
1976, including procedures for the enforcement of substantive
rights that have vested before that date. See section 731.011,
Florida Statutes.
1977 Revision: The changes in these rules shall take effect on
July 1, 1977.
1988 Revision: In the opinion reported at 460 So. 2d 906, the
Florida Supreme Court directed the Probate and Guardianship
Rules Committee to study the statutes and attempt to identify those
portions of the Florida Probate Code, the Florida Guardianship Law,
and other statutes that contained procedural provisions. When
those procedural provisions were identified, the committee was
charged to promulgate rules incorporating those procedures.
The committee has reviewed the statutes and has found a
substantial measure of procedure that was contained only in the
statutes for which there were no corresponding rules. The
committee also determined that much of the procedure in the
statutes already had a rule counterpart.
New rules added, or prior rules amended, in 1988 to add
procedural matters previously found only in the statutes are rules
5.050, 5.122, 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 rule 5.050), the only portion of the statutes
that has been reviewed in detail, and for which rules have been
created, is the Florida Probate Code. Other portions of the statutes
mentioned in the opinion cited above remain for the next cycle of
this committee to review.
As the committee wrote rules to transfer the statutory
procedure into these rules, an attempt was made to write the rule
without changing the meaning of the statute. It was not possible or
advisable to use the exact wording of the statute in some instances,
and in those instances the committee rewrote the statutory
language in the format used in the rules generally. Even under
those circumstances, the committee attempted to transfer the entire
procedural portion of the statute without changing its meaning.
Where it was specifically intended in a few instances to add to
existing statutory procedure, 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 procedure than was
specified in the related statute, even though the statute must,
under the Florida Constitution, yield to the rule when there is a
conflict.
The committee, through the proper channels in The Florida
Bar (initially, the Probate Law Committee of the Real Property,
Probate and Trust Law Section), intends to ask the legislature to
repeal those 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 is the opinion of the committee that
continuing to maintain procedure in the statutes when there is a
rule specifying that procedure is detrimental to the orderly process
of the court and the public that it serves, especially when, over
time, the statute and the rule may diverge.
Although the supreme court has adopted these recommended
rules, it has not specifically determined that all of the provisions of
the statutes that were procedural have now been adopted as a rule.
This is a continuing project for the committee and although these
new rules and changes represent a substantial transition of
procedure into the rules, the committee does not suggest that the
transition is complete. The court is not precluded from examining
any particular statute or rule in the context of a particular actual
dispute.
1991 Revision: Rule revised to reflect addition of new Part IV
dealing with expedited judicial intervention concerning medical
treatment procedures.
1992 Revision: In 1989, the Florida Legislature enacted a
comprehensive revision to Florida’s guardianship law. In response,
the Florida Supreme Court appointed an ad hoc committee to
recommend temporary rules of procedure for the new law. In an
opinion at 551 So. 2d 452 (Fla. 1989), the court adopted the
temporary rules recommended by the ad hoc committee, to replace
Part III of the then-existing Florida Probate Rules, effective October
1, 1989. In its opinion, the court also directed the Florida Probate
Rules Committee to review the new laws and, on a priority basis, to
recommend permanent rules of procedure.
The committee reviewed the Florida Guardianship Law enacted
in 1989, as well as revisions to the law enacted in 1990, and
presented its rule recommendations to the court in 1991. The court,
in an opinion at 584 So. 2d 964, adopted the recommendations
with minor exceptions, to be effective October 1, 1991.
In 1990, the court also rendered its opinion in In re
Guardianship of Browning, 568 So. 2d 4 (Fla. 1990), regarding a
person’s right to refuse life-prolonging medical procedures. In that
decision, the court directed the committee to recommend a rule to
provide for expedited judicial intervention. In response, the
committee created a new Part IV of these rules and recommended
rule 5.900, which was adopted by the court, with minor changes, in
its opinion at 584 So. 2d 964, effective October 1, 1991.
The committee continued its efforts to review the Florida
Probate Code and to promulgate or amend rules regarding any
procedural portions of those statutes. As a result of those efforts, as
well as the efforts described above, the committee recommended
amendments to rules 5.010, 5.025, 5.040, 5.050, 5.200, 5.240,
5.310, 5.346, 5.400, 5.470, 5.550, 5.560, 5.590, 5.600, 5.610,
5.620, 5.630, 5.640, 5.650, 5.660, 5.670, 5.680, 5.695, 5.700,
5.710, and 5.800; creation of new rules 5.496, 5.540, 5.541, 5.555,
5.635, 5.636, 5.690, 5.696, 5.697, 5.705, and 5.900; and deletion
of rule 5.495. In addition, the committee recommended editorial
changes in virtually all the rules so that they would conform
stylistically to one another and to all other rules promulgated by the
supreme court.
2003 Revision: The committee has promulgated numerous
changes in the rules and in the committee notes to many of the
rules, in response to legislative amendments that deleted
procedural aspects of a number of statutes in the Florida Probate
Code, including deletion and re-titling of some statutes. See Ch.
2001-226, Laws of Fla.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040(a)(3)(B) Notice.
Fla. Prob. R. 5.050 Transfer of proceedings.
Fla. Prob. R. 5.080 Discovery and subpoena.
Fla. Prob. R. 5.230(e) Commission to prove will.
Fla. R. App. P. 9.800 Uniform citation system.
RULE 5.015 cases. GENERAL DEFINITIONS
(a) General. The definitions and rules of construction stated
or referred to in sections 1.01 and 393.12, Florida Statutes, and
chapters 731, 732, 733, 734, 735, 736, 738, 739, and 744, Florida
Statutes, as amended from time to time, shall apply to these rules,
unless otherwise defined in these rules.
(b) Specific Definitions. When used in these rules
(1) “certified copy” means a copy of a document signed
and verified as a true copy by the officer to whose custody the
original, whether in paper or electronic form, is entrusted;
(2) “formal notice” means notice under rule 5.040(a);
(3) “informal notice” means notice under rule 5.040(b);
(4) “judge” means a judge of the circuit court, including
any judge elected, appointed, substituted, or assigned to serve as
judge of the court;
(5) “guardian advocate” means a person appointed for a
person with a developmental disability pursuant to section 393.12,
Florida Statutes;
(6) “guardian” means a person appointed pursuant to
chapter 744, Florida Statutes, or a guardian advocate unless a rule
indicates otherwise;
(7) “ward” means an individual for whom a guardian is
appointed.
Committee Notes
Rule History
1977 Revision: No change in rule. Correction of typographical
error in committee note.
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
§§ 731.201 and 744.102, Fla. Stat.
1988 Revision: Rule was expanded due to deletion of rule
5.190. Committee notes expanded. Citation form changes in rule
and committee notes.
1992 Revision: Citation form changes in rule and committee
notes.
2000 Revision: Subdivision (b)(2) amended to delete outdated
reference to rule 5.550(c).
2007 Revision: Subdivision (a) amended to add reference to
chapter 736, Florida Statutes, which was added to the statutes
effective July 1, 2007 and which replaces deleted chapter 737, and
to add reference to chapter 739, Florida Statutes, which was added
effective July 1, 2005. Committee notes revised.
2008 Revision: Subdivision (a) amended to add reference to
section 393.12, Florida Statutes, which governs guardian advocates
for persons with developmental disabilities. As provided by section
744.102(11), the term “guardian advocate” as used in the Florida
Guardianship Law and these rules does not include a guardian
advocate appointed for a person determined to lack capacity to
consent to treatment under section 394.4598, Florida Statutes.
Subdivisions (b)(5) through (b)(7) added to reflect 2008 amendments
to section 393.12, Florida Statutes. Committee notes revised.
2020 Revision: Subdivision (b)(1) amended to reference
electronic original documents consistent with section 732.526,
Florida Statutes. Committee notes revised.
Statutory References
§ 1.01, Fla. Stat. Definitions.
§ 393.063, Fla. Stat. Definitions.
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 731.201, Fla. Stat. General definitions.
§ 732.526, Fla. Stat. Probate.
§ 736.0103, Fla. Stat. Definitions.
§ 738.102, Fla. Stat. Definitions.
§ 739.102, Fla. Stat. Definitions.
§ 744.102, Fla. Stat. Definitions.
RULE 5.020 cases. PLEADINGS; VERIFICATION; MOTIONS
(a) Forms of Pleading. Pleadings shall be signed by the
attorney of record, and by the pleader when required by these rules.
All technical forms of pleadings are abolished. No defect of form
impairs substantial rights, and no defect in the statement of
jurisdictional facts actually existing renders any proceeding void.
(b) Petition. A petition shall contain a short and plain
statement of the relief sought, the grounds therefor, and the
jurisdiction of the court where the jurisdiction has not already been
shown.
(c) Motions. Any other application to the court for an order
shall be by written motion, unless made orally during a hearing or
trial. The motion shall state with particularity the grounds therefor
and shall set forth the relief or order sought.
(d) Rehearing. A motion for rehearing of any order or
judgment shall be served not later than 15 days after the date of
filing the order or judgment with the clerk as shown on the face of
the order or judgment.
(e) Verification. When verification of a document is
required, the document filed shall include an oath, affirmation, or
the following statement:
“Under penalties of perjury, I declare that I have read the
foregoing, and the facts alleged are true, to the best of my
knowledge and belief.”
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
1977 Revision: Editorial change (rule) and expansion of
committee note. Subdivisions (a), (b), and (d) substantially the same
as subdivisions (a), (b), and (f) of prior rule 5.030. Subdivision (c)
taken from section 731.104, Florida Statutes. For adversary
proceedings see new rule 5.025. Notice of administration is not a
pleading within the meaning of this rule.
1980 Revision: Subdivisions (c) and (d) have been redesignated
as (e) and (f). New subdivisions (c) and (d) are added to provide for
the use of motions in probate proceedings other than adversary
proceedings and to specifically authorize a procedure for rehearing.
1984 Revision: Minor editorial changes. Subdivision (f) of prior
rule has been deleted as it is now covered under the adversary
rules.
1988 Revision: Editorial change in caption of (a). Committee
notes revised. Citation form change in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in rule and committee notes.
2003 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
2010 Revision: Committee notes revised.
2019 Revision: Subdivision (d) amended to change the
deadline for service of a motion for rehearing from 10 to 15 days
after the specified event to conform to 2013 amendments to the
Florida Rule of Civil Procedure 1.530. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 731.104, Fla. Stat. Verification of documents.
§ 731.201, Fla. Stat. General definitions.
§ 733.202, Fla. Stat. Petition.
§ 733.604(1), Fla. Stat. Inventories and accountings; public
records exemptions.
§ 733.901, Fla. Stat. Final discharge.
§ 735.203, Fla. Stat. Petition for summary administration.
§ 744.104, Fla. Stat. Verification of documents.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.3201, Fla. Stat. Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.334, Fla. Stat. Petition for appointment of guardian or
professional guardian; contents.
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.
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 5.025 cases. ADVERSARY PROCEEDINGS
(a) Specific Adversary Proceedings. The following are
adversary proceedings unless otherwise ordered by the court:
proceedings to remove a personal representative, surcharge a
personal representative, remove a guardian, surcharge a guardian,
obtain an injunction or temporary injunction pursuant to section
825.1035, Florida Statutes, probate a lost or destroyed will or later-
discovered will, determine beneficiaries, construe a will, reform a
will, modify a will, cancel a devise, partition property for the
purposes of distribution, determine pretermitted status, determine
pretermitted share, determine amount of elective share and
contribution, and for revocation of probate of a will.
(b) Declared Adversary Proceedings. Other proceedings
may be declared adversary by service on interested persons of a
separate declaration that the proceeding is adversary.
(1) If served by the petitioner, the declaration must be
served with the petition to which it relates.
(2) If served by the respondent, the declaration and a
written response to the petition must be served at the earlier of:
(A) within 20 days after service of the petition, or
(B) prior to the hearing date on the petition.
(3) When the declaration is served by a respondent, the
petitioner must promptly serve formal notice on all other interested
persons.
(c) Adversary Status by Order. The court may determine
any proceeding to be an adversary proceeding at any time.
(d) Notice and Procedure in Adversary Proceedings.
(1) Petitioner must serve formal notice, except as
provided in proceedings pursuant to section 825.1035, Florida
Statutes.
(2) After service of formal notice, the proceedings, as
nearly as practicable, must be conducted similar to suits of a civil
nature, including entry of defaults. The Florida Rules of Civil
Procedure govern, except for rule 1.525.
(3) The court on its motion or on motion of any
interested person may enter orders to avoid undue delay in the
main administration.
(4) If a proceeding is already commenced when an
order is entered determining the proceeding to be adversary, it must
thereafter be conducted as an adversary proceeding. The order
must require interested persons to serve written defenses, if any,
within 20 days from the date of the order. It is not necessary to re-
serve the petition except as ordered by the court.
(5) When the proceedings are adversary, the caption of
subsequent pleadings, as an extension of the probate caption, must
include the name of the first petitioner and the name of the first
respondent.
Committee Notes
The court on its initiative or on motion of any party may order
any proceeding to be adversary or nonadversary or enter any order
that will avoid undue delay. The personal representative would be
an interested person in all adversary proceedings. A prescribed form
for 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:
Court
Case #
)
In Re Estate of John B. Jones )
)
Julia Jones, )
)
Petitioner, )
)
v. )
)
Harold Jones, as Personal )
Representative, et al., )
)
Respondents. )
Rule History
1975 Revision: New rule. 324 So. 2d 38.
1977 Revision: Editorial changes to (a)(1).
1984 Revision: Extensive changes, committee notes revised
and expanded.
1988 Revision: Changes in (a) add proceedings to remove a
guardian and to surcharge a guardian to the list of specific
adversary proceedings and delete proceedings to determine and
award the elective share from the list. Change in (b)(4) clarifies on
whom the petitioner must serve formal notice. Editorial change in
(d)(2) and (d)(5). Committee notes revised. Citation form changes in
committee notes.
1992 Revision: Deletion of (b)(3) as unnecessary. Former (b)(4)
renumbered as new (b)(3). Committee notes revised. Citation form
changes in committee notes.
2001 Revision: Change in (a) to add determination of amount
of elective share and contribution as specific adversary proceedings.
Committee notes revised.
2003 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
2011 Revision: Subdivision (a) revised to add “reform a will,
modify a will” and “determine pretermitted status.” Subdivision
(d)(2) modified to insure that an award of attorneys’ fees in a
probate or guardianship proceeding follows the law and procedures
established for such proceedings, rather than the law and
procedures for civil proceedings. See Amendments to the Florida
Family Law Rules of Procedure (Rule 12.525), 897 So. 2d 467 (Fla.
2005). Editorial changes to conform to the court’s guidelines for
rules submissions as set forth in Administrative Order AOSC06-14.
Committee notes revised.
2018 Revision: Subdivisions (a) and (d)(1) amended to
reference section 825.1035, Florida Statutes. Committee notes
revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§§ 732.201–732.2155, Fla. Stat. Elective share of surviving
spouse.
§ 732.301, Fla. Stat. Pretermitted spouse.
§ 732.302, Fla. Stat. Pretermitted children.
§ 732.507, Fla. Stat. Effect of subsequent marriage, birth,
adoption, or dissolution of marriage.
§§ 732.6005–732.611, Fla. Stat. Rules of construction.
§ 732.615, Fla. Stat. Reformation to correct mistakes.
§ 732.616, Fla. Stat. Modification to achieve testator’s tax
objectives.
§ 733.105, Fla. Stat. Determination of beneficiaries.
§ 733.107, Fla. Stat. Burden of proof in contests; presumption
of undue influence.
§ 733.109, Fla. Stat. Revocation of probate.
§ 733.207, Fla. Stat. Establishment and probate of lost or
destroyed will.
§ 733.208, Fla. Stat. Discovery of later will.
§ 733.504, Fla. Stat. Removal of personal representative;
causes for removal.
§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.
§ 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 court order.
§ 733.609, Fla. Stat. Improper exercise of power; breach of
fiduciary duty.
§ 733.619(2), (4), Fla. Stat. Individual liability of personal
representative.
§ 733.814, Fla. Stat. Partition for purpose of distribution.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.474, Fla. Stat. Reasons for removal of guardian.
§ 744.477, Fla. Stat. Proceedings for removal of a guardian.
§ 825.1035, Fla. Stat. Injunction for protection against
exploitation of a vulnerable adult.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.270 Revocation of probate.
Fla. Prob. R. 5.360 Elective share.
Fla. Prob. R. 5.365 Petition for dower.
Fla. Prob. R. 5.440 Proceedings for removal.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.660 Proceedings for removal of guardian.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. R. Civ. P. 1.140 Defenses.
Fla. R. Civ. P. 1.160 Motions.
Fla. R. Civ. P. 1.200 Pretrial procedure.
Fla. R. Civ. P. 1.280 General provisions governing discovery.
Fla. R. Civ. P. 1.290 Depositions before action or pending
appeal.
Fla. R. Civ. P. 1.310 Depositions upon oral examination.
Fla. R. Civ. P. 1.340 Interrogatories to parties.
Fla. R. Civ. P. 1.380 Failure to make discovery; sanctions.
RULE 5.030 cases. ATTORNEYS
(a) Required; Exception. Every guardian and every personal
representative, unless the personal representative remains the sole
interested person, shall be represented by an attorney admitted to
practice in Florida. A guardian or personal representative who is an
attorney admitted to practice in Florida may represent himself or
herself as guardian or personal representative. A guardian advocate
is not required to be represented by an attorney unless otherwise
required by law or the court.
(b) Limited Appearance without Court Order. An attorney
of record for an interested person in a proceeding governed by these
rules shall be the attorney of record in all other proceedings in the
administration of the same estate or guardianship, except service of
process in an independent action on a claim, unless at the time of
appearance the attorney files a notice specifically limiting the
attorney’s appearance only to the particular proceeding or matter in
which the attorney appears. At the conclusion of that proceeding or
matter, the attorneys role terminates upon the attorney filing notice
of completion of limited appearance and serving a copy on the client
and other interested persons.
(c) Withdrawal or Limited Appearance with Court Order.
An attorney of record may withdraw or limit the attorney’s
appearance with approval of the court, after filing a motion setting
forth the reasons and serving a copy on the client and other
interested persons.
Committee Notes
The appearance of an attorney in an estate is a general
appearance unless (i) specifically limited at the time of such
appearance or (ii) the court orders otherwise. This rule does not
affect the right of a party to employ additional attorneys who, if
members of The Florida Bar, may appear at any time.
Rule History
1975 Revision: Subdivision (a) is same as prior rule 5.040 with
added provision for withdrawal of attorney similar to Florida Rule of
Appellate Procedure 2.3(d)(2). Subdivision (b) reflects ruling in case
of State ex rel. Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974).
1977 Revision: Editorial change requiring filing of petition for
withdrawal and service of copy upon interested persons. Editorial
change in citation forms in rule and committee note.
1984 Revision: Minor editorial changes and addition of
subdivision (c). Committee notes expanded.
1988 Revision: Editorial changes and order of subdivisions
rearranged. Committee notes expanded. Citation form changes in
committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2005 Revision: Committee notes revised.
2006 Revision: Committee notes revised.
2008 Revision: Subdivision (a) amended to reflect that a
guardian advocate may not be required to be represented by an
attorney in some instances. Committee notes revised.
2010 Revision: Subdivision (b) and (c) amended to clarify the
procedure for termination of an attorney’s representation of an
interested person either with or without court order.
2012 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 731.301, Fla. Stat. Notice.
§ 733.106, Fla. Stat. Costs and attorney’s fees.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.6175, Fla. Stat. Proceedings for review of employment of
agents and compensation of personal representatives and
employees of estate.
§ 744.108, Fla. Stat. Guardian’s and attorney’s fees and
expenses.
§ 744.3085, Fla. Stat. Guardian advocates.
Rule References
Fla. Prob. R. 5.041(b) Service of pleadings and papers.
Fla. Prob. R. 5.110(b), (c) Resident agent.
Fla. R. Gen. Prac. & Jud. Admin. 2.505 Attorneys.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. App. P. 9.440 Attorneys.
RULE 5.040 cases. NOTICE
(a) Formal Notice.
(1) Procedure for Formal Notice. When formal notice is
given, a copy of the pleading or motion must be served on interested
persons, together with a notice requiring the person served to serve
written defenses on the person giving notice within 20 days after
service of the notice, exclusive of the day of service, and to file the
original of the written defenses with the clerk of the court either
before service or immediately thereafter, and notifying the person
served that failure to serve written defenses as required may result
in a judgment or order for the relief demanded in the pleading or
motion, without further notice.
(2) Effect of Service of Formal Notice. After service of
formal notice, informal notice of any hearing on the pleading or
motion must be served on interested persons, provided that if no
written defense is served within 20 days after service of formal
notice on an interested person, the pleading or motion may be
considered ex parte as to that person, unless the court orders
otherwise.
(3) Manner of Service of Formal Notice. Formal notice
must be served in the following manner:
(A) by sending a copy by any commercial delivery
service requiring a signed receipt or by any form of mail requiring a
signed receipt;
(B) as provided in the Florida Rules of Civil
Procedure for service of process;
(C) as otherwise provided by Florida law for service
of process; or
(D) by first-class mail when only in rem or quasi in
rem relief is sought against a person if:
(i) registered or certified mail service to the
addressee requiring a signed receipt is unavailable and if delivery by
commercial delivery service requiring a signed receipt is also
unavailable;
(ii) delivery pursuant to subdivision (a)(3)(A)
is attempted and is refused by the addressee; or
(iii) delivery pursuant to subdivision (a)(3)(A)
is attempted and is unclaimed after notice to the addressee by the
delivering entity.
(4) Persons to be Served. Service of formal notice under
(a)(3)(A) and (a)(3)(D) must be made on the following:
(A) service on an interested person represented by
an attorney must be made by delivery to the attorney at his or her
regular place of business;
(B) service on an interested person who has filed a
request for notice must be made by delivery to such interested
person at the address given in the request for notice;
(C) service on an incapacitated person or a person
with a developmental disability must be made by delivery:
(i) to such person at his or her usual place
of abode; and
(ii) to such person’s legal guardian at the
legal guardian’s usual place of abode or regular place of business
or, if such person does not have a legal guardian, to the person
having care or custody of such person at his or her usual place of
abode or regular place of business;
(D) service on a minor whose disabilities of nonage
are not removed must be made by delivery to the persons
designated to accept service of process on a minor under chapter
48, Florida Statutes, at their usual place of abode or regular place
of business;
(E) service on any other individual must be made
by delivery to such individual at his or her usual place of abode or
to any person authorized to receive service of a summons on behalf
of the individual as provided in chapter 48, Florida Statutes; or
(F) service on a corporation or other business
entity must be made by delivery to such corporation or other
business entity as provided in chapter 48, Florida Statutes.
(5) Completion of Service. Service of formal notice
pursuant to subdivision (a)(3)(A) will be complete upon receipt by
the person to whom delivery is made. Service of formal notice
pursuant to subdivision (a)(3)(B) will be complete as provided in the
Florida Rules of Civil Procedure for service of process. Service of
formal notice pursuant to subdivision (a)(3)(C) will be complete as
provided by Florida law for service of process. Service of formal
notice pursuant to subdivision (a)(3)(D) will be complete upon
mailing.
(6) Proof of Service. Proof of service must be by verified
statement of the person serving formal notice and there must be
attached to the verified statement the receipt signed by the person
to whom delivery was made or other evidence satisfactory to the
court that delivery was made. If service is obtained pursuant to
subdivision (a)(3)(D), the verified statement must state the basis for
service by first-class mail, the date of mailing, and the address to
which the first-class mail was sent, and evidence of delivery is not
required. Proof of service pursuant to subdivisions (a)(3)(B) or
(a)(3)(C) must be made as provided by Florida law for service of
process.
(b) Informal Notice. When informal notice of a petition or
other proceeding is required or permitted, it must be served as
provided in rule 5.041.
(c) “Notice” Defined. In these rules, the Florida Probate
Code, and the Florida Guardianship Law “notice” means informal
notice unless formal notice is specified.
(d) Formal Notice Optional. Formal notice may be given in
lieu of informal notice at the option of the person giving notice
unless the court orders otherwise. When formal notice is given in
lieu of informal notice, formal notice must be given to all interested
persons entitled to notice. When formal notice is given in lieu of
informal notice, that notice does not modify any time period
otherwise specified by statute or these rules.
(e) In the Manner Provided for Service of Formal Notice.
If a document is served in the manner provided for service of formal
notice, service is completed as provided in subdivision (a)(5). Proof
of service must be in the manner set forth in subdivision (a)(6).
Committee Notes
Formal notice is the method of service used in probate
proceedings and the method of service of process for obtaining in
rem jurisdiction over the person’s interest in the estate property.
The court does not acquire personal jurisdiction over a person by
service of formal notice. “The manner provided for service of formal
notice” is as provided in rule 5.040(a)(3).
Informal notice is the method of service of notice given to
interested persons entitled to notice when formal notice is not given
or required.
Reference in this rule to the terms “mail” or “mailing” refers to
use of the United States Postal Service.
Rule History
1975 Revision: Implements section 731.301, Florida Statutes.
1977 Revision: Reference to elisor.
1980 Revision: Editorial changes. Clarification of time for filing
defenses after formal notice. Authorizes court to give relief to
delinquent respondent from ex parte status; relief from service on
numerous persons; allows optional use of formal notice.
1984 Revision: Editorial changes. Eliminates deadline for filing
as opposed to serving defenses after formal notice; defines
procedure subsequent to service of defenses after formal notice;
new requirements for service of formal notice on incompetents and
corporations; defines when service of formal notice is deemed
complete; provisions relating to method of service of informal notice
transferred to new rules 5.041 and 5.042; eliminates waiver of
notice by will.
1988 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1991 Revision: Subdivision (b) amended to define informal
notice more clearly.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Subdivision (a) amended to permit service of
formal notice by commercial delivery service to conform to 1993
amendment to section 731.301(1), Florida Statutes. Editorial
changes.
2001 Revision: Editorial changes in subdivision (a)(3)(A) to
clarify requirements for service of formal notice.
2003 Revision: Committee notes revised.
2005 Revision: Subdivision (a)(3)(A) amended to delete
requirement of court approval of commercial delivery service.
2006 Revision: Committee notes revised.
2007 Revision: Committee notes revised.
2007 Revision: New subdivision (a)(3)(A)(iv) inserted in
response to Cason ex rel. Saferight v. Hammock, 908 So. 2d 512
(Fla. 5th DCA 2005), and subsequent subdivisions renumbered
accordingly. Committee notes revised.
2008 Revision: Subdivision (a)(3)(A)(iii) revised to include
“person with a developmental disability.” Committee notes revised.
2010 Revision: Subdivision (d) amended to clarify that the
optional use of formal notice when only informal notice is required
does not modify any time period otherwise specified by statute or
rule. Committee notes revised.
2012 Revision: Subdivision (b) revised to reflect amendment to
rule 5.041.
2016 Revision: Subdivision (e) created to specify when service
in the manner provided for service of formal notice is completed.
Committee notes revised.
2019 Revision: Subdivision (a) reformatted for easier reading
and corrected syntax. Subdivision (a)(3)(D) amended to provide for
service by first-class mail when only in rem or quasi in rem relief is
sought under certain circumstances. Committee notes revised.
2020 Revision: Committee notes amended.
2023 Revision: Subdivision (a)(6) is amended to note evidence
of formal notice is not required when sent by first-class mail.
Subdivision (e) is amended to refer to subdivision (a)(5). Committee
notes revised.
Statutory References
§ 1.01(3), Fla. Stat. Definitions.
ch. 48, Fla. Stat. Process and service of process.
ch. 49, Fla. Stat. Constructive service of process.
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 731.105, Fla. Stat. In rem proceeding.
§ 731.201(18), (22), Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 731.302, Fla. Stat. Waiver and consent by interested person.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
§ 733.502, Fla. Stat. Resignation of personal representative.
§ 733.613, Fla. Stat. Personal representative’s right to sell real
property.
§ 733.6175, Fla. Stat. Proceedings for review of employment of
agents and compensation of personal representatives and
employees of estate.
§ 733.901, Fla. Stat. Final discharge.
ch. 743, Fla. Stat. Disability of nonage of minors removed.
§ 744.106, Fla. Stat. Notice.
§ 744.301, Fla. Stat. Natural guardians.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 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 and hearing.
§ 744.441, Fla. Stat. Powers of guardian upon court approval.
§ 744.447, Fla. Stat. Petition for authorization to act.
§ 744.477, Fla. Stat. Proceedings for removal of a guardian.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.030 Attorneys.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.560 Petition for appointment of guardian of an
incapacitated person.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. R. Gen. Prac. & Jud. Admin. 2.505 Attorneys.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. Civ. P. 1.070 Process.
Fla. R. Civ. P. Form 1.902 Summons.
RULE 5.041 cases. SERVICE OF PLEADINGS AND DOCUMENTS
Unless the court orders otherwise, every petition or motion for
an order determining rights of an interested person, and every other
pleading or document filed in the particular proceeding which is the
subject matter of such petition or motion, except applications for
witness subpoenas, shall be served on interested persons as set
forth in Florida Rule of General Practice and Judicial
Administration 2.516 unless these rules, the Florida Probate Code,
or the Florida Guardianship Law provides otherwise. No service
need be made on interested persons against whom a default has
been entered, or against whom the matter may otherwise proceed ex
parte, unless a new or additional right or demand is asserted. For
purposes of this rule an interested person shall be deemed a party
under rule 2.516.
If the interested person is a minor whose disabilities of nonage
are not removed, and who is not represented by an attorney, then
service shall be on the persons designated to accept service of
process on a minor under chapter 48, Florida Statutes.
Committee Notes
Derived from Florida Rule of Civil Procedure 1.080. Regulates
the service of pleadings and documents in proceedings on petitions
or motions for determination of rights. It is not applicable to every
pleading and document served or filed in the administration of a
guardianship or decedent’s estate.
Rule History
1984 Revision: New rule. Subdivision (c) is same as former
rule 5.040(d).
1988 Revision: Committee notes revised. Citation form
changes in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Subdivision (b) amended to allow service to be
made by facsimile. Committee notes revised.
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).
2003 Revision: Committee notes revised.
2005 Revision: Changes in subdivisions (b) and (f) to clarify
service requirements, and editorial changes in (e).
2006 Revision: Committee notes revised.
2007 Revision: Provisions regarding service on a minor added
in subdivision (b) in response to Cason ex rel. Saferight v. Hammock,
908 So. 2d 512 (Fla. 5th DCA 2005). Committee notes revised.
2008 Revision: Committee notes revised.
2010 Revision: Committee notes revised.
2012 Revision: Portions of subdivision (b) and all of
subdivisions (d), (e), (f), and (g) deleted in response to creation of
Rule 2.516 of the Rules of General Practice and Judicial
Administration. Committee notes revised.
2016 Revision: Committee notes revised.
Statutory References
ch. 39, Fla. Stat. Proceedings relating to children.
ch. 48, Fla. Stat. Process and service of process.
ch. 61, Fla. Stat. Dissolution of marriage; support; time-
sharing.
ch. 63, Fla. Stat. Adoption.
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 731.201, Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
§ 733.705(2), (4), Fla. Stat. Payment of and objection to claims.
ch. 743, Fla. Stat. Disability of nonage of minors removed.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 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 and hearing.
§ 744.447, Fla. Stat. Petition for authorization to act.
ch. 751, Fla. Stat. Temporary custody of minor children by
extended family.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.030 Attorneys.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.150(c) Order requiring accounting.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.240(a) Notice of administration.
Fla. Prob. R. 5.340(d) Inventory.
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. 5.649 Guardian advocate.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. R. Civ. P. 1.080 Service of pleadings and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.505 Attorneys.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.042 cases. TIME
(a) Computation. Computation of time shall be governed by
Florida Rule of General Practice and Judicial Administration 2.514.
(b) Enlargement. When an act is required or allowed to be
done at or within a specified time by these rules, by order of court,
or by notice given thereunder, for cause shown the court at any
time in its discretion
(1) with or without notice, may order the period
enlarged if request therefor is made before the expiration of the
period originally prescribed or as extended by a previous order; or
(2) on motion made and notice, after the expiration of
the specified period, may permit the act to be done when failure to
act was the result of excusable neglect. The court under this rule
may not extend the time for serving a motion for rehearing or
enlarge any period of time governed by the Florida Rules of
Appellate Procedure.
(c) Service for Hearings. A copy of any written petition or
motion which may not be heard ex parte and a copy of the notice of
the hearing thereon shall be served a reasonable time before the
time specified for the hearing.
(d) Additional Time After Service by Mail or E-mail.
Florida Rule of General Practice and Judicial Administration
2.514(b) shall apply to the computation of time following service,
except for documents served by formal notice or in the manner
provided for service of formal notice.
Committee Notes
This rule is derived from Florida Rule of Civil Procedure 1.090.
Rule History
1984 Revision: New rule.
1988 Revision: Editorial changes in (a) and (b). Subdivision (a)
enlarged to include closing of the clerk’s office as a legal holiday. In
Clara P. Diamond, Inc. v. Tam-Bay Realty, Inc., 462 So. 2d 1168
(Fla. 2d DCA 1984), the Second District Court of Appeal suggested
that Florida Rule of Civil Procedure 1.090(b) be clarified to leave no
question that the court may not extend the time for rehearing,
appeal, or petition for certiorari regardless of whether a request to
enlarge the time therefor was made before the expiration of the time
allowed. Because the format of rule 5.042(b) was substantially the
same as the format of rule 1.090(b), subdivision (b) is amended to
conform for the sake of clarity. Committee notes revised.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2005 Revision: Subdivision (d) amended to clarify exception to
mailing rule for service of formal notice and service in the manner
provided for service of formal notice. Committee notes revised.
2008 Revision: Committee notes revised.
2012 Revision: Subdivision (a) revised to refer to Rule 2.514
and delete duplicative provisions. Subdivision (d) revised to
incorporate service by e-mail and the filing and service of
documents, rather than papers. Committee notes revised.
2016 Revision: Subdivision (d) revised to clarify that Florida
Rule of General Practice and Judicial Administration 2.514(b) does
not apply if a document is served by formal notice or in the manner
provided for service of formal notice. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 683.01, Fla. Stat. Legal holidays.
§ 731.301, Fla. Stat. Notice.
§ 732.107, Fla. Stat. Escheat.
§ 732.2135, Fla. Stat. Time of election; extensions; withdrawal.
§ 732.402, Fla. Stat. Exempt property.
§ 732.901, Fla. Stat. Production of wills.
§ 733.104, Fla. Stat. Suspension of statutes of limitation in
favor of the personal representative.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.
§ 733.701, Fla. Stat. Notifying creditors.
§ 733.702, Fla. Stat. Limitations on presentation of claims.
§ 733.705, Fla. Stat. Payment of and objection to claims.
§ 733.710, Fla. Stat. Limitations on claims against estates.
§ 733.816, Fla. Stat. Disposition of unclaimed property held by
personal representatives.
§ 744.3085, Fla. Stat. Guardian advocates.
Rule References
Fla. Prob. R. 5.040(a)(1) Notice.
Fla. Prob. R. 5.150 Order requiring accounting.
Fla. Prob. R. 5.240 Notice of administration.
Fla. Prob. R. 5.241 Notice to creditors.
Fla. Prob. R. 5.340(a)–(b) Inventory.
Fla. Prob. R. 5.345 Accountings other than personal
representatives’ final accountings.
Fla. Prob. R. 5.395 Notice of federal estate tax return.
Fla. Prob. R. 5.400 Distribution and discharge.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. Prob. R. 5.700 Objection to guardianship reports.
Fla. R. Civ. P. 1.090 Time.
Fla. R. Gen. Prac. & Jud. Admin. 2.514 Computing and
extending time.
RULE 5.043 cases. DEPOSIT OF WILLS AND CODICILS
Notwithstanding any rule to the contrary, and unless the court
orders otherwise, any original executed will or codicil, including but
not limited to an electronic will, deposited with the court must be
retained by the clerk in its original form and must not be destroyed
or disposed of by the clerk for 20 years after submission regardless
of whether the will or codicil has been permanently recorded as
defined by Florida Rule of General Practice and Judicial
Administration 2.430.
Committee Notes
2012 Adoption. Florida Rule of General Practice and Judicial
Administration 2.525 requires that all documents be filed with the
court electronically. Although the Florida Statutes direct deposit of
a will, rather than the filing of the will, the committee believes that
original wills and codicils should be retained in their original form
longer than other documents filed with the court due to the unique
evidentiary aspects of the actual document. These unique aspects
could be lost forever if the original document were converted to
electronic form and the original destroyed.
Rule History
2012 Revision: New Rule.
2020 Revision: Added reference to deposit of electronic wills
consistent with section 732.526, Florida Statutes. Committee notes
revised.
Statutory References
§ 731.201(16), (40), Fla. Stat. General definitions.
§ 732.526, Fla. Stat. Probate.
§ 732.901, Fla. Stat. Production of wills.
Rule References
Fla. R. Gen. Prac. & Jud. Admin. 2.430 Retention of court
records.
Fla. R. Gen. Prac. & Jud. Admin. 2.525 Electronic filing.
RULE 5.050 cases. TRANSFER OF PROCEEDINGS
(a) Incorrect Venue. When any proceeding is filed laying
venue in the wrong county, the court may transfer the proceeding
in the same manner as provided in the Florida Rules of Civil
Procedure. Any action taken by the court or the parties before the
transfer is not affected because of the improper venue.
(b) Change of Residence of Ward. When the residence of a
ward is changed to another county, the guardian of the person or
the guardian advocate shall have the venue of the guardianship
changed to the county of the acquired residence.
Committee Notes
Subdivision (b) of this rule represents a rule implementation of
the procedure found in section 744.1097(3), Florida Statutes.
Rule History
1975 Revision: Same as section 733.101(3), Florida Statutes.
1977 Revision: Title changed to indicate that the rule is one
dealing with transfer.
1988 Revision: Prior rule renumbered as (a). New (b) is rule
implementation of procedure in section 744.202(2), Florida
Statutes. Editorial changes. Committee notes expanded. Citation
form changes in rule and committee notes.
1991 Revision: Editorial changes.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
2003 Revision: Committee notes revised.
2008 Revision: Change in (b) to add reference to guardian
advocate. Committee notes revised.
2016 Revision: Committee notes revised to reflect renumbering
of section 744.202(3) to section 744.1097(3), Florida Statutes.
Updated statutory references.
Statutory References
ch. 47, Fla. Stat. Venue.
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 733.101, Fla. Stat. Venue of probate proceedings.
§ 744.106, Fla. Stat. Notice.
§ 744.1096, Fla. Stat. Domicile of ward.
§ 744.1097, Fla. Stat. Venue.
§ 744.1098, Fla. Stat. Change of ward’s residence.
§ 744.306, Fla. Stat. Foreign guardians.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.3201, Fla. Stat. Petition to determine incapacity.
Rule References
Fla. Prob. R. 5.200(d) Petition for administration.
Fla. Prob. R. 5.240(b)(3), (d) Notice of administration.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. R. Civ. P. 1.060 Transfers of actions.
RULE 5.060 cases. REQUEST FOR NOTICES AND COPIES OF
PLEADINGS
(a) Request. Any interested person who desires notice of
proceedings in the estate of a decedent or ward may file a separate
written request for notice of further proceedings, designating
therein such person’s residence and post office address. When such
person’s residence or post office address changes, a new
designation of such change shall be filed in the proceedings. A
person filing such request, or address change, must serve a copy on
the attorney for the personal representative or guardian, and
include a certificate of service.
(b) Notice and Copies. A party filing a request shall be
served thereafter by the moving party with notice of further
proceedings and with copies of subsequent pleadings and
documents as long as the party is an interested person.
Committee Notes
Rule History
1975 Revision: This rule substantially incorporates the
provisions 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 or guardian. Even though a request under this rule
has not been made, informal notice as provided in rule 5.040(b)(3)
may still be required.
1977 Revision: Editorial and citation form change in
committee note.
1980 Revision: Caveat, the personal representative may want
to give notice to parties even though not required, for example,
where an independent action has been filed on an objected claim.
1988 Revision: Captions added to subdivisions. Committee
notes expanded. Citation form changes in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2010 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
2013 Revision: Subdivisions (a) and (b) revised to reflect
service of documents, rather than papers. Subdivision (a) revised to
shift responsibility for service of the request from the clerk to the
interested person making the request for notice and copies.
Editorial changes to conform to the court’s guidelines for rule
submissions as set forth in AOSC06-14.
Statutory References
§ 731.201, Fla. Stat. General definitions.
§ 733.604, Fla. Stat. Inventories and accountings; public
records exemptions.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.340 Inventory.
Fla. Prob. R. 5.341 Estate information.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.065 cases. NOTICE OF CIVIL ACTION OR ANCILLARY
ADMINISTRATION
(a) Civil Action. A personal representative and a guardian
shall file a notice when a civil action has been instituted by or
against the personal representative or the guardian. The notice
shall contain:
(1) the names of the parties;
(2) the style of the court and the case number;
(3) the county and state where the proceeding is
pending;
(4) the date of commencement of the proceeding; and
(5) a brief statement of the nature of the proceeding.
(b) Ancillary Administration. The domiciliary personal
representative shall file a notice when an ancillary administration
has commenced, which notice shall contain:
(1) the name and residence address of the ancillary
personal representative; and
(2) the information required in subdivisions (a)(2), (3),
and (4) above.
(c) Copies Exhibited. A copy of the initial pleading may be
attached to the notice. To the extent an attached initial pleading
states the required information, the notice need not restate it.
Committee Notes
This rule reflects a procedural requirement not founded on a
statute or rule.
Rule History
1984 Revision: New rule.
1988 Revision: Committee notes expanded.
1992 Revision: Editorial change. Citation form changes in
committee notes.
2000 Revision: Subdivision (b) amended to eliminate
requirement to set forth nature and value of ancillary assets.
2020 Revision: Statutory references amended.
2021 Revision: Statutory references amended.
Statutory References
§ 733.612(20), Fla. Stat. Transactions authorized for the
personal representative; exceptions.
§ 744.441(1)(k), Fla. Stat. Powers of guardian upon court
approval.
RULE 5.080 cases. DISCOVERY AND SUBPOENA
(a) Adoption of Civil Rules. The following Florida Rules of
Civil Procedure shall apply in all probate and guardianship
proceedings:
(1) Rule 1.280, general provisions governing discovery.
(2) Rule 1.290, depositions before action or pending
appeal.
(3) Rule 1.300, persons before whom depositions may
be taken.
(4) Rule 1.310, depositions upon oral examination.
(5) Rule 1.320, depositions upon written questions.
(6) Rule 1.330, use of depositions in court proceedings.
(7) Rule 1.340, interrogatories to parties.
(8) Rule 1.350, production of documents and things
and entry upon land for inspection and other purposes.
(9) Rule 1.351, production of documents and things
without deposition.
(10) Rule 1.360, examination of persons.
(11) Rule 1.370, requests for admission.
(12) Rule 1.380, failure to make discovery; sanctions.
(13) Rule 1.390, depositions of expert witnesses.
(14) Rule 1.410, subpoena.
(b) Limitations and Costs. In order to conserve the assets
of the estate, the court has broad discretion to limit the scope and
the place and manner of the discovery and to assess the costs,
including attorneys’ fees, of the discovery against the party making
it or against 1 or more of the beneficiaries of the estate or against
the ward in such proportions as the court determines, considering,
among other factors, the benefit derived therefrom.
(c) Application. It is not necessary to have an adversary
proceeding under rule 5.025 to utilize the rules adopted in
subdivision (a) above. Any interested person may utilize the rules
adopted in subdivision (a).
Committee Notes
Subdivision (b) is not intended to result in the assessment of
costs, including attorney’s fees, in every instance in which discovery
is 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
Estate of Posner, 492 So. 2d 1093 (Fla. 3d DCA 1986).
Rule History
1975 Revision: This rule is the same as prior rule 5.080,
broadened to include guardianships and intended to clearly permit
the use of discovery practices in nonadversary probate and
guardianship matters.
1977 Revision: Editorial change in citation form in committee
note.
1984 Revision: Florida Rules of Civil Procedure 1.290, 1.300,
1.351, and 1.410 have been added.
1988 Revision: Subdivision (a)(15) deleted as duplicative of
rule 5.070 Subpoena. Editorial change in (b). Citation form change
in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Reference to rule 1.400 eliminated because of
deletion of that rule from the Florida Rules of Civil Procedure.
Editorial change.
2002 Revision: Reference to rule 1.410 transferred to
subdivision (a) from former rule 5.070. Subdivision (b) amended to
give court discretion to assess attorneys’ fees. Subdivision (c) added.
Committee notes revised.
2006 Revision: Committee notes revised.
2007 Revision: Committee notes revised.
2016 Revision: Florida Rule of Civil Procedure 1.451 has been
added to subdivision (a). Committee notes revised.
Statutory References
§ 731.201(23), Fla. Stat. General definitions.
§ 733.106, Fla. Stat. Costs and attorney’s fees.
§ 744.105, Fla. Stat. Costs.
§ 744.108, Fla. Stat. Guardian’s and attorney’s fees and
expenses.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. R. Gen. Prac. & Jud. Admin. 2.535 Court reporting.
RULE 5.095 cases. GENERAL AND SPECIAL MAGISTRATES
(a) General Magistrates. The court may appoint general
magistrates as the court finds necessary. General magistrates shall
be members of The Florida Bar and shall continue in office until
removed by the court. The order making an appointment shall be
recorded. Each general magistrate shall take the oath required of
officers by the Florida Constitution. The oath shall be recorded
before the magistrate begins to act.
(b) Special Magistrates. The court may appoint members of
The Florida Bar as special magistrates for any particular service
required by the court. Special magistrates shall be governed by all
laws and rules relating to general magistrates, except special
magistrates shall not be required to make oath unless specifically
required by the court. For good cause shown, the court may appoint
a person other than a member of The Florida Bar as a special
magistrate.
(c) Reference. No referral shall be made to a magistrate
without the consent of the parties. When a referral is made to a
magistrate, either party may set the action for hearing before the
magistrate.
(d) General Powers and Duties. Every magistrate shall act
under the direction of the court. Process issued by a magistrate
shall be directed as provided by law. All grounds for disqualification
of a judge shall apply to magistrates.
(e) Bond. When not otherwise provided by law, the court
may require magistrates who are appointed to dispose of real or
personal property to give bond and surety conditioned for the
proper payment of all money that may come into their hands and
for the due performance of their duties. The bond shall be made
payable to the State of Florida and shall be for the benefit of all
persons aggrieved by any act of the magistrate.
(f) Hearings. Hearings before any magistrate may be held in
the county where the action is pending or at any other place by
order of the court for the convenience of the witnesses or the
parties. The magistrate shall assign a time and place for
proceedings as soon as reasonably possible after a referral is made
and give notice to all parties. If any party fails to appear, the
magistrate may proceed ex parte or may continue the hearing to a
future day, with notice to the absent party. The magistrate shall
proceed with reasonable diligence and the least practicable delay.
Any party may apply to the court for an order directing the
magistrate to accelerate the proceedings and to make a report
promptly. Evidence shall be taken in writing or by electronic
recording by the magistrate or by some other person under the
magistrate’s authority in the magistrate’s presence and shall be
filed with the magistrate’s report. The magistrate may examine and
take testimony from the parties and their witnesses under oath on
all matters contained in the referral and may require production of
all books, papers, writings, vouchers, and other documents
applicable to those matters. The magistrate shall admit only
evidence that would be admissible in court. The magistrate may
take all actions concerning evidence that may be taken by the
court. All parties accounting before a magistrate shall bring in their
accounts in the form of accounts payable and receivable, and any
other parties who are not satisfied with the account may examine
the accounting party orally or by interrogatories or deposition as
the magistrate directs. All depositions and documents that have
been taken or used previously in the action may be used before the
magistrate.
(g) Magistrate’s Report. The magistrate’s report shall
contain a description of the matters considered and the magistrate’s
conclusion and any recommendations. No part of any statement of
facts, account, charge, deposition, examination, or answer used
before the magistrate shall be recited.
(h) Filing Report; Notice; Exceptions. The magistrate shall
file the report and serve copies on the parties. The parties may serve
exceptions to the report within 10 days from the time it is served on
them. If no exceptions are filed within that period, the court shall
take appropriate action on the report. All timely filed exceptions
shall be heard on reasonable notice by either party.
(i) Application of Rule. This rule shall not apply to the
appointment of magistrates for the specific purpose of reviewing
guardianship inventories, accountings, and plans as otherwise
governed by law and these rules.
Committee Notes
Rule History
2007 Revision: This rule, patterned after Florida Rule of Civil
Procedure 1.490, is created to implement the use of magistrates in
probate and guardianship proceedings other than those specifically
addressed in rule 5.697.
Rule References
Fla. Prob. R. 5.697 Magistrates’ review of guardianship
inventories, accountings, and plans.
Fla. R. Civ. P. 1.490 Magistrates.
RULE 5.100 cases. RIGHT OF APPEAL
Appeal of final orders and discretionary appellate review of
non-final orders are governed by the Florida Rules of Appellate
Procedure.
Committee Notes
For purposes of appellate review, the service of a motion for
rehearing postpones rendition of final orders only. A motion for
rehearing of a non-final order does not toll the running of the time
to seek review of that order.
Rule History
1975 Revision: Same as prior rule 5.100 with editorial
changes.
1977 Revision: Citation form change in committee note.
1988 Revision: Committee notes expanded. Citation form
changes in rule and committee notes.
1992 Revision: Editorial changes. Citation form changes in
committee notes.
1996 Revision: Superseded by Florida Rule of Appellate
Procedure 9.110(a)(2).
2000 Revision: Rewritten because former rule was superseded.
Revisions to committee notes to amend text and to include cross-
references to other rules.
2003 Revision: Committee notes revised.
Rule References
Fla. Prob. R. 5.020(d) Pleadings; verifications; motions.
Fla. R. App. P. 9.020(h) Definitions.
Fla. R. App. P. 9.110(a)(2), (b) Appeal proceedings to review
final orders of lower tribunals and orders granting new trial in jury
and non-jury cases.
Fla. R. App. P. 9.130(b) Proceedings to review non-final orders
and specified final orders.
RULE 5.110 cases. ADDRESS DESIGNATION FOR PERSONAL
REPRESENTATIVE OR GUARDIAN;
DESIGNATION OF RESIDENT AGENT AND
ACCEPTANCE
(a) Address Designation of Personal Representative or
Guardian. Before letters are issued, the personal representative or
guardian must file a designation of street address, and mailing
address. If the personal representative or guardian is an individual,
the designation must also include the individual’s residence
address. The personal representative or guardian must notify the
court of any change in its residence address, street address, or
mailing address within 20 days of the change.
(b) Designation of Resident Agent. Before letters are
issued, a personal representative or guardian must file a
designation of resident agent for service of process or notice, and
the acceptance by the resident agent. A designation of resident
agent is not required if a personal representative or guardian is (1) a
corporate fiduciary having an office in Florida, or (2) a Florida Bar
member who is a resident of and has an office in Florida. The
designation must contain the name, street address, and mailing
address of the resident agent. If the resident agent is an individual
who is not an attorney, the designation must also include the
individual’s residence address.
(c) Residency Requirement. A resident agent, other than a
member of The Florida Bar who is a resident of Florida, must be a
resident of the county where the proceedings are pending.
(d) Acceptance by Resident Agent. The resident agent
must sign a written acceptance of designation.
(e) Incorporation in Other Pleadings. The designation of
the address of the personal representative or guardian, the
designation of resident agent, or acceptance may be incorporated in
the petition for administration, the petition for appointment of
guardian, or the personal representative’s or guardian’s oath.
(f) Effect of Designation and Acceptance. The designation
of and acceptance by the resident agent shall constitute consent to
service of process or notice on the agent and shall be sufficient to
bind the personal representative or guardian:
(1) in its representative capacity in any action; and
(2) in its personal capacity only in those actions in
which the personal representative or guardian is sued personally for
claims arising from the administration of the estate or
guardianship.
(g) Successor Agent. If the resident agent dies, resigns, or is
unable to act for any other reason, the personal representative or
guardian must appoint a successor agent within 10 days after
receiving notice that such event has occurred.
Committee Notes
Rule History
1977 Revision: Change in committee note to conform to
statutory renumbering. Substantially the same as prior rule 5.210,
except that under prior rule, designation was required to be filed
within 10 days after letters issued.
1984 Revision: Captions added to subdivisions. New
subdivision (b) added. Requires filing acceptance at the same time
as filing designation. Committee notes revised.
1988 Revision: Change in (c) to clarify that the personal
representative, if a member of The Florida Bar, may not also serve
as resident agent for service of process or notice. Citation form
change in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2000 Revision: Extensive editorial changes to rule. Rule
reformatted for clarity and revised to permit an attorney serving as
resident agent to designate a business address in lieu of a residence
address.
2003 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
2010 Revision: Subdivision (a) amended to require the
personal representative or guardian to notify the court of any
change of address to facilitate timely communication with the
personal representative or guardian.
2013 Revision: Subdivision (b) amended to limit to individuals
the requirement that the guardian or personal representative
provide a designation of residence address, excluding corporate
fiduciaries. Editorial changes to conform to the court’s guidelines
for rules submissions as set forth in AOSC06-14.
Rule References
Fla. Prob. R. 5.200 Petition for administration.
Fla. Prob. R. 5.320 Oath of personal representative.
Fla. Prob. R. 5.560 Petition for appointment of guardian of an
incapacitated person.
Fla. Prob. R. 5.649 Guardian advocate.
RULE 5.120 cases. ADMINISTRATOR AD LITEM AND GUARDIAN AD
LITEM
(a) Appointment. When it is necessary that the estate of a
decedent or a ward be represented in any probate or guardianship
proceeding and there is no personal representative of the estate or
guardian of the ward, or the personal representative or guardian is
or may be interested adversely to the estate or ward, or is enforcing
the personal representative’s or guardian’s own debt or claim
against the estate or ward, or the necessity arises otherwise, the
court may appoint an administrator ad litem or a guardian ad litem,
as the case may be, without bond or notice for that particular
proceeding. At any point in a proceeding, a court may appoint a
guardian ad litem to represent the interests of an incapacitated
person, an unborn or unascertained person, a minor or any other
person otherwise under a legal disability, a person with a
developmental disability, or a person whose identity or address is
unknown, if the court determines that representation of the interest
otherwise would be inadequate. If not precluded by conflict of
interest, a guardian ad litem may be appointed to represent several
persons or interests. The administrator ad litem or guardian ad
litem shall file an oath to discharge all duties faithfully and upon
the filing shall be qualified to act. No process need be served upon
the administrator ad litem or guardian ad litem, but such person
shall appear and defend as directed by the court.
(b) Petition. The petition for appointment of a guardian ad
litem shall state to the best of petitioner’s information and belief:
(1) the initials and residence address of each minor,
person with a developmental disability, or incapacitated person and
year of birth of each minor who has an interest in the proceedings;
(2) the name and address of any guardian appointed
for each minor, person with a developmental disability, or
incapacitated person;
(3) the name and residence address of any living
natural guardians or living natural guardian having legal custody of
each minor, person with a developmental disability, or
incapacitated person;
(4) a description of the interest in the proceedings of
each minor, person with a developmental disability, or
incapacitated person; and
(5) the facts showing the necessity for the appointment
of a guardian ad litem.
(c) Notice. Within 10 days after appointment, the petitioner
shall serve conformed copies of the petition for appointment of a
guardian ad litem and order to any guardian, or if there is no
guardian, to the living natural guardians or the living natural
guardian having legal custody of the minor, person with a
developmental disability, or incapacitated person.
(d) Report. The guardian ad litem shall serve conformed
copies of any written report or finding of the guardian ad litem’s
investigation and answer filed in the proceedings, petition for
compensation and discharge, and the notice of hearing on the
petition to any guardian, or in the event that there is no guardian,
to the living natural guardians or the living natural guardian having
legal custody of the minor, person with a developmental disability,
or incapacitated person.
(e) Service of Petition and Order. Within 10 days after
appointment, the petitioner for an administrator ad litem shall
serve conformed copies of the petition for appointment and order to
the attorney of record of each beneficiary and to each known
beneficiary not represented by an attorney of record.
(f) Enforcement of Judgments. When an administrator ad
litem or guardian ad litem recovers any judgment or other relief, it
shall be enforced as other judgments. Execution shall issue in favor
of the administrator ad litem or guardian ad litem for the use of the
estate or ward and the money collected shall be paid to the personal
representative or guardian, or as otherwise ordered by the court.
(g) Claim of Personal Representative. The fact that the
personal representative is seeking reimbursement for claims against
the decedent paid by the personal representative does not require
appointment of an administrator ad litem.
Committee Notes
Rule History
1977 Revision: Editorial change in (a) limiting application of
rule to probate and guardianship proceedings. In (b) the petition for
appointment of a guardian need not be verified. Deletion of (g) as
being substantive rather than procedural and changing former (h)
to new (g). Change in committee note to conform to statutory
renumbering.
This rule implements sections 731.303(5), 733.308, and
744.391, Florida Statutes, and includes some of the provisions of
prior rule 5.230.
1988 Revision: Editorial changes; captions added to
paragraphs. Citation form changes in committee notes.
1992 Revision: Addition of phrase in subdivision (a) to conform
to 1992 amendment to section 731.303(5), Florida Statutes.
Editorial changes. Committee notes revised. Citation form changes
in committee notes.
2003 Revision: Committee notes revised.
2006 Revision: Committee notes revised.
2008 Revision: Subdivisions (a), (b), (c), and (d) amended to
include persons with a developmental disability. Committee notes
revised.
2012 Revision: The phrase “deliver or mail” in subdivisions (c),
(d), and (e) has been replaced with the word “serve” to comply with
other rules relating to service of pleadings and documents.
Committee notes revised.
2014 Revision: Amends subdivision (b)(1) to conform to Florida
Rule of General Practice and Judicial Administration 2.425.
Committee notes revised.
2020 Revision: Committee notes revised. Citation form
changes in committee notes.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 731.303, Fla. Stat. Representation.
§ 733.308, Fla. Stat. Administrator ad litem.
§ 733.708, Fla. Stat. Compromise.
§ 744.3025, Fla. Stat. Claims of minors.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.387, Fla. Stat. Settlement of claims.
§ 744.391, Fla. Stat. Actions by and against guardian or ward.
§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities;
court approval; breach of fiduciary duty.
§ 985.43, Fla. Stat. Predisposition reports; other evaluations.
§ 985.441, Fla. Stat. Commitment.
§ 985.455, Fla. Stat. Other dispositional issues.
Rule References
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.122 cases. CURATORS
(a) Petition for Appointment. The petition for appointment
of a curator shall be verified and shall contain:
(1) the petitioner’s name, address, and interest, if any,
in the estate;
(2) the decedent’s name, address, date and place of
death, and state and county of domicile;
(3) the names and addresses of the persons apparently
entitled to letters of administration and any known beneficiaries;
(4) the nature and approximate value of the assets;
(5) a statement showing venue;
(6) a statement as to why a curator should be
appointed; and
(7) the name and address of any proposed curator.
The court may appoint a curator sua sponte.
(b) Appointment. Before letters of curatorship are issued,
the curator shall file a designation of resident agent and
acceptance, and an oath, as is required for personal representatives
under these rules. The court shall issue letters of curatorship that
shall entitle the curator to possess or control the decedent’s
property, which the court may enforce through contempt
proceedings.
(c) Notice. Formal notice shall be given to the person
apparently entitled to letters, if any. If it is likely that the decedent’s
property will be wasted, destroyed, or removed beyond the
jurisdiction of the court and if the appointment of a curator would
be delayed by giving notice, the court may appoint a curator
without notice.
(d) Powers. By order, the court may authorize the curator to
perform any duty or function of a personal representative, including
publication and service of notice to creditors, or if a will has been
admitted, service of notice of administration.
(e) Inventory and Accounting. The curator shall file an
inventory within 30 days after issuance of letters of curatorship.
When the personal representative is appointed, the curator shall
account for and deliver all estate assets in the curator’s possession
to the personal representative within 30 days after issuance of
letters of administration.
(f) Petition to Reconsider. If a curator has been appointed
without notice, any interested party who did not receive notice may,
at any time, petition to reconsider the appointment.
(g) Subject to Other Provisions. Curators shall be subject
to the provisions of these rules and other applicable law concerning
personal representatives.
Committee Notes
This rule implements of the procedure found in section
733.501, 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 is protection of estate property, the procedure facilitates
speed and flexibility while recognizing due process concerns. It is
not intended that this rule change the effect of the statute from
which it has been derived, but the rule has been reformatted to
conform to the structure of these rules. Furthermore, the
Committee does not intend to create a new procedure, except that
subdivision (d) specifies certain acts that the court may authorize
the curator to perform. This specificity of example, while not
included in the statute, is not intended to limit the authorized acts
to those specified in the rule. The appointment of a curator without
notice is tantamount to a temporary injunction. Thus, due process
considerations suggest an expedited hearing to reconsider the
appointment of a curator by any interested party who did not
receive notice.
Rule History
1988 Revision: New rule.
1992 Revision: Editorial changes. Citation form changes in
committee notes.
2003 Revision: Extensive changes to rule to clarify procedure
for appointment of curator. Committee notes revised.
Statutory References
§ 733.402, Fla. Stat. Bond of fiduciary; when required; form.
§ 733.501, Fla. Stat. Curators.
Rule Reference
Fla. Prob. R. 5.020 Pleadings; verification; motions.
RULE 5.150 cases. ORDER REQUIRING ACCOUNTING
(a) Accountings Required by Statute. When any personal
representative or guardian fails to file an accounting or return
required by statute or rule, the court on its own motion or on the
petition of an interested person shall order the personal
representative or guardian to file the accounting or return within 15
days from the service on the personal representative or guardian of
the order, or show cause why he or she should not be compelled to
do so.
(b) Accountings Not Required by Statute. On the petition
of an interested person, or on its own motion, the court may require
the personal representative or guardian to file an accounting or
return not otherwise required by statute or rule. The order requiring
an accounting or return shall order the personal representative or
guardian to file the accounting or return within a specified time
from service on the personal representative or guardian of the
order, or show cause why he or she should not be compelled to do
so.
(c) Service. A copy of the order shall be served on the
personal representative or guardian and the personal
representative’s or guardian’s attorney.
Committee Notes
The court on its motion or on petition of an interested person
may require a personal representative or guardian to file an
accounting or return not otherwise required by statute.
Rule History
1977 Revision: Change in committee notes.
1984 Revision: Extensive editorial changes. Committee notes
revised and expanded.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
Statutory References
§ 38.22, Fla. Stat. Power to punish contempts.
§ 38.23, Fla. Stat. Contempts defined.
§ 393.12(2)(h), Fla. Stat. Capacity; appointment of guardian
advocate.
§ 733.5036, Fla. Stat. Accounting and discharge following
resignation.
§ 733.508, Fla. Stat. Accounting and discharge of removed
personal representatives upon removal.
§ 733.901, Fla. Stat. Final discharge.
ch. 738, Fla. Stat. Principal and income.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.367, Fla. Stat. Duty to file annual guardianship report.
§ 744.3678, Fla. Stat. Annual accounting.
§ 744.3685, Fla. Stat. Order requiring guardianship report;
contempt.
§ 744.369, Fla. Stat. Judicial review of guardianship reports.
§ 744.467, Fla. Stat. Resignation of guardian.
§ 744.511, Fla. Stat. Accounting upon removal.
§ 744.517, Fla. Stat. Proceedings for contempt.
§ 744.521, Fla. Stat. Termination of guardianship.
§ 744.524, Fla. Stat. Termination of guardianship on change of
domicile of resident ward.
§ 744.527, Fla. Stat. Final reports and applications for
discharge; hearing.
Rule References
Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.650 Resignation or disqualification of guardian;
appointment of successor.
Fla. Prob. R. 5.660 Proceedings for removal of guardian.
Fla. Prob. R. 5.670 Termination of guardianship on change of
domicile of resident ward.
Fla. Prob. R. 5.680 Termination of guardianship.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. Prob. R. 5.695 Annual guardianship report.
Fla. Prob. R. 5.696 Annual accounting.
Fla. Prob. R. 5.697 Magistrates’ review of guardianship
accountings and plans.
RULE 5.160 cases. PRODUCTION OF ASSETS
On the petition of an interested person, or on its own motion,
the court may require any personal representative or guardian to
produce satisfactory evidence that the assets of the estate are in the
possession or under the control of the personal representative or
guardian and may order production of the assets in the manner and
for the purposes directed by the court.
Committee Notes
Rule History
1977 Revision: Change in committee notes.
1984 Revision: Minor editorial changes. Committee notes
revised.
1988 Revision: Editorial changes.
1992 Revision: Editorial changes. Committee notes revised.
Statutory Reference
§ 744.373, Fla. Stat. Production of property.
RULE 5.170 cases. EVIDENCE
In proceedings under the Florida Probate Code and the Florida
Guardianship Law the rules of evidence in civil actions are
applicable unless specifically changed by the Florida Probate Code,
the Florida Guardianship Law, or these rules.
Committee Notes
Rule History
1977 Revision: New rule.
1984 Revision: To further clarify the intent of the rule to
incorporate the provisions of the Florida Evidence Code (chapter 90,
Florida Statutes) when not in conflict with the Florida Probate Code
or Florida Guardianship Law, or rules applicable to these particular
proceedings.
1992 Revision: Citation form changes in committee notes.
2003 Revision: Committee notes revised.
Statutory References
ch. 90, Fla. Stat. Florida Evidence Code.
§ 733.107, Fla. Stat. Burden of proof in contests; presumption
of undue influence.
RULE 5.171 cases. EVIDENCE OF DEATH
In a proceeding under these rules, the following shall apply:
(a) Death Certificate. An authenticated copy of a death
certificate issued by an official or agency of the place where the
death purportedly occurred or by an official or agency of the United
States is prima facie proof of the fact, place, date, and time of death
and the identity of the decedent.
(b) Other Records. A copy of any record or report of a
governmental agency, domestic or foreign, that a person is dead,
alive, missing, detained, or, from the facts related, presumed dead
is prima facie evidence of the status, dates, circumstances, and
places disclosed by the record or report.
(c) Extended Absence. A person who is absent from the
place of that person’s last known domicile for a continuous period
of 5 years and whose absence is not satisfactorily explained after
diligent search and inquiry is presumed dead. The person’s death is
presumed to have occurred at the end of the period unless there is
evidence establishing that death occurred earlier.
Committee Notes
This rule represents a rule implementation of the procedure
found in section 731.103, Florida Statutes. It is not intended to
change the effect of the statute from which it was derived but has
been reformatted to conform with the structure of these rules. It is
not intended to create a new procedure or modify an existing
procedure, except that additional language has been added which
was not in 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 issued by the Department of State or the
Department of Defense.
Rule History
1988 Revision: New rule.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
Statutory References
§ 731.103, Fla. Stat. Evidence as to death or status.
§ 744.521, Fla. Stat. Termination of guardianship.
Rule References
Fla. Prob. R. 5.205 Filing evidence of death.
Fla. Prob. R. 5.680 Termination of guardianship.
RULE 5.180 cases. WAIVER AND CONSENT
(a) Manner of Execution. A waiver or consent as authorized
by law shall be in writing and signed by the person executing the
waiver or consent.
(b) Contents. The waiver or consent shall state:
(1) the person’s interest in the subject of the waiver or
consent;
(2) if the person is signing in a fiduciary or
representative capacity, the nature of the capacity;
(3) expressly what is being waived or consented to; and
(4) if the waiver pertains to compensation, language
declaring that the waiving party has actual knowledge of the
amount and manner of determining the compensation and, in
addition, either:
(A) that the party has agreed to the amount and
manner of determining that compensation and waives any objection
to payment; or
(B) that the party has the right to petition the
court to determine the compensation and waives that right.
(c) Filing. The waiver or consent shall be filed.
Committee Notes
One person who serves in two fiduciary capacities may not
waive or consent to the person’s acts without the approval of those
whom the person represents. This rule represents a rule
implementation of the procedure found in section 731.302, Florida
Statutes.
Rule History
1977 Revision: Extends right of waiver to natural guardian;
clarifies right to waive service of notice of administration.
1984 Revision: Extends waiver to disclosure of compensation
and distribution of assets. Committee notes revised.
1988 Revision: Procedure from section 731.302, Florida
Statutes, inserted as new (1)(f), and a new requirement that the
waiver be in writing has been added. Editorial changes. Committee
notes expanded. Citation form changes in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Addition of specific fee waiver disclosure
requirements found in § 733.6171(9), Florida Statutes, and
expanded to cover all fees. Committee notes revised.
2003 Revision: Committee notes revised.
2006 Revision: Rule extensively amended to remove references
to interested persons’ right to waive or consent, which is governed
by section 731.302, Florida Statutes, and to address manner of
execution and contents of waiver. Committee notes revised.
Statutory References
§ 731.302, Fla. Stat. Waiver and consent by interested person.
§ 731.303, Fla. Stat. Representation.
§ 733.6171, Fla. Stat. Compensation of attorney for the
personal representative.
PART II — PROBATE
RULE 5.200 cases. PETITION FOR ADMINISTRATION
The petition for administration shall be verified by the
petitioner and shall contain:
(a) a statement of the interest of the petitioner, the
petitioner’s name and address, and the name and office address of
the petitioner’s attorney;
(b) the name and last known address of the decedent, last 4
digits of the decedent’s social security number, date and place of
death of the decedent, and state and county of the decedent’s
domicile;
(c) so far as is known, the names and addresses of the
surviving spouse, if any, the beneficiaries and their relationship to
the decedent and the year of birth of any beneficiaries who are
minors;
(d) a statement showing venue;
(e) the priority, under section 733.301, Florida Statutes, of
the person whose appointment as the personal representative is
sought, whether or not any other person has equal or higher
preference, and if so, their name and whether they will be served
with formal notice, and a statement that the person is qualified to
serve under the laws of Florida;
(f) a statement whether domiciliary or principal proceedings
are pending in another state or country, if known, and the name
and address of the foreign personal representative and the court
issuing letters;
(g) a statement of the approximate value and nature of the
assets;
(h) in an intestate estate, a statement that after the exercise
of reasonable diligence the petitioner is unaware of any unrevoked
wills or codicils, or if the petitioner is aware of any unrevoked wills
or codicils, a statement why the wills or codicils are not being
probated;
(i) in a testate estate, a statement identifying all unrevoked
wills and codicils being presented for probate, and a statement that
the petitioner is unaware of any other unrevoked wills or codicils or,
if the petitioner is aware of any other unrevoked wills or codicils, a
statement why the other wills or codicils are not being probated;
(j) in a testate estate, a statement that the original of the
decedent’s last will is in the possession of the court or accompanies
the petition, or that an authenticated copy of a will deposited with
or probated in another jurisdiction or that an authenticated copy of
a notarial will, the original of which is in the possession of a foreign
notary, accompanies the petition; and
(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) whether the person has been convicted of a felony;
(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;
(4) that the person is 18 years of age or older; and
(5) whether the person is a resident of Florida and, if
not a resident, a statement of the person’s relationship to the
decedent in accordance with section 733.304, Florida Statutes.
Committee Notes
Rule History
1977 Revision: Addition to (b)(5) to require an affirmative
statement that the person sought to be appointed as personal
representative is qualified to serve. Committee note expanded to
include additional statutory references.
Substantially the same as section 733.202, Florida Statutes,
and implementing sections 733.301 through 733.305, Florida
Statutes.
1988 Revision: Editorial changes. Committee notes revised.
1992 Revision: Addition of phrase in subdivision (b) to conform
to 1992 amendment to section 733.202(2)(b), Florida Statutes.
Reference to clerk ascertaining the amount of the filing fee deleted
in subdivision (g) because of repeal of sliding scale of filing fees. The
remaining language was deemed unnecessary. Editorial changes.
Committee notes revised. Citation form changes in committee notes.
2002 Revision: Addition of phrases in subdivision (j) to add
references to wills probated in Florida where the original is in the
possession of a foreign official. Editorial changes. Committee notes
revised.
2003 Revision: Committee notes revised.
2007 Revision: Committee notes revised.
2007 Revision: Editorial changes in (h) and (i).
2010 Revision: Editorial change in (e) to clarify reference to
Florida Probate Code.
2011 Revision: Subdivision (b) amended to limit listing of
decedent’s social security number to last four digits.
2012 Revision: Committee notes revised.
2014 Revision: Subdivision (c) amended to conform to Florida
Rule of General Practice and Judicial Administration 2.425.
Committee notes revised.
2019 Revision: Subdivision (e) amended to require a statement
identifying any other person who has equal or higher preference
than the petitioner for the appointment of a personal representative
under section 733.301, Florida Statutes. Subdivision (k) adopted to
require a statement of the specific facts that show the petitioner’s
qualifications to serve as personal representative under sections
733.303 and 733.304, Florida Statutes.
2020 Revision: Committee notes revised. Citation form
changes in committee notes.
2021 Revision: Subdivision (k) amended to require a statement
as to whether the personal representative seeking appointment has
been convicted of abuse, neglect, or exploitation of an elderly or
disabled adult.
Statutory References
§ 731.201(23), Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 732.522, Fla. Stat. Method and place of execution.
§ 732.526, Fla. Stat. Probate.
§ 733.202, Fla. Stat. Petition.
§ 733.301, Fla. Stat. Preference in appointment of personal
representative.
§ 733.302, Fla. Stat. Who may be appointed personal
representative.
§ 733.303, Fla. Stat. Persons not qualified.
§ 733.304, Fla. Stat. Nonresidents.
§ 733.305, Fla. Stat. Trust companies and other corporations
and associations.
§ 825.101, Fla. Stat. Definitions.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.201 Notice of petition for administration.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.201 cases. NOTICE OF PETITION FOR ADMINISTRATION
(a) Petitioner Entitled to Preference of Appointment.
Except as may otherwise be required by these rules or the Florida
Probate Code, no notice need be given of the petition for
administration or the issuance of letters when it appears that the
petitioner is entitled to a preference of appointment as personal
representative.
(b) Petitioner Not Entitled to Preference. Before letters
shall be issued to any person who is not entitled to preference,
formal notice must be served on all known persons qualified to act
as personal representative and entitled to preference equal to or
greater than the applicant, unless those entitled to preference waive
it in writing.
(c) Service of Petition by Formal Notice. If the petitioner
elects or is required to serve formal notice of the petition for
administration prior to the issuance of letters, a copy of the will
offered for probate must be attached to the notice.
Committee Notes
This rule represents a rule implementation of the procedure
formerly found in section 733.203(2), Florida Statutes, which was
repealed as procedural in 2001.
Rule History
1988 Revision: New rule.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
2003 Revision: Committee notes revised.
2010 Revision: Subdivision (c) added to require service of a
copy of the will offered for probate. This requirement was included
in section 733.2123, Florida Statutes, but was removed in 2010
because it was deemed to be a procedural requirement. Committee
notes revised. Editorial changes.
Statutory References
§ 731.301, Fla. Stat. Notice.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.2123 Fla. Stat. Adjudication before issuance of letters.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.200 Petition for administration.
RULE 5.205 cases. FILING EVIDENCE OF DEATH
(a) Requirements for Filing. A copy of an official record of
the death of a decedent shall be filed by the personal representative,
if any, or the petitioner in each of the following proceedings and at
the times specified:
(1) Administration of decedent’s estate: not later than 3
months following the date of the first publication of the notice to
creditors.
(2) Ancillary proceedings: not later than 3 months
following the date of first publication of notice to creditors.
(3) Summary administration: at any time prior to entry
of the order of summary administration.
(4) Disposition without administration: at the time of
filing the application for disposition without administration.
(5) Determination of beneficiaries: at any time prior to
entry of the final judgment determining beneficiaries.
(6) Determination of protected homestead: at any time
prior to entry of the final judgment determining protected
homestead status of real property.
(7) Probate of will without administration: at any time
prior to entry of the order admitting will to probate.
(b) Waiver. On verified petition by the personal
representative, if any, or the petitioner the court may enter an order
dispensing with this rule, without notice or hearing.
(c) Authority to Require Filing. The court may, without
notice or hearing, enter an order requiring the personal
representative, if any, or the petitioner to file a copy of an official
record of death at any time during the proceedings.
Committee Notes
A short form certificate of death, which does not disclose the
cause of death, should be filed.
Rule History
1980 Revision: This rule is intended to provide a uniform
procedure for filing an official record of death in any judicial or
statutory proceeding upon the death of a decedent. The court may,
upon ex parte application, waive compliance with this rule or
require filing at any stage in the proceedings.
1984 Revision: Captions and minor editorial changes.
Committee notes revised.
1988 Revision: Editorial and substantive changes. Adds (a)(8)
to require filing when will is admitted to probate without
administration of the estate or an order disposing of property.
Committee notes revised.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2002 Revision: Replaces “homestead” with “protected
homestead” in (a)(7) to conform to addition of term in section
731.201(29), Florida Statutes. Committee notes revised.
2003 Revision: Revises subdivision (a)(1) to change notice of
administration to notice to creditors. Deletes subdivision (a)(3)
referring to family administration, and renumbers subsequent
subdivisions. Committee notes revised.
2010 Revision: Committee notes revised.
Statutory References
§ 28.222(3)(g), Fla. Stat. Clerk to be county recorder.
§ 382.008(6), Fla. Stat. Death and fetal death registration.
§ 731.103, Fla. Stat. Evidence as to death or status.
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.
Rule References
Fla. Prob. R. 5.042(a) Time.
Fla. Prob. R. 5.171 Evidence of death.
Fla. Prob. R. 5.241 Notice to creditors.
RULE 5.210 cases. PROBATE OF WILLS WITHOUT
ADMINISTRATION
(a) Petition and Contents. A petition to admit a decedent’s
will to probate without administration shall be verified by the
petitioner and shall contain:
(1) a statement of the interest of the petitioner, the
petitioner’s name and address, and the name and office address of
the petitioner’s attorney;
(2) the name and last known address of the decedent,
last 4 digits of the decedent’s social security number, date and
place of death of the decedent, and state and county of the
decedent’s domicile;
(3) so far as is known, the names and addresses of the
surviving spouse, if any, the beneficiaries and their relationships to
the decedent, and the name and year of birth of any who are
minors;
(4) a statement showing venue;
(5) a statement whether domiciliary or principal
proceedings are pending in another state or country, if known, and
the name and address of the foreign personal representative and
the court issuing letters;
(6) a statement that there are no assets subject to
administration in Florida;
(7) a statement identifying all unrevoked wills and
codicils being presented for probate and a statement that the
petitioner is unaware of any other unrevoked wills or codicils or, if
the petitioner is aware of any other unrevoked wills or codicils, a
statement why the other wills or codicils are not being probated;
and
(8) a statement that the original of the decedent’s last
will is in the possession of the court or accompanies the petition, or
that an authenticated copy of a will deposited with or probated in
another jurisdiction or that an authenticated copy of a notarial will,
the original of which is in the possession of a foreign notary,
accompanies the petition.
(b) Service. The petitioner shall serve a copy of the petition
on those persons who would be entitled to service under rule 5.240.
(c) Objections. Objections to the validity of the will shall
follow the form and procedure set forth in these rules pertaining to
revocation of probate. Objections to the venue or jurisdiction of the
court shall follow the form and procedure set forth in the Florida
Rules of Civil Procedure.
(d) Order. An order admitting the will to probate shall
include a finding that the will has been executed as required by law.
Committee Notes
Examples illustrating when a will might be admitted to
probate are when an instrument (such as a will or trust agreement)
gives the decedent a power exercisable by will, such as the power to
appoint a successor trustee or a testamentary power of
appointment. In each instance, the will of the person holding the
power has no legal significance until admitted to probate. There
may be no assets, creditors’ issues, or other need for a probate
beyond admitting the will to establish the exercise or non-exercise
of such powers.
Rule History
1975 Revision: Proof of will may be taken by any Florida
circuit judge or clerk without issuance of commission.
1984 Revision: This rule has been completely revised to set
forth the procedure for proving all wills except lost or destroyed
wills and the title changed. The rule requires an oath attesting to
the statutory requirements for execution of wills and the will must
be proved 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 revised.
1988 Revision: Editorial and substantive changes. Change in
(a)(3) to clarify which law determines validity of a notarial will;
change in (a)(4) to clarify requirement that will of a Florida resident
must comply with Florida law; adds new subdivision (b) to set forth
required contents of petition for probate of will; moves former (b) to
(c). Committee notes expanded; citation form change in committee
notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Subdivision (a)(4) changed to allow
authenticated copies of wills to be admitted to probate if the original
is filed or deposited in another jurisdiction.
2002 Revision: Substantial revision to the rule setting forth
the requirements of a petition to admit a will to probate when
administration is not required. Self proof of wills is governed by the
Florida Statutes. Former subdivision (a)(4) amended and transferred
to new rule 5.215. Former subdivision (a)(5) amended and
transferred to new rule 5.216.
2003 Revision: Committee notes revised.
2007 Revision: Existing text redesignated as subdivision (a)
and editorial change made in (a)(7). New subdivisions (b) and (c)
added to provide for service of the petition and the procedure for
objections consistent with the procedures for probate of a will with
administration. Committee notes revised.
2010 Revision: Subdivision (b) amended to reflect that service
of the petition to admit a decedent’s will to probate without
administration shall be served on the persons who would be
entitled to service of the notice of administration in a formal
administration as set forth in rule 5.240. New subdivision (d) added
to provide that any order admitting the decedent’s will to probate
without administration contain a finding that the will was executed
as required by law. Committee notes revised.
2011 Revision: Subdivision (a)(2) amended to limit listing of
decedent’s social security number to last four digits.
2014 Revision: Subdivision (a)(3) amended to conform to Fla.
R. Gen. Prac. & Jud. Admin. 2.425. Committee notes revised.
Statutory References
§ 731.201, Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 732.502, Fla. Stat. Execution of wills.
§ 732.503, Fla. Stat. Self-proof of will.
§ 733.103, Fla. Stat. Effect of probate.
§ 733.201, Fla. Stat. Proof of wills.
§ 733.202, Fla. Stat. Petition.
§ 733.204, Fla. Stat. Probate of a will written in a foreign
language.
§ 733.205, Fla. Stat. Probate of notarial will.
§ 733.206, Fla. Stat. Probate of will of resident after foreign
probate.
§ 733.207, Fla. Stat. Establishment and probate of lost or
destroyed will.
§ 734.104, Fla. Stat. Foreign wills; admission to record; effect
on title.
Rule References
Fla. Prob. R. 5.015 General definitions.
Fla. Prob. R. 5.020 Pleadings, verification; motions.
Fla. Prob. R. 5.205(a)(7) Filing evidence of death.
Fla. Prob. R. 5.215 Authenticated copy of will.
Fla. Prob. R. 5.216 Will written in foreign language.
Fla. Prob. R. 5.230 Commission to prove will.
Fla. Prob. R. 5.240 Notice of administration.
Fla. Prob. R. 5.270 Revocation of probate.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.215 cases. AUTHENTICATED COPY OF WILL
An authenticated copy of a will may be admitted to probate if
the original could be admitted to probate in Florida.
Committee Notes
Rule History
2002 Revision: New rule, derived from former rule 5.210(a)(4).
2003 Revision: Committee notes revised.
Statutory References
§ 733.205, Fla. Stat. Probate of notarial will.
§ 733.206, Fla. Stat. Probate of will of resident after foreign
probate.
§ 734.102, Fla. Stat. Ancillary administration.
§ 734.1025, Fla. Stat. Nonresident decedent’s testate estate
with property not exceeding $50,000 in this state; determination of
claims.
§ 734.104, Fla. Stat. Foreign wills; admission to record; effect
on title.
Rule References
Fla. Prob. R. 5.200 Petition for administration.
Fla. Prob. R. 5.210 Probate of wills without administration.
Fla. Prob. R. 5.470 Ancillary administration.
Fla. Prob. R. 5.475 Ancillary administration, short form.
RULE 5.216 cases. WILL WRITTEN IN FOREIGN LANGUAGE
A will written in a foreign language being offered for probate
shall be accompanied by a true and complete English translation.
In the order admitting the foreign language will to probate, the
court shall establish the correct English translation. At any time
during administration, any interested person may have the
correctness of the translation redetermined after formal notice to all
other interested persons.
Committee Notes
Rule History
2002 Revision: New rule, derived from former rule 5.210(a)(5)
and section 733.204(2), Florida Statutes.
Statutory Reference
§ 733.204, Fla. Stat. Probate of a will written in a foreign
language.
RULE 5.230 cases. COMMISSION TO PROVE WILL
(a) Petition. On petition the court may appoint a
commissioner to take the oath of any person qualified to prove the
will under Florida law. The petition must set forth the date of the
will and the place where it was executed, if known; the names of the
witnesses and address of the witness whose oath is to be taken; and
the name, title, and address of the proposed commissioner.
(b) Commission. The commission must be directed to a
person who is authorized to administer an oath by the laws of
Florida, the United States of America, or the state or country where
the witness may be found, and it shall empower the commissioner
to take the oath of the witness to prove the will and shall direct the
commissioner to certify the oath and file the executed commission,
copy of the will, oath of the witness, and certificate of
commissioner. An oath of the commissioner is not required.
(c) Mailing or Delivery. The petitioner or the petitioner’s
attorney must cause the commission, together with a copy of the
will, the oath, and the certificate of commissioner, to be mailed or
delivered to the commissioner.
(d) Filing. The executed commission, copy of the will, oath of
the witness, and certificate of commissioner must be filed.
Committee Notes
Rule History
1975 Revision: Substantially the same as prior rule 5.130(a)
and (b) and carries forward prior procedures as to a matter upon
which Florida Probate Code is silent.
1984 Revision: This rule has been completely changed to set
forth the procedure for the issuance and return of a commission.
The rule 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.
The rule now provides that the petitioner or his attorney shall
forward the commission to the commissioner. The rule also
contemplates that a Florida notary may be appointed as
commissioner to take the proof of a witness outside the State of
Florida. Committee notes revised and expanded.
1988 Revision: Editorial and substantive changes. Change in
(a) to provide that the commissioner may take the oath of not only
the attesting witness to the will but also the oath of any other
person qualified to prove the will; change in (c) to permit copies
other than photographic copies to be furnished to the
commissioner, and to permit delivery of documents in a manner
other than by mailing; change in (d) to require the filing of
documents with the court. Committee notes revised. Citation form
changes in rule and committee notes.
1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2013 Revision: Subdivision (e) deleted because it duplicates
subdivision (d) in Rule 5.240. Committee notes revised. Editorial
changes to conform to the court’s guidelines for rules submissions
as set forth in AOSC06-14.
Statutory References
§ 92.50, Fla. Stat. Oaths, affidavits, and acknowledgments;
who may take or administer; requirements.
§ 733.101, Fla. Stat. Venue of probate proceedings.
§ 733.201, Fla. Stat. Proof of wills.
§ 22 U.S.C. § 4215 Notarial acts, oaths, affirmations,
affidavits, and depositions; fees.
Rule References
Fla. Prob. R. 5.050 Transfer of proceedings.
Fla. R. Civ. P. 1.060 Transfers of actions.
RULE 5.235 cases. ISSUANCE OF LETTERS, BOND
(a) Appointment of Personal Representative. After the
petition for administration is filed and the will, if any, is admitted to
probate:
(1) the court shall appoint the person entitled and
qualified to be personal representative;
(2) the court shall determine the amount of any bond
required. The clerk may approve the bond in the amount
determined by the court; and
(3) any required oath or designation of, and acceptance
by, a resident agent shall be filed.
(b) Issuance of Letters. Upon compliance with all of the
foregoing, letters shall be issued to the personal representative.
(c) Bond. On petition by any interested person or on the
court’s own motion, the court may waive the requirement of filing a
bond, require a personal representative or curator to give bond,
increase or decrease the bond, or require additional surety.
Committee Notes
This rule represents a rule implementation of the procedure
formerly 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 effect of the statutes from which it was derived but has
been reformatted to conform with the structure of these rules. It is
not intended to create a new procedure or modify an existing
procedure.
Rule History
1988 Revision: New rule.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Mandate in subdivision (a)(2) prohibiting
charge of service fee by clerk deleted. Statutory references added.
2003 Revision: Committee notes revised.
2010 Revision: Committee notes revised.
Statutory References
§ 28.24(19), Fla. Stat. Service charges by clerk of the circuit
court.
§ 28.2401, Fla. Stat. Service charges in probate matters.
§ 733.402, Fla. Stat. Bond of fiduciary; when required; form.
§ 733.403, Fla. Stat. Amount of bond.
§ 733.405, Fla. Stat. Release of surety.
§ 733.501, Fla. Stat. Curators.
Rule References
Fla. Prob. R. 5.110 Address designation for personal
representative or guardian; designation of resident agent and
acceptance.
Fla. Prob. R. 5.122 Curators.
Fla. Prob. R. 5.320 Oath of personal representative.
RULE 5.240 cases. NOTICE OF ADMINISTRATION
(a) Service. The personal representative shall promptly serve
a copy of the notice of administration on the following persons who
are known to the personal representative and who were not
previously served under section 733.2123, Florida Statutes:
(1) the decedent’s surviving spouse;
(2) all beneficiaries;
(3) a trustee of any trust described in section
733.707(3), Florida Statutes, and each qualified beneficiary of the
trust as defined in section 736.0103(16), Florida Statutes, if each
trustee is also a personal representative of the estate; and
(4) persons who may be entitled to exempt property
in the manner provided for service of formal notice. The
personal representative may similarly serve a copy of the notice on
any devisee under another will or heirs or others who claim or may
claim an interest in the estate.
(b) Contents. The notice shall state:
(1) the name of the decedent, the file number of the
estate, the designation and address of the court in which the
proceedings are pending, whether the estate is testate or intestate,
and, if testate, the date of the will and any codicils;
(2) the name and address of the personal
representative and the name and address of the personal
representative’s attorney, and that the fiduciary lawyer-client
privilege in section 90.5021, Florida Statutes, applies with respect
to the personal representative and any attorney employed by the
personal representative;
(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
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
(6) that, under certain circumstances and by failing to
contest the will, the recipient of the notice of administration may be
waiving his or her right to contest the validity of a trust or other
writing incorporated by reference into a will.
(c) Copy of Will. Unless the court directs otherwise, the
personal representative of a testate estate must, upon written
request, furnish a copy of the will and all codicils admitted to
probate to any person on whom the notice of administration was
served.
(d) Objections. Objections to the validity of the will shall
follow the form and procedure set forth in these rules pertaining to
revocation of probate. Objections to the venue or jurisdiction of the
court shall follow the form and procedure set forth in the Florida
Rules of Civil Procedure.
(e) Waiver of Service. For the purpose of determining
deadlines established by reference to the date of service of a copy of
the notice of administration in cases in which service has been
waived, service on a person who has waived notice is deemed to
occur on the date the waiver is filed.
Committee Notes
Rule History
1977 Revision: Former subdivision (c) is deleted as being
substantive rather than procedural.
1984 Revision: Editorial changes; new requirement to file proof
of publication; new requirements as to form of objections to will and
qualifications of personal representative. Committee notes revised.
1988 Revision: The obligation to mail notice of administration
to all known or reasonably ascertainable creditors has been added
to comply with the dictates of Tulsa Professional Collection Services,
Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565
(1988).
This rule does not require sending notice of administration to
creditors in estates where the time for filing claims has expired
before the effective date of this rule. However, no opinion is offered
whether such claims are barred by the provisions of section
733.702, Florida Statutes.
Committee notes revised. Citation form changes in committee
notes.
1991 Revision: Subdivision (a) modified to make it consistent
with recent changes to sections 733.212 and 733.702, Florida
Statutes. Those statutes were amended to comply with the dictates
of Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478,
108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). For the same reason,
subdivision (e) was eliminated.
1992 Revision: Former subdivision (e) revised and reinstated
to emphasize need for personal representative to determine all
known or reasonably ascertainable creditors. Editorial changes;
committee notes revised; citation form changes in committee notes.
1996 Revision: Subdivision (a) amended to require service of
notice of administration on trustees of certain revocable trusts as
defined by Florida statute. Editorial changes.
2002 Revision: Procedures for notifying creditors are now
governed by new rule 5.241. Committee notes revised.
2003 Revision: Change in title of (a) to reflect elimination of
publication of notice. Committee notes revised.
2005 Revision: Subdivision (a)(3) amended to make it
consistent 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 file election to take elective share.
Committee notes revised.
2007 Revision: Subdivision (a)(3) amended to replace reference
to “beneficiary” with “qualified beneficiary” and to change reference
from former section 737.303(4)(b) to new section 736.0103(14),
which defines that term. Subdivision (b)(5) amended to delete the
reference to the surviving spouse filing the election as another
person can file the election on behalf of the surviving spouse. New
subdivision (e) added to provide a deadline for objection by a person
who waives service. Committee notes revised.
2011 Revision: Subdivision (b)(2) amended to conform to
amendment to section 732.212, Florida Statutes, relating to
attorney-client privilege for fiduciary and their attorneys. Editorial
changes to conform to the court’s guidelines for rules submissions
as set forth in Administrative Order AOSC06-14. Statutory
references to section 732.402, Florida Statutes, added. Committee
Notes revised.
2013 Revision: Updated statutory reference in subdivision
(a)(3). Committee notes revised.
2015 Revision: Subdivisions (b)(3) and (d) amended to conform
to amendments to section 733.212, Florida Statutes, relating to the
removal of the requirement to object to the qualifications of a
personal representative within this statutory framework due to
other statutory amendments. The 2011 Revision contains a
scrivener’s error and it should reference section 733.212, Florida
Statutes, as opposed to section 732.212, Florida Statutes.
2019 Revision: For clarity purposes, subdivisions (b)(2), (b)(3),
(b)(4), and (b)(5) amended for consistency with section 733.212,
Florida Statutes, relating to the contents of a notice of
administration. Subdivision (b)(5) amended to replace the term
“attorney-in-fact” with “agent” to reflect 2011 enactment of section
709.2102(1), Florida Statutes.
2020 Revisions: Subdivision (b)(6) was created to conform to
an amendment to section 733.212, Florida Statutes, that requires
the Notice of Administration include a notice of a potential waiver of
rights by failing to contest the will.
Statutory References
§ 709.2102(1), Fla. Stat. Definitions.
§ 731.201(23), Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 731.302, Fla. Stat. Waiver and consent by interested person.
§ 732.2135, Fla. Stat. Time of election; extensions; withdrawal.
§ 732.402, Fla. Stat. Exempt property.
§ 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and
undue influence.
§ 733.101, Fla. Stat. Venue of probate proceedings.
§ 733.109, Fla. Stat. Revocation of probate.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
§ 733.302, Fla. Stat. Who may be appointed personal
representative.
§ 733.303, Fla. Stat. Persons not qualified.
§ 733.305, Fla. Stat. Trust companies and other corporations
and associations.
§ 733.504, Fla. Stat. Removal of personal representative;
causes for removal.
§ 733.506, Fla. Stat. Proceedings for removal.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.050 Transfer of proceedings.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.270 Revocation of probate.
Fla. Prob. R. 5.440 Proceedings for removal.
Fla. R. Civ. P. 1.060 Transfers of actions.
RULE 5.2405 cases. SERVICE OF NOTICE OF ADMINISTRATION ON
PERSONAL REPRESENTATIVE
(a) Date Notice of Administration is Considered Served
on Person who is Personal Representative. Unless service of the
notice of administration is waived pursuant to Rule 5.240(e), when
a person who is entitled to service of the notice of administration
pursuant to Rule 5.240(a) is also a personal representative, the
notice of administration shall be deemed served upon the person on
the earliest of the following dates:
(1) the date on which the person acknowledges in
writing receipt of the notice of administration;
(2) the date on which the notice of administration is
first served on any other person entitled to service of the notice of
administration (or the first among multiple persons entitled to
service); or
(3) the date that is 30 days after the date letters of
administration are issued.
(b) Date Other Notices are Considered Served on Person
who is Personal Representative. When a person who is entitled to
service of notice under these rules or the Florida Probate Code
(other than the notice of administration) is also a personal
representative, any notice shall be deemed as having been served
on the personal representative on the earliest of the following dates:
(1) the date on which the person acknowledges in
writing receipt of the notice;
(2) the date on which the notice is required to be served
by the personal representative under these rules or the Florida
Probate Code; or,
(3) the date on which the notice is first served by the
personal representative on any other person entitled to service of
the same notice.
Committee Notes
This rule is intended to address situations in which the
personal representative is also an interested person in an estate,
but claims that he or she has not received the notice of
administration, despite the personal representative being required
to serve the notice. The receipt of the notice of administration can
trigger time limits for the person receiving the notice with regard to
certain rights, such as the right to claim an elective share.
Rule History
2013 Revision: New rule.
Statutory References
§ 731.201(23), Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 731.302, Fla. Stat. Waiver and consent by interested person.
§ 732.2135, Fla. Stat. Time of election; extensions; withdrawal.
§ 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and
undue influence.
§ 733.101, Fla. Stat. Venue of probate proceedings.
§ 733.109, Fla. Stat. Revocation of probate.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
§ 733.302, Fla. Stat. Who may be appointed personal
representative.
§ 733.303, Fla. Stat. Persons not qualified.
§ 733.305, Fla. Stat. Trust companies and other corporations
and associations.
§ 733.504, Fla. Stat. Removal of personal representative;
causes for removal.
§ 733.506, Fla. Stat. Proceedings for removal.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.050 Transfer of proceedings.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.270 Revocation of probate.
Fla. Prob. R. 5.440 Proceedings for removal of personal
representative.
Fla. R. Civ. P. 1.060 Transfers of actions.
RULE 5.241 cases. NOTICE TO CREDITORS
(a) Publication and Service. Unless creditors’ claims are
otherwise barred by law, the personal representative shall promptly
publish a notice to creditors and serve a copy of the notice on all
creditors of the decedent who are reasonably ascertainable and, if
required by law, on the Agency for Health Care Administration.
Service of the notice shall be either by informal notice, or in the
manner provided for service of formal notice at the option of the
personal representative. Service on one creditor by a chosen method
shall not preclude service on another creditor by another method.
(b) Contents. The notice to creditors shall contain the name
of the decedent, the file number of the estate, the designation and
address of the court, the name and address of the personal
representative and of the personal representative’s attorney, and
the date of first publication of the notice to creditors. The notice
shall require all creditors to file all claims against the estate with
the court, within the time provided by law.
(c) Method of Publication and Proof. Publication shall be
made as required by law. The personal representative shall file proof
of publication with the court within 45 days after the date of first
publication of the notice to creditors.
(d) Statement Regarding Creditors. Within 4 months after
the date of the first publication of notice to creditors, the personal
representative shall file a verified statement that diligent search has
been made to ascertain the name and address of each person
having a claim against the estate. The statement shall indicate the
name and address of each person at that time known to the
personal representative who has or may have a claim against the
estate and whether such person was served with the notice to
creditors or otherwise received actual notice of the information
contained in the notice to creditors; provided that the statement
need not include persons who have filed a timely claim or who were
included in the personal representative’s proof of claim.
(e) Service of Death Certificate. If service of the notice on
the Agency for Health Care Administration is required, it shall be
accompanied by a copy of the death certificate.
Committee Notes
It is the committee’s opinion that the failure to timely file the
proof of publication of the notice to creditors shall not affect time
limitations for filing claims or objections.
On April 19, 1988, the United States Supreme Court decided
Tulsa 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 proposition that a creditor may not be barred by the
usual publication if 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 notice. Less than actual
notice in these circumstances would deprive the creditor of due
process rights under the 14th Amendment to the U.S. Constitution.
Probably actual notice of the death (as in the case of a hospital
where the decedent died as a patient) without notice of the
institution of probate proceedings is not sufficient.
An elementary and fundamental requirement of due process in
any proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested
persons of the pendency of the proceeding and afford them an
opportunity to present their claims.
The steps to be taken by a personal representative in
conducting a diligent search for creditors depends, in large
measure, on how familiar the personal representative is with the
decedent’s affairs. Therefore, the committee believes it is
inappropriate to list particular steps to be taken in each estate,
since the circumstances will vary from case to case.
The statement required by this rule is not intended to be
jurisdictional but rather to provide evidence of satisfaction (or lack
thereof) of the due process requirements.
Rule History
2002 Revision: New rule to implement procedures consistent
with new section 733.2121, Florida Statutes.
2003 Revision: Committee notes revised.
2005 Revision: Subdivision (a) amended to clarify approved
methods of service on creditors. Committee notes revised.
2007 Revision: New subdivision (e) added to require service of
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),
Florida Statutes.
2019 Revision: Subdivision (e) amended to clarify that a copy
of a death certificate suffices.
Statutory References
ch. 50, Fla. Stat. Legal and official advertisements.
§ 731.301, Fla. Stat. Notice.
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.
§ 733.702, Fla. Stat. Limitations on presentation of claims.
§ 733.703, Fla. Stat. Form and manner of presenting claim.
§ 733.704, Fla. Stat. Amendment of claims.
§ 733.705, Fla. Stat. Payment of and objection to claims.
§ 733.708, Fla. Stat. Compromise.
Rule Reference
Fla. Prob. R. 5.490 Form and manner of presenting claim.
RULE 5.260 cases. CAVEAT; PROCEEDINGS
(a) Filing. Any creditor or interested person other than a
creditor may file a caveat with the court. The caveat of an interested
person, other than a creditor, may be filed before or after the death
of the person for whom the estate will be, or is being, administered.
The caveat of a creditor may be filed only after the person’s death.
(b) Contents. The caveat shall contain the name of the
person for whom the estate will be, or is being, administered, the
last 4 digits of the person’s social security number or year of birth,
if known, a statement of the interest of the caveator in the estate,
and the name and specific mailing address of the caveator.
(c) Resident Agent of Caveator; Service. If the caveator is
not a resident of Florida, the caveator must file a designation of the
name and specific mailing address and residence address of a
resident in the county where the caveat is filed as the caveator’s
agent for service of notice. The written acceptance by the person
appointed as resident agent must be filed with the designation or
included in the caveat. The designation and acceptance shall
constitute the consent of the caveator that service of notice upon
the designated resident agent shall bind the caveator. If the
caveator is represented by an attorney admitted to practice in
Florida who signs the caveat, it shall not be necessary to designate
a resident agent under this rule.
(d) Filing After Commencement. If at the time of the filing
of any caveat the decedent’s will has been admitted to probate or
letters of administration have been issued, the clerk must promptly
notify the caveator in writing of the date of issuance of letters and
the names and addresses of the personal representative and the
personal representative’s attorney.
(e) Creditor. When letters of administration issue after the
filing of a caveat by a creditor, the clerk must promptly notify the
caveator, in writing, advising the caveator of the date of issuance of
letters and the names and addresses of the personal representative
and the personal representative’s attorney, unless notice has
previously been served on the caveator. A copy of any notice given
by the clerk, together with a certificate of the mailing of the original
notice, must be filed in the estate proceedings.
(f) Other Interested Persons; Before Commencement.
After the filing of a caveat by an interested person other than a
creditor, the court must not admit a will of the decedent to probate
or appoint a personal representative without service of formal notice
on the caveator or the caveator’s designated agent. A caveator is not
required to be served with formal notice of its own petition for
administration.
Committee Notes
Caveat proceedings permit a decedent’s creditor or other
interested person to be notified when letters of administration are
issued. Thereafter, the caveator must take appropriate action to
protect the caveator’s interests.
This rule treats the creditor caveator differently from other
caveators.
An attorney admitted to practice in Florida who represents the
caveator may sign the caveat on behalf of the client.
Rule History
1977 Revision: Carried forward prior rule 5.150.
1984 Revision: Changes in (a), (b), and (d) are editorial.
Change in (c) eliminates resident agent requirement for Florida
residents and for nonresidents represented by a Florida attorney.
Service on the attorney binds caveator. Former (e) is now
subdivisions (e) and (f) and treats creditor caveator differently from
other interested persons. Change in (f) requires formal notice.
Committee notes revised.
1988 Revision: Committee notes revised. Citation form
changes in committee notes.
1992 Revision: Addition of language in subdivision (b) to
implement 1992 amendment to section 731.110(2), Florida
Statutes. Editorial changes. Citation form changes in committee
notes.
2003 Revision: Committee notes revised.
2010 Cycle Report Revision: Subdivision (c) amended to clarify
that a state agency filing a caveat need not designate an agent for
service of process, and to provide that a caveator who is not a
resident of the county where the caveat is filed must designate
either a resident of that county or an attorney licensed and residing
in Florida as the caveator’s agent. Editorial changes in (d) and (e).
Committee notes revised.
2010 Out-of-Cycle Report Revision: Subdivisions (a) and (b)
amended to conform with statutory changes. Subdivision (c)
amended to read as it existed prior to SC10-171 (35 FLW S482) due
to a subsequent legislative amendment (Chapter 2010-132, § 3,
Laws of Fla.). Editorial changes in (d), (e), and (f). Committee notes
revised.
2011 Revision: Subdivision (b) amended to replace language
removed in 2010 out-of-cycle revision, to replace term “decedent”
with “person for whom the estate will be, or is being, administered,”
and to limit listing of a social security number to the last four digits
and a date of birth to the year of birth.
2013 Revision: Subdivision (f) is updated to provide that a
caveator is not required to be served with formal notice of its own
petition for administration. Committee notes revised.
Statutory Reference
§ 731.110, Fla. Stat. Caveat; proceedings.
Rule Reference
Fla. Prob. R. 5.040(a) Notice.
RULE 5.270 cases. REVOCATION OF PROBATE
(a) Petition and Contents. A petition for revocation of
probate shall state the interest of the petitioner in the estate and
the facts constituting the grounds on which revocation is
demanded.
(b) Continued Administration. Pending the determination
of any issue for revocation of probate, the personal representative
shall proceed with the administration of the estate as if no
revocation proceeding had been commenced, except that no
distribution may be made to beneficiaries in contravention of the
rights of those who, but for the will, would be entitled to the
property disposed of.
Committee Notes
This rule represents a rule implementation of the procedure
found in section 733.109(2), Florida Statutes. It is not intended to
change the effect of the statute from which it was derived but has
been reformatted to conform with the structure of these rules. It is
not intended to create a new procedure or modify an existing
procedure. The committee believes that subsections (1) and (3) of
the statute are substantive, and have therefore not been included.
Further, this rule revises subdivision (b) of the prior similar rule to
track the language in the statute from which it was derived.
Rule History
1984 Revision: Extensive changes. Committee notes revised.
1988 Revision: Language of subdivision (b) of the rule
rewritten to track the statute more closely. Committee notes
expanded. Citation form change in committee notes.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
2003 Revision: Committee notes revised.
2005 Revision: “Beneficiaries” substituted for “devisees” in
subdivision (b) to conform language to section 733.109(2), Florida
Statutes.
2007 Revision: Committee notes revised.
Statutory References
§ 731.201(23), Fla. Stat. General definitions.
§ 732.5165, Fla. Stat. Effect of fraud, duress, mistake, and
undue influence.
§ 733.109, Fla. Stat. Revocation of probate.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.2123, Fla. Stat. Adjudication before issuance of letters.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.240 Notice of administration.
RULE 5.275 cases. BURDEN OF PROOF IN WILL CONTESTS
(a) In all proceedings contesting the validity of a will, the
burden shall be upon the proponent of the will to establish prima
facie its formal execution and attestation. Thereafter, the contestant
shall have the burden of establishing the grounds on which the
probate of the will is opposed or revocation sought.
(b) In any transaction or event to which the presumption of
undue influence applies, the presumption shifts the burden of proof
under sections 90.301–90.304, Florida Statutes.
Committee Notes
This rule implements the procedure found in section 733.107,
Florida Statutes, and the public policy against abuse of fiduciary or
confidential relationships.
Rule History
1988 Revision: New rule.
1992 Revision: Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2019 Revision: Adopts subdivision (b) and revises the
committee note to reflect that change.
Statutory References
§ 90.301, Fla. Stat. Presumption defined; inferences.
§ 90.302, Fla. Stat. Classification of rebuttable presumptions.
§ 90.303, Fla. Stat. Presumption affecting the burden of
producing evidence defined.
§ 90.304, Fla. Stat. Presumption affecting the burden of proof
defined.
§ 733.107, Fla. Stat. Burden of proof in contests; presumption
of undue influence.
RULE 5.310 cases. DISQUALIFICATION OF PERSONAL
REPRESENTATIVE; NOTIFICATION
Any time a personal representative who was qualified to act at
the time of appointment, knows that he or she would not be
qualified for appointment if application for appointment were then
made, the personal representative shall promptly file and serve on
all interested persons a notice stating:
(a) the reason(s) the personal representative would not be
qualified for appointment if application for appointment were then
made and the date on which the disqualifying event occurred; and
(b) that any interested person may file a petition to remove
the personal representative within 30 days after the date on which
such notice is served.
Committee Notes
Notification under this rule or section 733.3101(2), Florida
Statutes, does not automatically affect the authority of the personal
representative to act. The personal representative may resign or
interested persons or the court must act to remove the personal
representative.
Rule History
1975 Revision: This is same as old rule 5.220 and old section
732.47(3), Florida Statutes. The rule sets forth the imperative need
for timely action and the inherent responsibility of a fiduciary to
effect orderly succession. It further implies the inherent jurisdiction
of the court to control by judicial overview the succession.
1977 Revision: Citation form change in committee note.
1988 Revision: Committee notes revised. Citation form
changes in committee notes.
1992 Revision: Editorial changes to clarify rule. Committee
notes revised. Citation form changes in committee notes.
2002 Revision: Rule amended to implement procedures found
in section 733.3101, Florida Statutes. Committee notes revised.
2015 Revision: Rule amended to conform to amendment to
section 733.3101, Florida Statutes, which modifies the substance
and procedure for the disqualification of a personal representative.
Citation revised in committee notes. Committee notes revised.
Statutory References
§ 731.301, Fla. Stat. Notice.
§ 733.302, Fla. Stat. Who may be appointed personal
representative.
§ 733.303, Fla. Stat. Persons not qualified.
§ 733.3101, Fla. Stat. Personal representative not qualified.
§ 733.502, Fla. Stat. Resignation of personal representative.
§ 733.504, Fla. Stat. Removal of personal representative;
causes for removal.
§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.
§ 733.506, Fla. Stat. Proceedings for removal.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.430 Resignation of personal representative.
Fla. Prob. R. 5.440 Proceedings for removal.
RULE 5.320 cases. 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.
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.
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 . 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.
Affiant
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 __________
Type of Identification Produced ____________________________
Committee Notes
It is contemplated the oath may be signed concurrently with
the petition for administration and will be valid even if it predates
the order appointing the personal representative.
Rule History
1977 Revision: No change in rule. Change in committee note
to conform to statutory renumbering.
This rule establishes the uniform requirement for an oath of
faithful performance of fiduciary duties within the permissiveness of
section 733.401(1)(d), Florida Statutes. Should be taken together
with new rule 5.110, Resident Agent.
1988 Revision: Committee notes expanded. Citation form
changes in committee notes.
1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2019 Revision: Amended the rule to conform the oath to
statutory changes and to provide a proposed form for the oath of
personal representative. The oath is expanded to address the
qualifications and continuing duties of the personal representative.
2021 Revision: Form Oath amended to require a statement
that the personal representative has never been convicted of abuse,
neglect, or exploitation of an elderly or disabled adult and to revise
notary block for compliance with revised section 117.05, Florida
Statutes.
Statutory References
733.302, Fla. Stat. Who may be appointed personal
representative
733.303, Fla. Stat. Persons not qualified
733.304, Fla. Stat. Nonresidents
733.3101, Fla. Stat. Personal representative not qualified
825.101, Fla. Stat. Definitions
Rule References
Fla. Prob. R. 5.110 Address designation for personal
representative or guardian; designation of resident agent and
acceptance.
Fla. Prob. R. 5.235 Issuance of letters, bond.
RULE 5.330 cases. EXECUTION BY PERSONAL REPRESENTATIVE
Notwithstanding any other provisions of these rules, the
personal representative must sign the:
(a) inventory;
(b) accountings;
(c) petition for sale or confirmation of sale or encumbrance
of real or personal property;
(d) petition to continue business of decedent;
(e) petition to compromise or settle claim;
(f) petition to purchase on credit;
(g) petition for discharge; and
(h) resignation of personal representative.
Committee Notes
Rule History
1975 Revision: Where the jurisdiction of the court is invoked
voluntarily pursuant to section 733.603, Florida Statutes, or
otherwise, the rule requires that the personal representative have
actual knowledge of the more important steps and acts of
administration.
1977 Revision: Citation form change in committee note.
1988 Revision: Editorial changes. Citation form changes in
committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2010 revision: Committee notes revised.
2023 Revision: Subdivision (g) was edited to conform with Fla.
Prob. R. 5.400. Committee notes revised.
Statutory References
§ 733.502, Fla. Stat. Resignation of personal representative.
§ 733.604, Fla. Stat. Inventories and accountings; public
records exemptions.
§ 733.612(5), (22), (24), Fla. Stat. Transactions authorized for
the personal representative; exceptions.
§ 733.613, Fla. Stat. Personal representative’s right to sell real
property.
§ 733.708, Fla. Stat. Compromise.
§ 733.901, Fla. Stat. Final discharge.
Rule References
Fla. Prob. R. 5.340 Inventory.
Fla. Prob. R. 5.345 Accountings other than personal
representatives’ final accountings.
Fla. Prob. R. 5.346 Fiduciary accounting.
Fla. Prob. R. 5.350 Continuance of unincorporated business or
venture.
Fla. Prob. R. 5.370 Sales of real property where no power
conferred.
Fla. Prob. R. 5.400 Distribution and discharge.
Fla. Prob. R. 5.430 Resignation of personal representative.
RULE 5.340 cases. INVENTORY
(a) Contents and Filing. Unless an inventory has been
previously filed, the personal representative shall file an inventory
of the estate within 60 days after issuance of letters. The inventory
shall contain notice of the beneficiaries’ rights under subdivision (e),
list the estate with reasonable detail, and include for each listed
item (excluding real property appearing to be protected homestead
property) its estimated fair market value at the date of the
decedent’s death. Real property appearing to be protected
homestead property shall be listed and so designated.
(b) Extension. On petition the time for filing the inventory
may be extended by the court for cause shown without notice,
except that the personal representative shall serve copies of the
petition and order on the persons described in subdivision (d).
(c) Amendments. A supplementary or amended inventory
containing the information required by subdivision (a) as to each
affected item shall be filed and served by the personal
representative if:
(1) the personal representative learns of property not
included in the original inventory; or
(2) the personal representative learns that the
estimated value or description indicated in the original inventory for
any item is erroneous or misleading; or
(3) the personal representative determines the
estimated fair market value of an item whose value was described
as unknown in the original inventory.
(d) Service. The personal representative shall serve a copy of
the inventory and all supplemental and amended inventories on the
surviving spouse, each heir at law in an intestate estate, each
residuary beneficiary in a testate estate, and any other interested
person who may request it in writing.
(e) Information. On request in writing, the personal
representative shall provide the following:
(1) To the requesting residuary beneficiary or heir in an
intestate estate, a written explanation of how the inventory value for
an asset was determined or, if an appraisal was obtained, a copy of
the appraisal.
(2) To any other requesting beneficiary, a written
explanation of how the inventory value for each asset distributed or
proposed to be distributed to that beneficiary was determined or, if
an appraisal of that asset was obtained, a copy of the appraisal.
(f) Notice to Nonresiduary Beneficiaries. The personal
representative shall provide to each nonresiduary beneficiary
written notice of that beneficiary’s right to receive a written
explanation of how the inventory value for each asset distributed or
proposed to be distributed to that beneficiary was determined or a
copy of an appraisal, if any, of the asset.
(g) Elective Share Proceedings. Upon entry of an order
determining the surviving spouse’s entitlement to the elective share,
the personal representative shall file an inventory of the property
entering into the elective estate which shall identify the direct
recipient, if any, of that property. The personal representative shall
serve the inventory of the elective estate as provided in rule 5.360.
On request in writing, the personal representative shall provide an
interested person with a written explanation of how the inventory
value for an asset was determined and shall permit an interested
person to examine appraisals on which the inventory values are
based.
(h) Verification. All inventories shall be verified by the
personal representative.
Committee Notes
Inventories of the elective estate under subdivision (f) shall be
afforded the same confidentiality as probate inventories. §
733.604(1) and (2), Fla. Stat.
Inventories are still required to be filed. Once filed, however,
they are subject to the confidentiality provisions found in sections
733.604(1) and (2), Florida Statutes.
Constitutional protected homestead real property is not
necessarily a probatable asset. Disclosure on the inventory of real
property appearing to be constitutional protected homestead
property informs interested persons of the homestead issue.
Interested persons are entitled to reasonable information
about estate proceedings on proper request, including a copy of the
inventory, an opportunity to examine appraisals, and other
information pertinent to their interests in the estate. The rights of
beneficiaries to information contained in estate inventories is
limited by section 733.604(3), Florida Statutes. Inventories of the
elective estate under subdivision (f) affects a broader class of
interested persons who may obtain information regarding the assets
disclosed therein subject to control by the court and the
confidentiality afforded such inventories under section 733.604(1)
and (2).
Rule History
1980 Revision: Eliminated the time limit in requesting a copy
of the inventory by an interested person or in furnishing it by the
personal representative.
1984 (First) Revision: Extensive changes. Committee notes
revised.
1984 (Second) Revision: Subdivision (a) modified to clarify or
re-insert continued filing requirement for inventory.
1988 Revision: Editorial changes in (b) and (d). Committee
notes revised. Citation form changes in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2001 Revision: Subdivision (a) amended to conform to
statutory changes. Subdivision (d) amended to add requirement of
filing of proof of service. Subdivision (e) amended to clarify personal
representative’s duty to furnish explanation of how inventory values
were determined. Subdivision (f) added to require personal
representative to file inventory of property entering into elective
share. Subdivision (g) added to require verification of inventories.
Committee notes revised.
2002 Revision: Subdivision (e) amended to conform to section
733.604(3), Florida Statutes. Subdivision (f) amended to establish
procedures for interested persons to obtain information about
assets and values listed in the inventory of the elective estate.
Committee notes revised.
2003 Revision: Committee notes revised.
2010 Revision: Subdivisions (d) and (g) (former (f)) amended to
delete the requirement to serve a copy of the inventory on the
Department of Revenue. Subdivision (e) amended, and new (f)
created, to limit the kind of information available to nonresiduary
beneficiaries, and subsequent subdivisions relettered. Editorial
changes in (a), (e), and (g). Committee notes revised.
2012 Revision: The last sentence of subdivision (d) is deleted
to remove duplicative requirement of filing a proof of service for a
document which includes a certificate of service as provided in Fla.
R. Gen. Prac. & Jud. Admin. 2.516. If service of the inventory is by
service in the manner provided for service of formal notice, then
proof of service should be filed as provided in rule 5.040(a)(5).
Committee notes revised.
Constitutional Reference
Art. X, § 4, Fla. Const.
Statutory References
§ 732.401, Fla. Stat. Descent of homestead.
§ 732.4015, Fla. Stat. Devise of homestead.
§ 733.604, Fla. Stat. Inventories and accounting; public
records exemptions.
Rule References
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. Prob. R. 5.360 Elective share.
Fla. Prob. R. 5.405 Proceedings to determine homestead status
of real property.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.341 cases. ESTATE INFORMATION
On reasonable request in writing, the personal representative
shall provide an interested person with information about the estate
and its administration.
Committee Notes
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 Posner, 492 So. 2d 1093 (Fla. 3d DCA 1986).
Rule History
2002 Revision: New rule.
RULE 5.342 cases. INVENTORY OF SAFE-DEPOSIT BOX
(a) Filing. The personal representative shall file an inventory
of the contents of the decedent’s safe-deposit box within 10 days of
the initial opening of the box by the personal representative or the
personal representative’s attorney of record. The inventory shall
include a copy of the financial institution’s entry record for the box
from a date that is six months prior to the decedent’s date of death
to the date of the initial opening by the personal representative or
the personal representative’s attorney of record.
(b) Verification. Each person who was present at the initial
opening must verify the contents of the box by signing a copy of the
inventory under penalties of perjury.
(c) Service. The personal representative shall serve a copy of
the inventory on the surviving spouse, each heir at law in an
intestate estate, each residuary beneficiary in a testate estate, and
any other interested person who may request it in writing.
Committee Notes
Inventories and entry records, once filed, shall be afforded the
same confidentiality as probate inventories.
If a safe-deposit box is opened pursuant to section 655.935 of
the Florida Statutes, no written inventory of the box need be
prepared or filed.
Rule History
2003 Revision: New rule.
2012 Revision: The last sentence of subdivision (c) is deleted to
remove duplicative requirement of filing a proof of service for a
document which includes a certificate of service as provided in Fla.
R. Gen. Prac. & Jud. Admin. 2.516. In service of the inventory is by
service in the manner provided for service of formal notice, then
proof of service should be filed as provided in rule 5.040(a)(5).
Committee notes revised.
Statutory References
§ 655.935, Fla. Stat. Search procedure on death of lessee.
§ 655.936, Fla. Stat. Delivery of safe-deposit box contents or
property held in safekeeping to personal representative.
§ 733.6065, Fla. Stat. Opening safe-deposit box.
Rule References
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.340 Inventory.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.3425 cases. SEARCH OF SAFE DEPOSIT BOX
(a) Petition for Order Authorizing Search. The petition for
an order authorizing the search of a safe deposit box leased or co-
leased by a decedent must be verified and must contain:
(1) The petitioner’s name, address, and interest, if any,
in the estate;
(2) The decedent’s name, address, date and place of
death, and state and county of domicile;
(3) A description of the safe deposit box leased by the
decedent and, if known, the name of any co-lessee;
(4) The name and address of the institution where the
safe deposit box is located; and
(5) A statement that the petitioner believes that the
decedent may have left in the safe deposit box one or more of the
following:
(A) A will or codicil of the decedent, or a writing
described in section 732.515 of the Code;
(B) A deed to a burial plot;
(C) A writing giving burial instructions; or
(D) Insurance policies on the life of the decedent.
(b) Order. If the Court determines that the petitioner is
entitled to an order authorizing a search of the decedent’s safe
deposit box, it must enter an order
(1) authorizing the petitioner to open the safe deposit
box in the presence of an officer of the lessor and, if requested by
the petitioner, to remove and deliver
(A) to the court having probate jurisdiction in the
county where the lessor is located any writing purporting to be a
will or codicil of the decedent and any writing purporting to identify
devises of tangible property;
(B) to the petitioner, any writing purporting to be a
deed to a burial plot to give burial instructions; and
(C) to the beneficiary named therein, any
document purporting to be an insurance policy on the life of the
decedent.
(2) directing the officer of the lessor to make a complete
copy of any document removed and delivered pursuant to the court
order, together with a memorandum of delivery identifying the name
of the officer, the person to whom the document was delivered, and
the date of delivery, to be placed in the safe deposit box leased or
co-leased by the decedent.
Committee Notes
The search of the safe deposit box is not considered an initial
opening and is not subject to the inventory requirements of rule
5.342.
Rule History
2010 Revision: New rule.
Statutory References
§ 655.935, Fla. Stat. Search procedure on death of lessee.
RULE 5.345 cases. ACCOUNTINGS OTHER THAN PERSONAL
REPRESENTATIVES’ FINAL ACCOUNTINGS
(a) Applicability and Accounting Periods. This rule applies
to the interim accounting of any fiduciary of a probate estate, the
accounting of a personal representative who has resigned or been
removed, and the accounting of a curator upon the appointment of
a successor fiduciary. The fiduciary may elect to file an interim
accounting at any time, or the court may require an interim or
supplemental accounting. The ending date of the accounting period
for any accounting to which this rule applies shall be as follows:
(1) For an interim accounting, any date selected by the
fiduciary, including a fiscal or calendar year, or as may be
determined by the court.
(2) For the accounting of a personal representative who
has resigned or has been removed, the date the personal
representative’s letters are revoked.
(3) For a curator who has been replaced by a successor
fiduciary, the date of appointment of the successor fiduciary.
(b) Notice of Filing. Notice of filing and a copy of any
accounting to which this rule applies shall be served on all
interested persons. The notice shall state that objections to the
accounting must be filed within 30 days from the date of service of
notice.
(c) Objection. Any interested person may file an objection to
any accounting to which this rule applies within 30 days from the
date of service of notice on that person. Any objection not filed
within 30 days from the date of service shall be deemed abandoned.
An objection shall be in writing and shall state with particularity
the item or items to which the objection is directed and the grounds
upon which the objection is based.
(d) Service of Objections. The objecting party shall serve a
copy of the objection on the fiduciary filing the accounting and
other interested persons.
(e) Disposition of Objections and Approval of
Accountings. The court shall sustain or overrule any objection filed
as provided in this rule. If no objection is filed, any accounting to
which this rule applies shall be deemed approved 30 days from the
date of service of the accounting on interested persons.
(f) Substantiating Documents. On reasonable written
request, the fiduciary shall permit an interested person to examine
documents substantiating items in any accounting to which this
rule applies.
(g) Supplemental Accountings. The court, on its own
motion or on that of any interested person, may require a fiduciary
who has been replaced by a successor fiduciary to file a
supplemental accounting, the beginning date of which shall be the
ending date of the accounting as specified in subdivision (a) of this
rule and the ending date of which is the date of delivery of all of the
estate’s property to the successor fiduciary, or such other date as
the court may order.
(h) Verification. All accountings shall be verified by the
fiduciary filing the accounting.
Committee Notes
The personal representative is required to file a final
accounting when administration is complete, unless filing is waived
by interested persons. Additionally, a fiduciary of a probate estate
may elect, but is not required, to file interim accountings at any
time. An accounting is required for resigning or removed fiduciaries.
The filing, notice, objection, and approval procedure is similar to
that for final accounts.
Rule History
1977 Revision: Change in (a) to authorize selection of fiscal
year.
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
prior rule to require any person filing an objection to set forth the
basis of such objection.
1984 Revision: Extensive changes. Committee notes revised.
1988 Revision: Citation form change in committee notes.
1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.
2002 Revision: Implements procedures for interim accountings
and accountings by resigning or removed fiduciaries. Committee
notes revised.
2003 Revision: Committee notes revised.
2005 Revision: Verification requirement added as new (h).
Committee notes revised.
2016 Revision: Subdivision (f) revised to substitute
“documents” for “papers.”
Statutory References
§ 733.3101, Fla. Stat. Personal representative not qualified.
§ 733.501, Fla. Stat. Curators.
§ 733.5035, Fla. Stat. Surrender of assets after resignation.
§ 733.5036, Fla. Stat. Accounting and discharge following
resignation.
§ 733.508, Fla. Stat. Accounting and discharge of removed
personal representatives upon removal.
§ 733.509, Fla. Stat. Surrender of assets upon removal.
ch. 738, Fla. Stat. Principal and income.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.122 Curators.
Fla. Prob. R. 5.150 Order requiring accounting.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. Prob. R. 5.346 Fiduciary accounting.
Fla. Prob. R. 5.430 Resignation of personal representative.
Fla. Prob. R. 5.440 Proceedings for removal.
RULE 5.346 cases. FIDUCIARY ACCOUNTING
(a) Contents. A fiduciary accounting, other than a guardian
accounting, shall include:
(1) all cash and property transactions since the date of
the last accounting or, if none, from the commencement of
administration, and
(2) a schedule of assets at the end of the accounting
period.
(b) Accounting Standards. The following standards are
required for the accounting of all transactions occurring on or after
January 1, 1994:
(1) Accountings shall be stated in a manner that is
understandable to persons who are not familiar with practices and
terminology peculiar to the administration of estates and trusts.
(2) The accounting shall begin with a concise summary
of its purpose and content.
(3) The accounting shall contain sufficient information
to put interested persons on notice as to all significant transactions
affecting administration during the accounting period.
(4) The accounting shall contain 2 values in the
schedule of assets at the end of the accounting period, the asset
acquisition value or carrying value, and estimated current value.
(5) Gains and losses incurred during the accounting
period shall be shown separately in the same schedule.
(6) The accounting shall show significant transactions
that do not affect the amount for which the fiduciary is
accountable.
(c) Accounting Format. A model format for an accounting is
attached to this rule as Appendix A.
(d) Verification. All accountings shall be verified by the
fiduciary filing the accounting.
Committee Notes
This rule substantially adopts the Uniform Fiduciary
Accounting Principles and Model Formats adopted by the
Committee on National Fiduciary Accounting Standards of the
American Bar Association: Section of Real Property, Probate and
Trust Law, the American College of Probate Counsel, the American
Bankers Association: Trust Division, and other organizations.
Accountings shall also comply with the Florida principal and
income law, chapter 738, Florida Statutes.
Attached as Appendix B to this rule are an explanation and
commentary for each of the foregoing standards, which shall be
considered as a Committee Note to this rule.
Accountings that substantially conform to the model formats
are acceptable. The model accounting format included in Appendix
A is only a suggested form.
Rule History
1988 Revision: New rule.
1992 Revision: Editorial changes throughout. Rule changed to
require compliance with the Uniform Fiduciary Accounting
Principles and Model Formats for accounting of all transactions
occurring on or after January 1, 1994. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Committee notes revised.
1999 Revision: Committee notes revised to correct rule
reference and to reflect formatting changes in accounting formats.
2002 Revision: Subdivisions (a) and (b) amended to clarify
contents of accounting. Committee notes revised.
2003 Revision: Committee notes revised.
2005 Revision: Verification requirement added as new (d).
Committee notes revised.
2007 Revision: Committee notes revised.
2010 Revision: Committee notes revised.
2016 Revision: Subdivision (a) amended to clarify that this
rule does not apply to guardian accounting. Committee notes
revised.
Statutory References
§ 733.501, Fla. Stat. Curators.
§ 733.5036, Fla. Stat. Accounting and discharge following
resignation.
§ 733.508, Fla. Stat. Accounting and discharge of removed
personal representatives upon removal.
§ 733.602(1), Fla. Stat. General duties.
§ 733.612(18), Fla. Stat. Transactions authorized for the
personal representative; exceptions.
ch. 738, Fla. Stat. Principal and income.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.122 Curators.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. Prob. R. 5.345 Accountings other than personal
representatives’ final accountings.
Fla. Prob. R. 5.400 Distribution and discharge.
Fla. Prob. R. 5.430 Resignation of personal representative.
Fla. Prob. R. 5.440 Proceedings for removal.
APPENDIX A
IN THE CIRCUIT COURT FOR COUNTY,
FLORIDA
IN RE: ESTATE OF PROBATE DIVISION
File Number
Deceased. Division
ACCOUNTING OF PERSONAL
REPRESENTATIVE(S)
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
, .
Signed on ____________________, ______.
Attorney for Personal Representative: Personal
Representative:
Attorney
Name
Florida Bar No.
(address) (address)
Telephone: [Print or Type Names
Under All Signature
Lines]
IN THE CIRCUIT COURT FOR COUNTY,
FLORIDA
IN RE: ESTATE OF PROBATE DIVISION
File Number
Deceased. Division
ACCOUNTING OF PERSONAL
REPRESENTATIVE(S)
From: , , Through: ,
SUMMARY
Income Principal
Totals
I. Starting Balance
Assets per Inventory or on Hand at
Close of Last Accounting Period
II. Receipts
Schedule A:
III. Disbursements
Schedule B:
IV. Distributions
Schedule C:
V. Capital Transactions and Adjustments
Schedule D: Net Gain or (Loss) $
VI. Assets on Hand at Close of Accounting
Period
Schedule E: Cash and Other Assets
NOTE: Refer to Fla. Prob. R. 5.330(b), 5.345, 5.346, and 5.400.
Also see Fiduciary Accountings, Chapter 12 of Practice Under
Florida Probate Code (Fla. Bar CLE).
Entries on Summary are to be taken from totals on Schedules
A, B, C, D and E.
The Summary and Schedules A, B, C, D and E are to
constitute the full accounting. Every transaction occurring during
the accounting period should be reflected on the Schedules.
All purchases and sales, all adjustments to the inventory or
carrying value of any asset, and any other changes in the assets
(such as stock splits) should be described on Schedule D.
The amount in the “Total” column for Item VI must agree with
the total inventory or adjusted carrying value of all assets on hand
at the close of the accounting period on Schedule E.
ACCOUNTING OF PERSONAL REPRESENTATIVE,
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.
ACCOUNTING OF PERSONAL REPRESENTATIVE,
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.
ACCOUNTING OF PERSONAL REPRESENTATIVE,
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.
ACCOUNTING OF PERSONAL REPRESENTATIVE,
ESTATE OF
From: , , Through: ,
SCHEDULE D Capital Transactions and
Adjustments
(Does not include distributions. Distributions are shown on
Schedule C.)
Date Brief Description of Transactions Net Gain Net
Loss
TOTAL NET GAINS AND
LOSSES
NET GAIN OR (LOSS)
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.
ACCOUNTING OF PERSONAL REPRESENTATIVE,
ESTATE OF
From: , , Through: ,
SCHEDULE E Assets on Hand at Close of Accounting
Period
(Indicate where held and legal description, certificate numbers, or
other identification.)
Estimated Carrying
Current Value Value
ASSETS OTHER THAN CASH:
OTHER ASSETS TOTAL
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
accounting 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.
APPENDIX B
UNIFORM FIDUCIARY ACCOUNTING PRINCIPLES
I. ACCOUNTS SHOULD BE STATED IN A MANNER THAT IS
UNDERSTANDABLE BY PERSONS WHO ARE NOT FAMILIAR WITH
PRACTICES AND TERMINOLOGY PECULIAR TO THE
ADMINISTRATION OF ESTATES AND TRUSTS.
Commentary: In order for an account to fulfill its basic
function of communication, it is essential that it be stated in a
manner that recognizes that the interested parties are not usually
familiar with fiduciary accounts. It is neither practical nor desirable
to require that accounts be tailored to meet individual disabilities of
particular parties but any account should be capable of being
understood by a person of average intelligence, literate in English,
and familiar with basic financial terms who has read it with care
and attention.
Problems arising from terminology or style are usually a
reflection of the fact that people who become versed in a particular
form of practice tend to forget that terms which are familiar and
useful to them may convey nothing to someone else or may even be
affirmatively misleading. For example, the terms “debit” and “credit”
are generally incomprehensible to people with no knowledge of
bookkeeping and many people who are familiar with them in other
contexts would assume that in the context of fiduciary accounting,
the receipt of an item is a “credit” to the fund rather than a “debit”
to the fiduciary.
While the need for concise presentation makes a certain
amount of abbreviation both acceptable and necessary, uncommon
abbreviation of matters essential to an understanding of the
account should be avoided or explained.
No position is taken for or against the use of direct print-outs
from machine accounting systems. The quality of the accounts
produced by these systems varies widely in the extent to which they
can be 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 previously stored data would miss the essential point
by focusing attention upon the manner of preparation rather than
the product.
II. A FIDUCIARY ACCOUNT SHALL BEGIN WITH A CONCISE
SUMMARY OF ITS PURPOSE AND CONTENT.
Commentary: Very few people can be expected to pay much
attention to a document unless they have some understanding of its
general purpose and its significance to them. Even with such an
understanding, impressions derived from the first page or two will
often determine whether the rest is read. The use that is made of
these pages is therefore of particular significance.
The cover page should disclose the nature and function of the
account. While a complete explanation of the significance of the
account and the effect of its presentation upon the rights of the
parties is obviously impractical for inclusion at this point, there
should be at least a brief statement identifying the fiduciary and the
subject matter, noting the importance of examining the account and
giving an address where more information can be obtained.
It is assumed that the parties would also have enough
information from other sources to understand the nature of their
relationship to the fund (e.g., residuary legatee, life tenant,
remainderman), the function of the account, and the obligation of
the fiduciary to supply further relevant information upon request. It
is also assumed that notice will be given of any significant
procedural considerations such as limitation on the time within
which objections must be presented. This would normally be
provided by prior or contemporaneous memoranda,
correspondence, or discussions.
A summary of the account shall also be presented at the
outset. This summary, organized as a table of contents, shall
indicate the order of the details presented in the account and shall
show separate totals for the aggregate of the assets on hand at the
beginning of the accounting period; transactions during the period;
and the assets remaining on hand at the end of the period. Each
entry in the summary shall be supported by a schedule in the
account that provides the details on which the summary is based.
III. A FIDUCIARY ACCOUNT SHALL CONTAIN SUFFICIENT
INFORMATION TO PUT THE INTERESTED PARTIES ON NOTICE AS
TO ALL SIGNIFICANT TRANSACTIONS AFFECTING
ADMINISTRATION DURING THE ACCOUNTING PERIOD.
Commentary: The presentation of the information account
shall allow an interested party to follow the progress of the
fiduciary’s administration of assets during the accounting period.
An account is not complete if it does not itemize, or make
reference to, assets on hand at the beginning of the accounting
period.
Illustration:
3.1 The first account for a decedent’s estate or a trust may
detail the items received by the fiduciary and for which the fiduciary
is responsible. It may refer to the total amount of an inventory filed
elsewhere or assets described in a schedule attached to a trust
agreement.
Instead of retyping the complete list of assets in the opening
balance, the preparer may prefer to attach as an exhibit a copy of
the inventory, closing balance from the last account, etc., as
appropriate, or may refer to them if previously provided to the
interested parties who will receive it.
Transactions shall be described in sufficient detail to give
interested parties notice of their purpose and effect. It should be
recognized that too much detail may be counterproductive to
making the account understandable. In accounts covering long
periods or dealing with extensive assets, it is usually desirable to
consolidate information. For instance, where income from a number
of securities is being accounted for over a long period of time, a
statement of the total dividends received on each security with
appropriate indication of changes in the number of shares held will
be more readily understandable and easier to check for
completeness than a chronological listing of all dividends received.
Although detail should generally be avoided for routine
transactions, it will often be necessary to proper understanding of
an event that is somewhat out of the ordinary.
Illustrations:
3.2 Extraordinary appraisal costs should be shown separately
and explained.
3.3 Interest and penalties in connection with late filing of tax
returns should be shown separately and explained.
3.4 An extraordinary allocation between principal and income
such as apportionment of proceeds of property acquired on
foreclosure should be separately stated and explained.
3.5 Computation of a formula marital deduction gift involving
non-probate assets should be explained.
IV. A FIDUCIARY ACCOUNT SHALL CONTAIN TWO VALUES, THE
ASSET ACQUISITION VALUE OR CARRYING VALUE, AND
CURRENT VALUE.
Commentary: In order for transactions to be reported on a
consistent basis, an appropriate carrying value for assets must be
chosen and employed consistently.
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 a value is not precisely determinable, the figure used
should reflect a thoughtful decision by the fiduciary. For assets
owned by a decedent, inventory values or estate tax values —
generally reflective of date of death — would be appropriate. Assets
received in kind by a trustee from a settlor of an inter vivos trust
should be carried at their value at the time of receipt. For assets
purchased during the administration of the fund, cost would
normally be used. Use of Federal income tax basis for carrying
value is acceptable when basis is reasonably representative of real
values at the time of acquisition. Use of tax basis as a carrying
value under other circumstances could be affirmatively misleading
to beneficiaries and therefore is not appropriate.
In the Model Account, carrying value is referred to as
“fiduciary acquisition value.” The Model Account establishes the
initial carrying value of assets as their value at date of death for
inventoried assets, date of receipt for subsequent receipts, and cost
for investments.
Carrying value would not normally be adjusted for
depreciation.
Except for adjustments that occur normally under the
accounting system in use, carrying values should generally be
continued unchanged through successive accounts and assets
should not be arbitrarily “written up” or “written down.” In some
circumstances, however, with proper disclosure and explanation,
carrying value may be adjusted.
Illustrations:
4.1 Carrying values based on date of death may be adjusted to
reflect changes on audit of estate or inheritance tax returns.
4.2 Where appropriate under applicable local law, a successor
fiduciary may adjust the carrying value of assets to reflect values at
the start of that fiduciary’s administration.
4.3 Assets received in kind in satisfaction of a pecuniary
legacy should be carried at the value used for purposes of
distribution.
Though essential for accounting purposes, carrying values are
commonly misunderstood by laypersons as being a representation
of actual values. To avoid this, the account should include both
current values and carrying values.
The value of assets at the beginning and ending of each
accounting period is necessary information for the evaluation of
investment performance. Therefore, the account should show, or
make reference to, current values at the start of the period for all
assets whose carrying values were established in a prior accounting
period.
Illustrations:
4.4 The opening balance of the first account of a testamentary
trustee will usually contain assets received in kind from the
executor. Unless the carrying value was written up at the time of
distribution (e.g., 4.2 or 4.3 supra) these assets will be carried at a
value established during the executor’s administration. The current
value at the beginning of the accounting period should also be
shown.
4.5 An executor’s first account will normally carry assets at
inventory (date of death) values or costs. No separate listing of
current values at the beginning of the accounting period is
necessary.
Current values should also be shown for all assets on hand at
the close of the accounting period. The date on which current
values are determined shall be stated and shall be the last day of
the accounting period, or a date as close thereto as reasonably
possible.
Current values should be shown in a column parallel to the
column of carrying values. Both columns should be totalled.
In determining current values for assets for which there is no
readily ascertainable current value, the source of the value stated in
the account shall be explained. The fiduciary shall make a good
faith effort to determine realistic values but should not be expected
to incur expenses for appraisals or similar costs when there is no
reason to expect that the resulting information will be of practical
consequence to the administration of the estate or the protection of
the interests of the parties.
Illustrations:
4.6 When an asset is held under circumstances that make it
clear that it will not be sold (e.g., a residence held for use of a
beneficiary) the fiduciary’s estimate of value would be acceptable in
lieu of an appraisal.
4.7 Considerations such as a pending tax audit or offer of the
property for sale may indicate the advisability of not publishing the
fiduciary’s best estimate of value. In such circumstances, a
statement that value was fixed by some method such as “per
company books,” “formula under buy-sell agreement,” or “300% of
assessed value” would be acceptable, but the fiduciary would be
expected to provide further information to interested parties upon
request.
V. GAINS AND LOSSES INCURRED DURING THE ACCOUNTING
PERIOD SHALL BE SHOWN SEPARATELY IN THE SAME
SCHEDULE.
Commentary: Each transaction involving the sale or other
disposition of securities during the accounting period shall be
shown as a separate item in one combined schedule of the account
indicating the transaction, date, explanation, and any gain or loss.
Although gains and losses from the sale of securities can be
shown separately in accounts, the preferred method of presentation
is to present this information in a single schedule. Such a
presentation provides the most meaningful description of
investment performance and will tend to clarify relationships
between gains and losses that are deliberately realized at the same
time.
VI. THE ACCOUNT SHALL SHOW SIGNIFICANT TRANS¬ACTIONS
THAT DO NOT AFFECT THE AMOUNT FOR WHICH THE
FIDUCIARY IS ACCOUNTABLE.
Commentary: Transactions such as the purchase of an
investment, receipt of a stock split, or change of a corporate name
do not alter the total fund for which a fiduciary is accountable but
must be shown in order to permit analysis and an understanding of
the administration of the fund. These can be best shown in
information schedules.
One schedule should list all investments made during the
accounting period. It should include those subsequently sold as
well as those 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.
A second schedule (entitled “Changes in Investment Holdings”
in the Model Account) should show all transactions affecting a
particular security holding, such as purchase of additional shares,
partial sales, stock splits, change of corporate name, divestment
distributions, etc. This schedule, similar to a ledger account for
each holding, will reconcile opening and closing entries for
particular holdings, explain changes in carrying value, and avoid
extensive searches through the account for information scattered
among other schedules.
RULE 5.350 cases. CONTINUANCE OF UNINCORPORATED BUSINESS
OR VENTURE
(a) Separate Accounts and Reports. In the conduct of an
unincorporated business or venture, the personal representative
shall keep separate, full, and accurate accounts of all receipts and
expenditures and make reports as the court may require.
(b) Petition. If the personal representative determines it to
be in the best interest of the estate to continue an unincorporated
business or venture beyond the time authorized by statute or will,
the personal representative shall file a verified petition which shall
include:
(1) a statement of the nature of that business or
venture;
(2) a schedule of specific assets and liabilities;
(3) the reasons for continuation;
(4) the proposed form and times of accounting for that
business or venture;
(5) the period for which the continuation is requested;
and
(6) any other information pertinent to the petition.
(c) Order. If the continuation is authorized, the order shall
state:
(1) the period for which that business or venture is to
continue;
(2) the particular powers of the personal representative
in the continuation of that business or venture; and
(3) the form and frequency of accounting by that
business or venture.
(d) Petition by Interested Person. Any interested person, at
any time, may petition the court for an order regarding the
operation of, accounting for, or termination of an unincorporated
business or venture, and the court shall enter an order thereon.
Committee Notes
Rule History
1975 Revision: New rule. § 733.612, Fla. Stat.
1984 Revision: Extensive changes in rule and title. Clarifies
procedural steps to be taken by a personal representative who
determines it to be in the best interest of an estate to continue any
unincorporated business beyond the time authorized by statute.
Information required to be filed in a verified petition is specified,
and normal information to be included in a court order is listed.
Other pertinent information under (b)(6) may include provisions for
insurance of business or venture, proposed professionals to be used
in connection with such activities, how the business or venture
shall be managed, the person or persons proposed for managerial
positions, a list of all other employees, agents, or independent
contractors employed by or affiliated with the business or venture,
and proposed compensation for all such management personnel,
agents, employees, and independent contractors. Committee notes
revised and expanded.
1988 Revision: Editorial change in caption of (b). Committee
notes revised. Citation form changes in committee notes.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
2012 Revision: Committee notes revised.
Statutory Reference
§ 733.612(22), Fla. Stat. Transactions authorized for the
personal representative; exceptions.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.355 cases. PROCEEDINGS FOR REVIEW OF EMPLOYMENT
OF AGENTS AND COMPENSATION OF PERSONAL
REPRESENTATIVES AND ESTATE EMPLOYEES
After notice to all interested persons and upon petition of an
interested person bearing all or a part of the impact of the payment
of compensation to the personal representative or any person
employed by the personal representative, the propriety of the
employment and the reasonableness of the compensation or
payment may be reviewed by the court. The petition shall state the
grounds on which it is based. The burden of proving the propriety of
the employment and the reasonableness of the compensation shall
be upon the personal representative and the person employed by
the personal representative. Any person who is determined to have
received excessive compensation from an estate may be ordered to
make appropriate refunds.
Committee Notes
This rule represents a rule implementation of the procedure
formerly found in section 733.6175, Florida Statutes. It is not
intended to change the effect of the statute from which it was
derived but has been reformatted to conform with the structure of
these rules. It is not intended to create a new procedure or modify
an existing procedure.
Rule History
1988 Revision: New rule.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Committee notes revised.
2003 Revision: Committee notes revised.
2007 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
Statutory References
§ 731.201(23), Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 733.612(19), Fla. Stat. Transactions authorized for the
personal representative; exceptions.
§ 733.617, Fla. Stat. Compensation of personal representative.
§ 733.6171, Fla. Stat. Compensation of attorney for the
personal representative.
§ 733.6175, Fla. Stat. Proceedings for review of employment of
agents and compensation of personal representatives and
employees of estate.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.360 cases. ELECTIVE SHARE
(a) Election. An election to take the elective share may be
filed by the surviving spouse, or on behalf of the surviving spouse
by an agent or guardian of the property of the surviving spouse.
(1) Election by Surviving Spouse. An electing surviving
spouse must file the election within the time required by law and
promptly serve a copy of the election on the personal representative
in the manner provided for service of formal notice.
(2) Election by Agent or Guardian of the Property of
Surviving Spouse.
(A) Petition for Approval. Before filing the election,
the agent or guardian of the property of the surviving spouse must
petition the court having jurisdiction of the probate proceeding for
approval to make the election. The petition for approval must allege
the authority to act on behalf of the surviving spouse and facts
supporting the election.
(B) Notice of Petition. Upon receipt of the petition,
the personal representative must promptly serve a copy of the
petition by formal notice on all interested persons.
(C) Order Authorizing Election. If the election is
approved, the order must include a finding that the election is in
the best interests of the surviving spouse during the spouse’s
probable lifetime.
(D) Filing the Election. Upon entry of an order
authorizing the filing of an election, the agent or guardian of the
property must file the election within the later of the time provided
by law or 30 days from service of the order and promptly serve a
copy of the election on the personal representative in the manner
provided for service of formal notice.
(b) Procedure for Election.
(1) Extension. Within the period provided by law to
make the election, the surviving spouse or an agent or guardian of
the property of the surviving spouse may petition the court for an
extension of time for making an election or for approval to make the
election. After notice and hearing the court for good cause shown
may extend the time for election. If the court grants the petition for
an extension, the election must be filed within the time allowed by
the extension.
(2) Withdrawal of Election. The surviving spouse, an
agent, a guardian of the property of the surviving spouse, or the
personal representative of the surviving spouse’s estate may
withdraw the election within the time provided by law.
(3) Service of Notice. Upon receipt of an election the
personal representative must serve a notice of election within 20
days following service of the election, together with a copy of the
election, on all interested persons in the manner provided for
service of formal notice. The notice of election must indicate the
names and addresses of the attorneys for the surviving spouse and
the personal representative and must state that:
(A) persons receiving a notice of election may be
required to contribute toward the satisfaction of the elective share;
(B) objections to the election must be served
within 20 days after service of the copy of the notice of election; and
(C) if no objection to the election is timely served,
an order determining the surviving spouse’s entitlement to the
elective share may be granted without further notice.
(4) Objection to Election. Within 20 days after service of
the notice of election, an interested person may serve an objection
to the election which must state with particularity the grounds on
which the objection is based. The objecting party must serve copies
of the objection on the surviving spouse and the personal
representative. If an objection is served, the personal representative
must promptly serve a copy of the objection on all other interested
persons who have not previously been served with a copy of the
objection.
(c) Determination of Entitlement.
(1) No Objection Served. If no objection to the election is
timely served, the court must enter an order determining the
spouse’s entitlement to the elective share.
(2) Objection Served. If an objection to the election is
timely served, the court must determine the surviving spouse’s
entitlement to the elective share after notice and hearing.
(d) Procedure to Determine Amount of Elective Share
and Contribution.
(1) Petition by Personal Representative. After entry of
the order determining the surviving spouse’s entitlement to the
elective share, the personal representative must file and serve a
petition to determine the amount of the elective share. The petition
must:
(A) give the name and address of each direct
recipient known to the personal representative;
(B) describe the proposed distribution of assets to
satisfy the elective share, and the time and manner of distribution;
and
(C) identify those direct recipients, if any, from
whom a specified contribution will be required and state the
amount of contribution sought from each.
(2) Service of Inventory. The inventory of the elective
estate required by rule 5.340, together with the petition, must be
served within 60 days after entry of the order determining
entitlement to the elective share on all interested persons in the
manner provided for service of formal notice.
(3) Petition by Spouse. If the personal representative
does not file the petition to determine the amount of the elective
share within 90 days from rendition of the order of entitlement, the
electing spouse or the agent or the guardian of the property or
personal representative of the electing spouse may file the petition
specifying as particularly as is known the value of the elective
share.
(4) Objection to Amount of Elective Share. Within 20
days after service of the petition to determine the amount of the
elective share, an interested person may serve an objection to the
amount of or distribution of assets to satisfy the elective share. The
objection must state with particularity the grounds on which the
objection is based. The objecting party must serve copies of the
objection on the surviving spouse and the personal representative.
If an objection is served, the personal representative must promptly
serve a copy of the objection on all interested persons who have not
previously been served.
(5) Determination of Amount of Elective Share and
Contribution.
(A) No Objection Served. If no objection is timely
served to the petition to determine the amount of the elective share,
the court must enter an order on the petition.
(B) Objection Served. If an objection is timely
served to the petition to determine the amount of the elective share,
the court must determine the amount of the elective share and
contribution after notice and hearing.
(6) Order Determining Amount of Elective Share and
Contribution. The order must:
(A) set forth the amount of the elective share;
(B) identify the assets to be distributed to the
surviving spouse in satisfaction of the elective share; and
(C) if contribution is necessary, specify the
amount of contribution for which each direct recipient is liable.
(e) Relief from Duty to Enforce Contribution. A petition to
relieve the personal representative from the duty to enforce
contribution must state the grounds on which it is based and notice
must be served on interested persons.
Committee Notes
The extensive rewrite of this rule in 2001 is intended to
conform it with and provide procedures to accommodate
amendments to Florida’s elective share statutes. Sections 732.201
et seq., Florida Statutes. Proceedings to determine entitlement to
elective share are not specific adversary proceedings under rule
5.025(a), but may be declared adversary at the option of the party.
Proceedings to determine the amount of elective share and
contribution are specific adversary proceedings under rule 5.025(a).
Requirements for service are intended to be consistent with the
requirements for formal notice. Rule 5.040. Service of process may
be required to obtain personal jurisdiction over direct recipients
who are not otherwise interested persons and who have not
voluntarily submitted themselves to the jurisdiction of the court.
Rule 5.040(a)(3)(C); chapter 48, Florida Statutes, Process and
Service of Process; chapter 49, Florida Statutes, Constructive
Service of Process. An inventory of the elective estate should be
afforded the same confidentiality as other estate inventories.
Section 733.604(1) and (2), Florida Statutes In fulfilling his or her
obligations under this rule, a personal representative is not
required to make impractical or extended searches for property
entering into the elective estate and the identities of direct
recipients. Preexisting rights to dower and curtesy formerly
addressed in subdivision (e) of this rule are now governed by new
rule 5.365.
Counsel’s attention is directed to Florida Ethics Opinion 76-
16, dated April 4, 1977, for guidance regarding the duties of an
attorney with respect to spousal rights.
Rule History
1984 Revision: Extensive changes. Clarifies information to be
included in a petition for elective share filed by a personal
representative and specifies information to be included in an order
determining elective share. Committee notes revised and expanded.
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
and determine right to entitlement, separate from the pre-existing
procedure of determination of amount and setting aside.
Subdivisions (c) and (d) represent rule implementation of procedure
in statute. Committee notes revised and expanded. Citation form
changes in committee notes.
1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.
2001 Revision: Entire rule rewritten. Committee notes revised.
2003 Revision: Committee notes revised.
2005 Revision: Subdivision (a) amended to require service in
the manner of formal notice of the notice of election. Subdivision
(b)(3) amended to provide time period for personal representative to
service notice of election on interested persons, and title revised.
Subdivision (d)(2) amended to provide time limit and service
requirement for elective estate inventory and petition for
determination of amount of elective share. Committee notes revised.
2010 Cycle Report Revision: Committee notes revised.
2010 Out-of-Cycle Report Revision: Subdivision (a)(2) amended
to conform to an amendment to section 732.2125, Florida Statutes.
2012 Revision: Committee notes revised.
2019 Revision: Subdivisions (a), (a)(2), (a)(2)(A), (a)(2)(D), (b)(1),
(b)(2), and (d)(3) amended to change “attorney-in-fact” to “agent” to
be consistent with chapter 709, Florida Statutes. Committee note
revised.
Statutory References
§ 732.201, Fla. Stat. Right to elective share.
§ 732.2025, Fla. Stat. Definitions.
§ 732.2035, Fla. Stat. Property entering into elective estate.
§ 732.2045, Fla. Stat. Exclusions and overlapping application.
§ 732.2055, Fla. Stat. Valuation of the elective estate.
§ 732.2065, Fla. Stat. Amount of the elective share.
§ 732.2075, Fla. Stat. Sources from which elective share
payable; abatement.
§ 732.2085, Fla. Stat. Liability of direct recipients and
beneficiaries.
§ 732.2095, Fla. Stat. Valuation of property used to satisfy
elective share.
§ 732.2125, Fla. Stat. Right of election; by whom exercisable.
§ 732.2135, Fla. Stat. Time of election; extensions; withdrawal.
§ 732.2145, Fla. Stat. Order of contribution; personal
representative’s duty to collect contribution.
§ 733.604, Fla. Stat. Inventories and accountings; public
records exemptions.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.340 Inventory.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. App. P. 9.020(h) Definitions.
RULE 5.365 cases. PETITION FOR DOWER
A widow may file an extraordinary petition for assignment of
dower. The petition shall be filed in the court of each county where
the widow’s husband had conveyed land in which the widow had
not relinquished her right of dower before October 1, 1973. Formal
notice shall be served on persons adversely affected. The
proceedings shall be as similar as possible to those formerly
existing for the ordinary assignment of dower.
Committee Notes
Rule History
2001 Revision: Derived from former rule 5.360(e).
Statutory Reference
§ 732.111, Fla. Stat. Dower and curtesy abolished.
RULE 5.370 cases. SALES OF REAL PROPERTY WHERE NO POWER
CONFERRED
(a) Petition. When authorization or confirmation of the sale
of real property is required, the personal representative shall file a
verified petition setting forth the reasons for the sale, a description
of the real property sold or proposed to be sold, and the price and
terms of the sale.
(b) Order. If the sale is authorized or confirmed, the order
shall describe the real property. An order authorizing a sale may
provide for the public or private sale of the real property described
therein, in parcels or as a whole. An order authorizing a private sale
shall specify the price and terms of the sale. An order authorizing a
public sale shall specify the type of notice of sale to be given by the
personal representative.
Committee Notes
Petitions under the rule are governed by section 733.610,
Florida Statutes, under which sales are voidable by interested
persons if there was a conflict of interest without full disclosure and
consent, unless the will or contract entered into by the decedent
authorized the transaction or it was approved by the court after
notice to all interested persons, and by section 733.609, Florida
Statutes, involving bad faith actions by the personal representative.
Note provision for attorneys’ fees.
Rule History
1984 Revision: Extensive changes. Notice of hearing on any
petition concerning sale of real property is required by statute
unless waived. The requirement to record a certified copy of the
order approving sale of real estate in each county where the real
property or any part thereof is situated has been deleted.
Committee notes revised and expanded.
1988 Revision: Committee notes expanded. Citation form
changes in committee notes.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
1996 Revision: Editorial changes.
2012 Revision: Committee notes revised.
Statutory References
§ 733.609, Fla. Stat. Improper exercise of power; breach of
fiduciary duty.
§ 733.610, Fla. Stat. Sale, encumbrance or transaction
involving conflict of interest.
§ 733.613(1), Fla. Stat. Personal representative’s right to sell
real property.
§ 733.810, Fla. Stat. Distribution in kind; valuation.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.380 cases. COMPULSORY PAYMENT OF DEVISES OR
DISTRIBUTIVE INTERESTS
(a) Petition. A beneficiary may file a petition setting forth
the facts that entitle the beneficiary to compel payment of devises or
distributive interests stating that the property will not be required
for the payment of debts, family allowance, spouse’s elective share,
estate and inheritance taxes, claims, charges, and expenses of
administration, or for providing funds for contribution or enforcing
equalization in case of advancements.
(b) Order. If the court finds that the property will not be
required for the purposes set forth in subdivision (a), it may enter
an order describing the property to be surrendered or delivered and
compelling the personal representative, prior to the final settlement
of the personal representative’s accounts, to do one or more of the
following:
(1) Pay all or any part of a devise in money.
(2) Deliver specific personal property within the
personal representative’s custody and control.
(3) Pay all or any part of a distributive interest in the
personal estate of a decedent.
(4) Surrender real property.
(c) Bond. Before the entry of an order of partial distribution,
the court may require the person entitled to distribution to give a
bond with sureties as prescribed by law.
Committee Notes
Rule History
1984 Revision: Extensive changes. Committee notes revised.
1988 Revision: Editorial change in caption of (a). Citation form
change in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
Statutory References
§ 731.301, Fla. Stat. Notice.
§ 733.802, Fla. Stat. Proceedings for compulsory payment of
devises or distributive interest.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.385 cases. DETERMINATION OF BENEFICIARIES AND
SHARES
(a) Beneficiaries and Shares. If a personal representative or
other interested person is in doubt or is unable to determine with
certainty beneficiaries entitled to an estate or the shares of any
beneficiary of an estate, or a beneficiary entitled to any asset or
interest in an estate, the personal representative or other interested
person may petition the court to determine beneficiaries.
(b) Petition. The petition shall include:
(1) the names, residences, and post office addresses of
all persons who may have an interest, except creditors of the
decedent, known to the petitioner or ascertainable by diligent
search and inquiry;
(2) a statement of the nature of the interest of each
person;
(3) designation of any person believed to be a minor or
incapacitated, and whether any person so designated is under legal
guardianship in this state;
(4) a statement as to whether petitioner believes that
there are, or may be, persons whose names are not known to
petitioner who have claims against, or interest in, the estate as
beneficiaries.
(c) Order. After formal notice and hearing, the court shall
enter an order determining the beneficiaries or the shares and
amounts they are entitled to receive, or both.
Committee Notes
This rule represents a rule implementation of the procedure
formerly found in section 733.105, Florida Statutes. It is not
intended to change the effect of the statute from which it was
derived but has been reformatted to conform with the structure of
these rules. It is not intended to create a new procedure or modify
an existing procedure.
Rule History
1988 Revision: New rule.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2002 Revision: Subdivision (c) added to implement procedure
formerly found in section 733.105(2), Florida Statutes. Committee
notes revised.
2003 Revision: Change in subdivision (c) to replace “heirs or
devisees” with “beneficiaries” to incorporate term used in section
733.105, Florida Statutes. Committee notes revised.
2007 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
2014 Revision: Fla. R. Gen. Prac. & Jud. Admin. 2.425(b)(6)
provides an exception for the full name of any minor “in any
document or order affecting minor’s ownership of real property.”
Committee notes revised.
Statutory References
ch. 49, Fla. Stat. Constructive service of process.
§ 731.201(2), (23), Fla. Stat. General definitions.
§ 731.301, Fla. Stat. Notice.
§ 733.105, Fla. Stat. Determination of beneficiaries.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.120 Administrator ad litem and guardian ad
litem.
Fla. Prob. R. 5.205(a)(5) Filing evidence of death.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.386 cases. ESCHEAT
(a) Escheat Proceeding. If it appears to the personal
representative that an estate may escheat or there is doubt about
the existence of any person entitled to the estate, the personal
representative shall institute a proceeding to determine
beneficiaries within 1 year after letters have been issued to the
personal representative, and notice shall be served on the
Department of Legal Affairs. If the personal representative fails to
institute the proceeding within the time fixed, it may be instituted
by the Department of Legal Affairs.
(b) Court’s Report. On or before January 15 of each year,
each court shall furnish to the Department of Legal Affairs a list of
all estates being administered in which no person appears to be
entitled to the property and the personal representative has not
instituted a proceeding for the determination of beneficiaries.
(c) Administration. Except as herein provided, escheated
estates shall be administered as other estates.
Committee Notes
This rule represents a rule implementation of the procedure
formerly found in section 732.107, Florida Statutes. It is not
intended to change the effect of the statute from which it was
derived but has been reformatted to conform with the structure of
these rules. It is not intended to create a new procedure or modify
an existing procedure.
Rule History
1988 Revision: New rule.
1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
Statutory References
§ 732.107, Fla. Stat. Escheat.
§ 733.105, Fla. Stat. Determination of beneficiaries.
§ 733.816, Fla. Stat. Disposition of unclaimed property held by
personal representatives.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.385 Determination of beneficiaries and shares.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.395 cases. NOTICE OF FEDERAL ESTATE TAX RETURN
When a federal estate tax return is filed, required to be filed, or
will be filed, the personal representative shall file a notice stating
the due date of the return. The notice shall be filed within 12
months from the date letters are issued and copies of the notice
shall be served on interested persons. Whenever the due date is
subsequently extended, similar notice shall be filed and served.
Committee Notes
The purpose of the rule is to require notification to the court
and all interested persons that the time for closing the estate is
extended when a federal estate tax return is required.
Rule History
1984 Revision: New rule.
1988 Revision: Citation form change in committee notes.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
2003 Revision: Committee notes revised.
2013 Revision: Clarifies the available option to file a federal tax
return even if one is not required by state or federal rule or law.
Rule Reference
Fla. Prob. R. 5.400 Distribution and discharge.
RULE 5.400 cases. DISTRIBUTION AND DISCHARGE
(a) Petition for Discharge; Final Accounting. A personal
representative who has completed administration except for
distribution shall file a final accounting and a petition for discharge
including a plan of distribution.
(b) Contents.
The petition for discharge shall contain a statement:
(1) that the personal representative has fully
administered the estate;
(2) that all claims which were presented have been
paid, settled, or otherwise disposed of;
(3) that the personal representative has paid or made
provision for taxes and expenses of administration;
(4) showing the amount of compensation paid or to be
paid to the personal representative, attorneys, accountants,
appraisers, or other agents employed by the personal representative
and the manner of determining that compensation;
(5) showing a plan of distribution which shall include:
(A) a schedule of all prior distributions;
(B) the property remaining in the hands of the
personal representative for distribution;
(C) a schedule describing the proposed
distribution of the remaining assets; and
(D) the amount of funds retained by the personal
representative to pay expenses that are incurred in the distribution
of the remaining assets and termination of the estate
administration;
(6) that any objections to the accounting, the
compensation paid or proposed to be paid, or the proposed
distribution of assets must be filed within 30 days from the date of
service of the last of the petition for discharge or final accounting;
and also that within 90 days after filing of the objection, a notice of
hearing thereon must be served or the objection is abandoned; and
(7) that objections, if any, shall be in writing and shall
state with particularity the item or items to which the objection is
directed and the grounds on which the objection is based.
(c) Closing Estate; Extension. The final accounting and
petition for discharge shall be filed and served on interested persons
within 12 months after issuance of letters for an estate not filing a
federal estate tax return, otherwise within 12 months from the date
the return is due, unless the time is extended by the court for cause
shown after notice to interested persons. The petition to extend time
shall state the status of the estate and the reason for the extension.
(d) Distribution. The personal representative shall promptly
distribute the estate property in accordance with the plan of
distribution, unless objections are filed as provided in these rules.
(e) Discharge. On receipt of evidence that the estate has
been fully administered and properly distributed, the court shall
enter an order discharging the personal representative and
releasing the surety on any bond.
Committee Notes
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
distinction is made in plans of distribution which distribute estate
property in kind among multiple residual beneficiaries
proportionate to their respective interests and those which include
equalizing adjustments in cash or property and which do not make
prorated distribution. If disclosure of the compensation or
disclosure of the manner of determining the compensation in the
petition for discharge is to be waived, the form of waiver must
conform to rule 5.180(b).
Rule History
1980 Revision: Change in prior (a)(6) to require that an
objection set forth the basis on which it is being made.
1984 Revision: This rule has been substantially revised.
Portions of the prior rule are now incorporated in rules 5.400 and
5.401. The committee has included the procedure for filing and
serving of objections to the final accounting, petition for discharge,
plan of distribution, or compensation in rule 5.401.
1988 Revision: Subdivision (b)(1) is deleted to avoid
duplication with rule 5.346. Subdivision (c) is amended to add the
12-month time specification of section 733.901(1), Florida Statutes.
Committee notes revised. Citation form changes in committee notes.
1992 Revision: Subdivision (b)(5)(D) is added. Editorial
changes. Committee notes revised. Citation form changes in
committee notes.
1996 Revision: Addition in (a)(4) of specific attorney fee
compensation disclosure requirements found in § 733.6171(9),
Florida Statutes, and expanded to cover all compensation.
Committee notes revised.
2003 Revision: Committee notes revised.
2005 Revision: Subdivision (f) deleted to avoid duplication with
rule 5.180.
2006 Revision: Committee notes revised.
2007 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
2013 Revision: Clarifies the available option to file a federal tax
return even if one is not required by state or federal rule or law.
Statutory References
§ 731.201(12), (23), Fla. Stat. General definitions.
§ 731.302, Fla. Stat. Waiver and consent by interested person.
§ 733.809, Fla. Stat. Right of retainer.
§ 733.810, Fla. Stat. Distribution in kind; valuation.
§ 733.811, Fla. Stat. Distribution; right or title of distributee.
§ 733.812, Fla. Stat. Improper distribution or payment;
liability of distributee or payee.
§ 733.901, Fla. Stat. Final discharge.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. Prob. R. 5.346 Fiduciary accounting.
Fla. Prob. R. 5.401 Objections to petition for discharge or final
accounting.
Fla. R. Gen. Prac. & Jud. Admin. 2.250(a)(1)(D) Time
standards for trial and appellate courts and reporting requirements.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.401 cases. OBJECTIONS TO PETITION FOR DISCHARGE OR
FINAL ACCOUNTING
(a) Objections. An interested person may object to the
petition for discharge or final accounting within 30 days after the
service of the later of the petition or final accounting on that
interested person.
(b) Contents. Written objections to the petition for discharge
or final accounting must state with particularity the items to which
the objections are directed and must state the grounds on which
the objections are based.
(c) Service. Copies of the objections shall be served by the
objector on the personal representative and interested persons not
later than 30 days after the last date on which the petition for
discharge or final accounting was served on the objector.
(d) Hearing on Objections. Any interested person may set a
hearing on the objections. Notice of the hearing shall be given to all
interested persons. If a notice of hearing on the objections is not
served within 90 days of filing of the objections, the objections shall
be deemed abandoned and the personal representative may make
distribution as set forth in the plan of distribution.
(e) Order on Objections. The court shall sustain or overrule
any objections to the petition for discharge and final accounting
and shall determine a plan of distribution.
(f) Discharge. On receipt of evidence that the estate has
been distributed according to the plan determined by the court and
the claims of creditors have been paid or otherwise disposed of, the
court shall enter an order discharging the personal representative
and releasing the surety on any bond.
Committee Notes
Rule History
1984 Revision: New rule. Objections to the petition for
discharge or final accounting were formerly under prior rule 5.400.
Clarifies procedure for objections.
1988 Revision: Editorial changes in (a). Committee notes
revised. Citation form changes in committee notes.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
1996 Revision: Subdivision (d) amended to clarify that 90-day
period pertains to service of hearing notice, not the actual hearing
date.
2003 Revision: Committee notes revised.
2007 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
Statutory References
§ 731.201(12), (23), Fla. Stat. General definitions.
§ 733.6175, Fla. Stat. Proceedings for review of employment of
agents and compensation of personal representatives and
employees of estate.
§ 733.901, Fla. Stat. Final discharge.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.400 Distribution and discharge.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.402 cases. NOTICE OF LIEN ON PROTECTED HOMESTEAD
(a) Filing. If the personal representative has recorded a
notice of lien on protected homestead, the personal representative
shall file a copy of the recorded notice in the probate proceeding.
(b) Contents. The notice of lien shall contain:
(1) the name and address of the personal
representative and the personal representative’s attorney;
(2) the legal description of the real property;
(3) to the extent known, the name and address of each
person appearing to have an interest in the property; and
(4) a statement that the personal representative has
expended or is obligated to expend funds to preserve, maintain,
insure, or protect the property and that the lien stands as security
for recovery of those expenditures and obligations incurred,
including fees and costs.
(c) Service. A copy of the recorded notice of lien shall be
served on interested persons in the manner provided for service of
formal notice.
Committee Notes
Rule History
2005 Revision: New rule.
2012 Revision: Committee notes revised.
Statutory References
§ 733.608, Fla. Stat. General power of the personal
representative.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.403 Proceedings to determine amount of lien on
protected homestead.
Fla. Prob. R. 5.404 Notice of taking possession of protected
homestead.
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 cases. PROCEEDINGS TO DETERMINE AMOUNT OF
LIEN ON PROTECTED HOMESTEAD
(a) Petition. A personal representative or interested person
may file a petition to determine the amount of any lien on protected
homestead.
(b) Contents. The petition shall be verified by the petitioner
and shall state:
(1) the name and address of the personal
representative and the personal representative’s attorney;
(2) the interest of the petitioner;
(3) the legal description of the real property;
(4) to the extent known, the name and address of each
person appearing to have an interest in the property; and
(5) to the extent known, the amounts paid or obligated
to be paid by the personal representative to preserve, maintain,
insure, or protect the protected homestead, including fees and
costs.
(c) Service. The petition shall be served on interested
persons by formal notice.
Committee Notes
Rule History
2005 Revision: New rule.
2012 Revision: Committee notes revised.
Statutory References
§ 733.608, Fla. Stat. General power of the personal
representative.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.402 Notice of lien on protected homestead.
Fla. Prob. R. 5.404 Notice of taking possession of protected
homestead.
Fla. Prob. R. 5.405 Proceedings to determine protected
homestead status of real property.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.404 cases. NOTICE OF TAKING POSSESSION OF
PROTECTED HOMESTEAD
(a) Filing of Notice. If a personal representative takes
possession of what appears reasonably to be protected homestead
pending a determination of its homestead status, the personal
representative shall file a notice of that act.
(b) Contents of Notice. The notice shall contain:
(1) a legal description of the property;
(2) a statement of the limited purpose for preserving,
insuring, and protecting it for the heirs or devisees pending a
determination of the homestead status;
(3) the name and address of the personal
representative and the personal representative’s attorney;
(4) if the personal representative is in possession when
the notice is filed, the date the personal representative took
possession.
(c) Service of Notice. The notice shall be served in the
manner provided for service of formal notice on interested persons
and on any person in actual possession of the property.
Committee Notes
Rule History
2002 Revision: New rule.
2005 Revision: Term “devisees” substituted for “beneficiaries”
in subdivision (b)(2) to clarify the status of persons interested in
protected homestead. Committee notes revised.
2013 Revision: Deletes subdivision (b)(4) because the required
information is not appropriate for a Notice of Taking possession, nor
does it comply with the Americans with Disabilities Act
requirements.
Statutory References
§ 732.401, Fla. Stat. Descent of homestead.
§ 732.4015, Fla. Stat. Devise of homestead.
§ 733.608(2), Fla. Stat. General power of the personal
representative.
Rule References
Fla. Prob. R. 5.402 Notice of lien on protected homestead.
Fla. Prob. R. 5.403 Proceedings to determine amount of lien on
protected homestead.
Fla. Prob. R. 5.405 Proceedings to determine protected
homestead status of real property.
RULE 5.405 cases. 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) the date of the decedent’s death;
(2) the county of the decedent’s domicile at the time of
death;
(3) the name of the decedent’s surviving spouse and the
names of surviving descendants, and a statement as to whether the
decedent had any minor children as of the date of death. If so, they
should be identified with name and year of birth;
(4) a legal description of the property owned by the
decedent on which the decedent resided;
(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) Order. The court’s order on the petition shall describe
the real property and determine whether any of the real property
constituted the protected homestead of the decedent. If the court
determines that any of the real property was the protected
homestead of the decedent, the order shall identify by name the
person or persons entitled to the protected homestead real property
and define the interest of each.
Committee Notes
This rule establishes the procedure by which the personal
representative or any interested person may petition the court for a
determination that certain real property constituted the decedent’s
protected homestead property, in accordance with article X, section
4 of the Florida Constitution. The jurisdiction of the court to
determine constitutional protected homestead property was
established by In re Noble’s Estate, 73 So. 2d 873 (Fla. 1954).
Rule History
1984 Revision: New rule.
1988 Revision: Editorial change in (a). Subdivision (b)(4)
amended to conform to constitutional change. Committee notes
revised. Citation form change in committee notes.
1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.
1996 Revision: Subdivision (c) amended to require description
of real property that is the subject of the petition, description of any
homestead property, and definition of specific interests of persons
entitled to homestead real property.
2002 Revision: Replaces “homestead” with “protected
homestead” throughout to conform to addition of term in section
731.201(29), Florida Statutes. Committee notes revised.
2003 Revision: Committee notes revised.
2007 Revision: Committee notes revised.
2010 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
2014 Revision: Amends subdivisions (b)(3) and (c) to conform
to Fla. R. Gen. Prac. & Jud. Admin. 2.425. Committee notes
revised.
2021 Revision: Amends subdivisions (a) and (b)(5) to include
real property owned by a trust. Committee notes revised.
Constitutional Reference
Art. X, § 4, Fla. Const.
Statutory References
§ 731.104, Fla. Stat. Verification of documents.
§ 731.201(33), Fla. Stat. General definitions.
§ 732.401, Fla. Stat. Descent of homestead.
§ 732.4015, Fla. Stat. Devise of homestead.
§ 733.607, Fla. Stat. Possession of estate.
§ 733.608, Fla. Stat. General power of the personal
representative.
§ 733.707(3), Fla. Stat. Order of payment of expenses and
obligations.
§ 736.0201(7), Fla. Stat. Role of court in trust proceedings.
§ 736.1109, Fla. Stat. Testamentary and revocable trusts;
homestead protections.
§ 736.151, Fla. Stat. Homestead property.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.205(a)(6) Filing evidence of death.
Fla. Prob. R. 5.340 Inventory.
Fla. Prob. R. 5.404 Notice of taking possession of protected
homestead.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.406 cases. PROCEEDINGS TO DETERMINE EXEMPT
PROPERTY
(a) Petition. An interested person may file a petition to
determine exempt property within the time allowed by law.
(b) Contents. The petition shall be verified by the petitioner
and shall:
(1) describe the property and the basis on which it is
claimed as exempt property; and
(2) state the name and address of the decedent’s
surviving spouse or, if none, the names and addresses of decedent’s
children entitled by law to the exempt property and the year of birth
of those who are minors.
(c) Order. The court shall determine each item of exempt
property and its value, if necessary to determine its exempt status,
and order the surrender of that property to the persons entitled to
it.
Committee Notes
This rule establishes the procedure by which the personal
representative or any interested person may petition the court for
determination of exempt property in accordance with article X,
section 4 of the Florida Constitution and section 732.402, Florida
Statutes.
Section 732.402, Florida Statutes, specifies the time within
which the petition to determine exempt property must be filed,
within 4 months after the date of service of the notice of
administration, unless extended as provided in the statute.
Rule History
1984 Revision: New rule.
1988 Revision: Subdivision (a) revised to reflect editorial
changes and to require verification. Subdivision (b)(1) revised to
require the basis for asserting exempt property status. Subdivision
(b)(2) added the requirement of stating addresses of those entitled to
exempt property. Subdivision (c) revised to reflect editorial changes
and to require determination of the value of each item of exempt
property. Committee notes revised.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
1996 Revision: Editorial changes in rule to conform to similar
language in rule 5.405. Committee notes revised.
2003 Revision: Committee notes revised.
2010 Revision: Subdivision (c) amended to limit the instances
in which the value of the property claimed as exempt needs to be
stated in the order.
2012 Revision: Committee notes revised.
2014 Revision: Subdivision (b)(2) amended to conform to Fla.
R. Gen. Prac. & Jud. Admin. 2.425 and provide the year of birth of
a minor. Committee notes revised.
Statutory References
§ 731.104, Fla. Stat. Verification of documents.
§ 732.402, Fla. Stat. Exempt property.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.420 Disposition of personal property without
administration.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.407 cases. PROCEEDINGS TO DETERMINE FAMILY
ALLOWANCE
(a) Petition. An interested person may file a petition to
determine family allowance.
(b) Contents. The petition shall be verified by the petitioner
and shall:
(1) state the names and addresses of the decedent’s
surviving spouse and the decedent’s adult lineal heirs and the
initials, address, and year of birth of the decedents’ lineal heirs who
are minors and who were being supported by the decedent or who
were entitled to be supported by the decedent at the time of the
decedent’s death; and
(2) for each person for whom an allowance is sought,
state the adult person’s name, or minor child’s initials, and
relationship to the decedent, the basis on which the allowance is
claimed, and the amount sought.
(c) Order. The order shall identify each adult person’s name
and each minor child’s initials entitled to the allowance, the amount
to which each is entitled, the method of payment, and to whom
payment should be made.
Committee Notes
Rule History
2003 Revision: New rule.
2012 Revision: Editorial change in (b)(1) for gender neutrality.
Committee notes revised.
2014 Revision: Subdivisions (b)(1) and (b)(2) are amended to
conform to Fla. R. Gen. Prac. & Jud. Admin. 2.425. Committee
notes revised.
2019 Revision: Subdivision (c) is revised to conform to Fla. R.
Gen. Prac. & Jud. Admin. 2.425. Committee notes revised.
Statutory References
§ 731.104, Fla. Stat. Verification of documents.
§ 732.403, Fla. Stat. Family allowance.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.420 cases. DISPOSITION OF PERSONAL PROPERTY
WITHOUT ADMINISTRATION
(a) Application. An interested person may request a
disposition of the decedent’s personal property without
administration. An application signed by the applicant shall set
forth:
(1) the description and value of the exempt property;
(2) the description and value of the other assets of the
decedent;
(3) the amount of preferred funeral expenses and
reasonable and necessary medical and hospital expenses for the
last 60 days of the last illness together with accompanying
statements or payment receipts; and
(4) each requested payment or distribution of personal
property.
(b) Exempt Property. If the decedent’s personal property
includes exempt property, or property that can be determined to be
exempt property, the application must also be signed by all persons
entitled to the exempt property or by their representative.
(c) Preparation. On request, the clerk shall assist the
applicant in the preparation of the required writing.
(d) Disposition. If the court is satisfied that disposition
without administration is appropriate, the court may, without
hearing, by letter or other writing authorize the payment, transfer,
or disposition of the decedent’s personal property to those persons
entitled to it.
Committee Notes
Section 732.402, Florida Statutes, requires persons entitled to
exempt property, which excludes property specifically or
demonstratively devised, to file timely a petition to determine
exempt property. Accordingly, disposition of personal property
under this rule should not be granted if decedent’s personal
property includes exempt property without all persons entitled
thereto agreeing to such disposition.
Rule History
1977 Revision: Permits the clerk to perform limited ministerial
acts in the completion of the application.
1984 Revision: Editorial changes. Delineates the required
contents of the application. Committee notes revised.
1988 Revision: Subdivision (a)(3) changed to require applicant
to attach accompanying statements or payment receipts regarding
priority expenses. Subdivision (b) added to require persons entitled
to exempt property to agree to the proposed disposition. Committee
notes expanded.
1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
Statutory References
§ 732.402, Fla. Stat. Exempt property.
§ 735.301, Fla. Stat. Disposition without administration.
Rule Reference
Fla. Prob. R. 5.205(a)(4) Filing evidence of death.
RULE 5.425 cases. DISPOSITION WITHOUT ADMINISTRATION OF
INTESTATE PERSONAL PROPERTY IN SMALL
ESTATES
(a) Administration Not Required. No administration shall
be required or formal proceedings instituted upon the estate of a
decedent who:
(1) died intestate;
(2) leaves only:
(A) personal property exempt under the provisions
of section 732.402, Florida Statutes,
(B) personal property exempt from the claims of
creditors under the Florida Constitution, and
(C) non-exempt personal property the value of
which does not exceed the sum of $10,000 and the amount of
preferred funeral expenses and reasonable and necessary medical
and hospital expenses of the last 60 days of the last illness;
(3) has been deceased for more than 1 year; and
(4) no administration of the decedent’s estate is
pending in this state.
(b) Affidavit. Any heir at law of the decedent entitled to a
share of the intestate estate pursuant to section 732.102 or section
732.103, Florida Statutes, may by affidavit request distribution of
assets of the decedent by affidavit. The affidavit must be signed and
verified by the surviving spouse, if any, and any heirs at law, except
that joinder in the affidavit is not required of an heir at law who will
receive a full intestate share under the proposed distribution of the
personal property. The affidavit shall contain:
(1) a statement that the decedent died intestate, and
that after the exercise of reasonable diligence, the person signing
the affidavit is unaware of any unrevoked wills or codicils;
(2) a statement that the decedent has been deceased
for more than 1 year;
(3) a statement that the decedent died leaving only
personal property exempt under the provisions of section 732.402,
Florida Statutes, personal property exempt from the claims of
creditors under the Florida Constitution, and non-exempt personal
property the value of which does not exceed the sum of $10,000;
(4) a description of all assets subject to distribution
without administration and their values;
(5) a statement setting forth the amount of preferred
funeral expenses and reasonable and necessary medical and
hospital expenses of the last 60 days of the last illness;
(6) a statement that no administration of the decedent’s
estate is pending in this state;
(7) a statement of the relationship of each person
signing the affidavit to the decedent, and each person’s name and
address;
(8) the name and last known address of the decedent,
last 4 digits of the decedent’s social security number, date and
place of death of the decedent, and state and county of decedent’s
domicile;
(9) so far as is known, the names and addresses of the
surviving spouse, if any, and the heirs of the decedent, and their
relationship to the decedent and the year of birth of any who are
minors;
(10) a statement either:
(A) that all claims against the decedent’s estate
are barred; or
(B) that a diligent search and reasonable inquiry
for any known or reasonably ascertainable creditors has been made
and one of the following:
(i) a statement that the estate is not
indebted;
(ii) the name and address of each creditor,
the nature of the debt, the amount of the debt and whether the
amount is estimated or exact, and when the debt is due. If provision
for payment has been made other than for full payment in the
proposed distribution schedule, the following information must be
shown:
(a) the name of the person who will pay
the debt,
(b) the creditor’s written consent for
substitution or assumption of the debt by another person,
(c) the amount to be paid if the debt
has been compromised, and
(d) the terms for payment and any
limitation on the liability of the person paying the debt; and
(11) a schedule of proposed distribution of all
intestate personal property.
(c) Service. The affidavit must be served in the manner of
formal notice upon
(1) all heirs at law who have not joined in the affidavit;
(2) all known or reasonably ascertainable creditors of
the decedent; and
(3) if at the time of death the decedent was over the age
of 55 years, upon the Agency for Health Care Administration.
(d) Writing Under Seal of Court. If the court determines
that section 735.304(1) is applicable and the affidavit filed by the
heir at law meets the requirements of section 735.304(2), the court,
by letter of other writing under the seal of the court, must authorize
the payment, transfer, disposition, delivery, or assignment of the
tangible or intangible personal property to those persons entitled.
Committee Notes
Section 732.402, Florida Statutes, requires persons entitled to
exempt property, which excludes property specifically or
demonstratively devised, to file timely a petition to determine
exempt property. Accordingly, disposition of personal property
under this rule should not be granted if decedent’s personal
property includes exempt property without all persons entitled
thereto agreeing to such disposition.
Rule History
2020 Adoption: New rule based upon Chapter 2020-110, Laws
of Florida.
Statutory References
§ 735.304, Fla. Stat. Disposition without administration of
intestate property in small estates.
RULE 5.430 cases. RESIGNATION OF PERSONAL REPRESENTATIVE
(a) Resignation. A personal representative may resign with
court approval.
(b) Petition for Resignation. The personal representative
seeking to resign shall file a petition for resignation. The petition
shall be verified and shall state:
(1) the personal representative desires to resign and be
relieved of all powers, duties, and obligations as personal
representative;
(2) the status of the estate administration and that the
interests of the estate will not be jeopardized if the resignation is
accepted;
(3) whether a proceeding for accounting, surcharge, or
indemnification or other proceeding against the resigning personal
representative is pending; and
(4) whether the appointment of a successor fiduciary is
necessary. If the petition nominates a successor fiduciary, it shall
state the nominee’s priority under the Florida Probate Code, if any,
and that the nominee is qualified to serve under the laws of Florida.
(c) Service. The petition shall be served by formal notice on
all interested persons and the personal representative’s surety, if
any.
(d) Appointment of Successor. Before accepting the
resignation, the court shall determine the necessity for appointment
of a successor fiduciary. If there is no joint personal representative
serving, the court shall appoint a successor fiduciary.
(e) Acceptance of Resignation. The court may accept the
resignation and revoke the letters of the resigning personal
representative if the interests of the estate are not jeopardized.
Acceptance of the resignation shall not exonerate the resigning
personal representative or the resigning personal representative’s
surety from liability.
(f) Delivery of Records and Property. The resigning
personal representative shall immediately upon acceptance of the
resignation by the court deliver to the remaining personal
representative or the successor fiduciary all of the records of the
estate and all property of the estate, unless otherwise directed by
the court.
(g) Petition for Discharge; Accounting. The resigning
personal representative shall file an accounting and a petition for
discharge within 30 days after the date that the letters of the
resigning personal representative are revoked by the court. The
petition for discharge shall be verified and shall state:
(1) that the letters of the resigning personal
representative have been revoked;
(2) that the resigning personal representative has
surrendered all undistributed estate assets, records, documents,
papers, and other property of or concerning the estate to the
remaining personal representative or the successor fiduciary; and
(3) the amount of compensation paid or to be paid the
resigning personal representative and the attorney and other
persons employed by the resigning personal representative.
(h) Notice, Filing, and Objections to Accounting. Notice
of, filing of, and objections to the accounting of the resigning
personal representative shall be as provided in rule 5.345.
(i) Notice of Filing and Objections to Petition for
Discharge.
(1) Notice of filing and a copy of the petition for
discharge shall be served on all interested persons. The notice shall
state that objections to the petition for discharge must be filed
within 30 days after the later of service of the petition or service of
the accounting on that interested person.
(2) Any interested person may file an objection to the
petition for discharge within 30 days after the later of service of the
petition or service of the accounting on that interested person. Any
objection not filed within such time shall be deemed abandoned. An
objection shall be in writing and shall state with particularity the
item or items to which the objection is directed and the grounds on
which the objection is based.
(3) The objecting party shall serve a copy of the
objection on the resigning personal representative and other
interested persons.
(4) Any interested person may set a hearing on the
objections. Notice of the hearing shall be given to the resigning
personal representative and other interested persons.
(j) Failure to File Accounting or Deliver Records or
Property. The resigning personal representative shall be subject to
contempt proceedings if the resigning personal representative fails
to file an accounting or fails to deliver all property of the estate and
all estate records under the control of the resigning personal
representative to the remaining personal representative or the
successor fiduciary within the time prescribed by this rule or by
court order.
(k) Discharge. The court shall enter an order discharging
the resigning personal representative and releasing the surety on
any bond after the court is satisfied that the resigning personal
representative has delivered all records and property of the estate to
the remaining personal representative or the successor fiduciary;
that all objections, if any, to the accounting of the resigning
personal representative have been withdrawn, abandoned, or
judicially resolved; and that the liability of the resigning personal
representative has been determined and satisfied.
Committee Notes
In the event of resignation of a personal representative, if a
joint personal representative is not serving, the successor fiduciary
must file an oath and designation of a successor resident agent.
This rule was revised to implement the revisions to the probate
code that govern resignation of personal representative. The
committee intended to separate the procedure with respect to
resignation from removal because these proceedings may differ in
practice.
Rule History
1975 Revision: The rule provides for the orderly succession of
personal representatives in the event a personal representative
resigns or is removed.
1977 Revision: Editorial change in committee note.
1988 Revision: Editorial changes; captions added to
subdivisions. Committee notes revised. Citation form changes in
committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Rule completely revised to comply with
statutory changes. Committee notes revised.
2007 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
Statutory References
§ 731.104, Fla. Stat. Verification of documents.
§ 731.201(23), Fla. Stat. General definitions.
§ 733.101, Fla. Stat. Venue of probate proceedings.
§ 733.502, Fla. Stat. Resignation of personal representative.
§ 733.503, Fla. Stat. Appointment of successor upon
resignation.
§ 733.5035, Fla. Stat. Surrender of assets after resignation.
§ 733.5036, Fla. Stat. Accounting and discharge following
resignation.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.310 Disqualification of personal representative;
notification.
Fla. Prob. R. 5.330 Execution by personal representative.
Fla. Prob. R. 5.345 Accountings other than personal
representatives’ final accountings.
Fla. Prob. R. 5.346 Fiduciary accounting.
Fla. Prob. R. 5.401 Objections to petition for discharge or final
accounting.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents
RULE 5.440 cases. PROCEEDINGS FOR REMOVAL OF PERSONAL
REPRESENTATIVE
(a) Commencement of Proceeding. The court on its own
motion may remove, or any interested person by petition may
commence a proceeding to remove, a personal representative. A
petition for removal shall state the facts constituting the grounds
upon which removal is sought, and shall be filed in the court having
jurisdiction over the administration of the estate.
(b) Accounting. A removed personal representative shall file
an accounting within 30 days after removal.
(c) Delivery of Records and Property. A removed personal
representative shall, immediately after removal or within such time
prescribed by court order, deliver to the remaining personal
representative or to the successor fiduciary all of the records of the
estate and all of the property of the estate.
(d) Failure to File Accounting or Deliver Records and
Property. If a removed personal representative fails to file an
accounting or fails to deliver all property of the estate and all estate
records under the control of the removed personal representative to
the remaining personal representative or to the successor fiduciary
within the time prescribed by this rule or by court order, the
removed personal representative shall be subject to contempt
proceedings.
Committee Notes
The revision of subdivision (a) of this rule by the addition of its
final phrase represents a rule implementation of the procedure
found in section 733.505, Florida Statutes. It is not intended to
change the effect of the statute from which it was derived but has
been reformatted to conform with the structure of these rules. It is
not intended to create a new procedure or modify an existing
procedure.
Rule History
1980 Revision: Subdivision (a) amended to require formal
notice to interested persons and to delete requirement that court
give directions as to mode of notice. Surety authorized to petition
for removal.
1984 Revision: Editorial changes. Provisions in prior rule for
contempt have been deleted since the court has the inherent power
to punish for contempt. Committee notes revised.
1988 Revision: Last phrase of (a) added to implement the
procedure found in section 733.505, Florida Statutes. Subdivision
(b) amended to parallel interim accounting rules. Deletes ability to
extend time to file and adds reference to court power to punish for
contempt. Committee notes expanded. Editorial changes. Citation
form changes in committee notes.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2002 Revision: Entire rule amended. Contents of accountings
by removed fiduciaries are now governed by rule 5.346. Editorial
changes in (a), (c), and (d). Committee notes revised.
2003 Revision: Committee notes revised.
2007 Revision: Committee notes revised.
2010 Revision: Editorial change in title to clarify scope of rule.
2012 Revision: Committee notes revised.
Statutory References
§ 731.201(23), Fla. Stat. General definitions.
§ 733.504, Fla. Stat. Removal of personal representative;
causes of removal.
§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.
§ 733.506, Fla. Stat. Proceedings for removal.
§ 733.5061, Fla. Stat. Appointment of successor upon
removal.
§ 733.508, Fla. Stat. Accounting and discharge of removed
personal representatives upon removal.
§ 733.509, Fla. Stat. Surrender of assets upon removal.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.150 Order requiring accounting.
Fla. Prob. R. 5.310 Disqualification of personal representative;
notification.
Fla. Prob. R. 5.345 Accountings other than personal
representatives’ final accountings.
Fla. Prob. R. 5.346 Fiduciary accounting.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.460 cases. SUBSEQUENT ADMINISTRATION
(a) Petition. If, after an estate is closed, additional property
of the decedent is discovered or if further administration of the
estate is required for any other reason, any interested person may
file a petition for further administration of the estate. The petition
shall be filed in the same probate file as the original administration.
(b) Contents. The petition shall state:
(1) the name, address, and interest of the petitioner in
the estate;
(2) the reason for further administration of the estate;
(3) the description, approximate value, and location of
any asset not included among the assets of the prior
administration; and
(4) a statement of the relief sought.
(c) Order. The court shall enter such orders as appropriate.
Unless required, the court need not revoke the order of discharge,
reissue letters, or require bond.
Committee Notes
This rule establishes a procedure for further administration
after estate is closed, which may be summary in nature.
Rule History
1984 Revision: Extensive changes. Committee notes revised.
1992 Revision: Citation form change in committee notes.
2003 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
Statutory Reference
§ 733.903, Fla. Stat. Subsequent administration.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.470 cases. ANCILLARY ADMINISTRATION
(a) Petition. The contents of the petition for ancillary letters
shall be as provided in rule 5.200. The petition shall be verified and
shall include:
(1) for a testate estate, an authenticated copy of so
much of the domiciliary proceedings as will show the will, petition
for probate, order admitting the will to probate, and authority of the
personal representative;
(2) for an intestate estate, an authenticated copy of so
much of the domiciliary proceedings as will show the petition for
administration, and authority of the personal representative to act;
or
(3) if appointment of someone other than the
domiciliary personal representative is requested, a statement of the
facts constituting grounds on which appointment is sought.
(b) Notice. Before ancillary letters shall be issued to any
person, formal notice shall be given to:
(1) all known persons qualified to act as ancillary
personal representative and whose entitlement to preference of
appointment is equal to or greater than petitioner’s and who have
not waived notice or joined in the petition; and
(2) all domiciliary personal representatives who have
not waived notice or joined in the petition.
(c) Probate of Will. On filing the authenticated copy of a
will, the court shall determine whether the will complies with
Florida law to entitle it to probate. If it does comply, the court shall
admit the will to probate.
Committee Notes
Rule History
1975 Revision: The rule sets out the procedural requirements
for issuance of ancillary letters.
1984 Revision: Editorial changes with addition of notice
requirement in (b). Committee notes revised.
1988 Revision: Committee notes revised.
1992 Revision: Changed rule to require that notice be given to
persons qualified to act as ancillary personal representative whose
entitlement to preference of appointment is equal to or greater than
petitioner’s and to all domiciliary personal representatives prior to
entry of an order admitting the will to probate. Committee notes
revised. Citation form changes in committee notes.
1996 Revision: The requirement that a filing of an
authenticated 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 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 document other than an original
instrument to be filed under this rule and considered for probate.
2003 Revision: Committee notes revised.
2005 Revision: Committee notes revised.
2010 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
2019 Revision: Subdivision (a) amended to clarify the contents
of a petition for ancillary letters. Committee notes revised.
Statutory References
§ 731.201(1), Fla. Stat. General definitions.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.
§ 734.102, Fla. Stat. Ancillary administration.
§ 734.1025, Fla. Stat. Nonresident decedent’s testate estate
with property not exceeding $50,000 in this state; determination of
claims.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.065(b) Notice of civil action or ancillary
administration.
Fla. Prob. R. 5.200 Petition for Administration.
Fla. Prob. R. 5.205(a)(2) Filing evidence of death.
Fla. Prob. R. 5.215 Authenticated copy of will.
Fla. Prob. R. 5.240 Notice of administration.
Fla. Prob. R. 5.241 Notice to creditors.
Fla. Prob. R. 5.475 Ancillary administration, short form.
Fed. R. Civ. P. 44(a) Proving an official record.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.475 cases. ANCILLARY ADMINISTRATION, SHORT FORM
(a) Filing Requirements. The foreign personal
representative of a testate estate that meets the requirements of
section 734.1025, Florida Statutes, may file with the clerk in the
county where any property is located an authenticated copy of so
much of the transcript of the foreign proceedings as will show:
(1) the probated will and all probated codicils of the
decedent;
(2) the order admitting them to probate;
(3) the letters or their equivalent; and
(4) the part of the record showing the names of the
beneficiaries of the estate or an affidavit of the foreign personal
representative reciting that the names are not shown or not fully
disclosed by the foreign record and specifying the names.
On presentation of the foregoing, the court shall admit the will
and any codicils to probate if they comply with section 732.502(1)
or section 732.502(2), Florida Statutes.
(b) Notice to Creditors. After complying with the foregoing
requirements, the foreign personal representative may cause a
notice to creditors to be published as required by these rules.
(c) Claims Procedure. The procedure for filing or barring
claims and objecting to them and for suing on them shall be the
same as for other estates, except as provided in this rule.
(d) Order. If no claims are filed against the estate within the
time allowed, the court shall enter an order adjudging that notice to
creditors has been duly published and proof thereof filed and that
no claims have been filed against the estate or that all claims have
been satisfied.
(e) Notification of Claims Filed. If any claim is filed against
the estate within the time allowed, the clerk shall send to the
foreign personal representative a copy of the claim and a notice
setting a date for a hearing to appoint an ancillary personal
representative. At the hearing, the court shall appoint an ancillary
personal representative according to the preferences as provided by
law.
(f) Objections to Claims. If an ancillary personal
representative is appointed pursuant to this rule, the procedure for
filing, objecting to, and suing on claims shall be the same as for
other estates, except that the ancillary personal representative
appointed shall have not less than 30 days from the date of
appointment within which to object to any claim filed.
Committee Notes
This rule represents a rule implementation of the procedure
found in section 734.1025, Florida Statutes. It is not intended to
change the effect of the statute from which it was derived but has
been reformatted to conform with the structure of these rules. It is
not intended to create a new procedure or modify an existing
procedure.
Rule History
1988 Revision: New rule.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2003 Revision: Committee notes revised.
2005 Revision: Deletion of reference to intestate estates in
subdivision (a) to conform to 2001 amendments to section
734.1025, Florida Statutes. Editorial changes throughout.
2012 Revision: Committee notes revised.
Statutory References
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.
§ 734.102, Fla. Stat. Ancillary administration.
§ 734.1025, Fla. Stat. Nonresident decedent’s testate estate
with property not exceeding $50,000 in this state; determination of
claims.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.065(b) Notice of civil action or ancillary
administration.
Fla. Prob. R. 5.205(a)(2) Filing evidence of death.
Fla. Prob. R. 5.215 Authenticated copy of will.
Fla. Prob. R. 5.240 Notice of administration.
Fla. Prob. R. 5.241 Notice to creditors.
Fla. Prob. R. 5.470 Ancillary administration.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.490 cases. FORM AND MANNER OF PRESENTING CLAIM
(a) Form. A creditor’s statement of claim shall be verified
and filed with the clerk and shall state:
(1) the basis for the claim;
(2) the amount claimed;
(3) the name and address of the creditor;
(4) the security for the claim, if any; and
(5) whether the claim is currently due or involves an
uncertainty and, if not due, then the due date and, if contingent or
unliquidated, the nature of the uncertainty.
(b) Service. The clerk shall serve a copy of the claim as set
forth in rule 5.041, to the attorney for the personal representative,
unless all personal representatives file a notice directing that claims
be served on a designated personal representative or designated
attorney of record. Absent designation, a copy of claim shall be
served on the attorney for the personal representative named first in
the letters of administration. The clerk shall note the fact and date
of service on the statement of claim pursuant to this rule.
(c) Validity of Claim. Failure to deliver or receive a copy of
the claim shall not affect the validity of the claim.
(d) Amending Claims. If a claim as filed is sufficient to
notify interested persons of its substance but is otherwise defective
as to form, the court may permit the claim to be amended at any
time.
(e) Service by Personal Representative. If the personal
representative files a claim individually, or in any other capacity
creating a conflict of interest between the personal representative
and any interested person, then at the time the claim is filed, the
personal representative shall serve all interested persons with a
copy of the claim and notice of the right to object to the claim. The
notice shall state that an interested person may object to a claim as
provided by law and rule 5.496. Service shall be either by informal
notice or in the manner provided for service of formal notice. Service
on one interested person by a chosen method shall not preclude
service on another interested person by another method.
Committee Notes
Subdivision (d) of this rule represents a rule implementation of
the procedure found in section 733.704, Florida Statutes. It is not
intended to change the effect of the statute from which it was
derived but has been reformatted to conform with the structure of
these rules. It is not intended to create a new procedure or modify
an existing procedure.
Rule History
1975 Revision: Sets forth the claims procedure to be followed
and clarifies the matter of delivery of copies where there are
multiple personal representatives or where the attorney of record
desires to accept such delivery.
1984 Revision: Extensive editorial changes and requires
furnishing of copy of claim to the attorney for the personal
representative. Committee notes revised.
1988 Revision: Clarifies the matter of delivery of copies and
directs the clerk to mail the same to the attorney for the personal
representative unless designations are filed by all personal
representatives to the contrary. Subdivision (e) added to implement
the procedure found in section 733.704, Florida Statutes. Editorial
changes. Committee notes expanded. Citation form change in
committee notes.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
1999 Revision: Reference to repealed rule deleted from
committee notes.
2003 Revision: Committee notes revised.
2007 Revision: Editorial change in (a). New (f) added, providing
procedure for notice when personal representative files a claim
individually or otherwise has a conflict of interest with any
interested person regarding a claim.
2019 Revisions. Deletes subdivision (b) to conform to the
electronic filing rule. Subdivision (c) is renumbered to (b) and is
amended to address the electronic service rules. Subdivisions (c)–(e)
are renumbered accordingly. Committee notes revised.
Statutory References
§ 731.104, Fla. Stat. Verification of documents.
§ 733.2121, Fla. Stat. Notice to creditors; filing of claims.
§ 733.702, Fla. Stat. Limitations on presentation of claims.
§ 733.703, Fla. Stat. Form and manner of presenting claim.
§ 733.704, Fla. Stat. Amendment of claims.
§ 733.708, Fla. Stat. Compromise.
§ 733.710, Fla. Stat. Limitations on claims against estates.
§ 734.102, Fla. Stat. Ancillary administration.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.241 Notice to creditors.
Fla. Prob. R. 5.470 Ancillary administration.
Fla. Prob. R. 5.475 Ancillary administration, short form.
Fla. Prob. R. 5.530 Summary administration.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of Pleadings
and Documents
Fla. R. Gen. Prac. & Jud. Admin. 2.520 Documents
Fla. R. Gen. Prac. & Jud. Admin. 2.525 Electronic Filing
RULE 5.496 cases. FORM AND MANNER OF OBJECTING TO CLAIM
(a) Filing. An objection to a claim, other than a personal
representative’s proof of claim, shall be in writing and filed on or
before the expiration of 4 months from the first publication of notice
to creditors or within 30 days from the timely filing or amendment
of the claim, whichever occurs later.
(b) Service. A personal representative or other interested
person who files an objection to the claim shall serve a copy of the
objection on the claimant. If the objection is filed by an interested
person other than the personal representative, a copy of the
objection shall also be served on the personal representative. Any
objection shall include a certificate of service.
(c) Notice to Claimant. An objection shall contain a
statement that the claimant is limited to a period of 30 days from
the date of service of an objection within which to bring an action as
provided by law.
Committee Notes
This rule represents an implementation of the procedure found
in section 733.705, Florida Statutes, and adds a requirement to
furnish notice of the time limitation in which an independent action
or declaratory action must be filed after objection to a claim.
Rule History
1992 Revision: New rule.
2003 Revision: Reference in (a) to notice of administration
changed to notice to creditors. Committee notes revised.
2005 Revision: Removed provision for objections to personal
representative’s proof of claim, now addressed in rule 5.498, and
subsequent subdivisions relettered. Reference to service on the
claimant’s attorney removed because service on the attorney is
required by rule 5.041(b). Committee notes revised.
2007 Revision: Editorial change in (a). Second sentence of (b)
added to specify that the objection must include a certificate of
service.
2010 Revision: Subdivision (b) amended to delete the
requirement to serve a copy of an objection to a claim within 10
days, and to clarify the requirement to include a certificate of
service.
2012 Revision: Committee notes revised.
Statutory References
§ 731.201(4), Fla. Stat. General definitions.
§ 733.705, Fla. Stat. Payment of and objection to claims.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.498 Personal representative’s proof of claim.
Fla. Prob. R. 5.499 Form and manner of objecting to personal
representative’s proof of claim.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.498 cases. PERSONAL REPRESENTATIVE’S PROOF OF
CLAIM
(a) Contents. A personal representative’s proof of claim shall
state:
(1) the basis for each claim;
(2) the amount claimed;
(3) the name and address of the claimant;
(4) the security for the claim, if any;
(5) whether the claim is matured, unmatured,
contingent, or unliquidated;
(6) whether the claim has been paid or is to be paid;
and
(7) that any objection to a claim listed as to be paid
shall be filed no later than 4 months from first publication of the
notice to creditors or 30 days from the date of the filing of the proof
of claim, whichever occurs later.
(b) Service. The proof of claim shall be served at the time of
filing or promptly thereafter on all interested persons.
Committee Notes
This rule represents an implementation of the procedure found
in section 733.703(2), Florida Statutes, with respect to a proof of
claim filed by the personal representative.
Rule History
2005 Revision: New rule.
2007 Revision: Subdivision (b) amended to eliminate the need
to serve claimants listed as paid on the proof of claim, and clarifying
editorial change.
2012 Revision: Committee notes revised.
Statutory References
§ 733.703(2), Fla. Stat. Form and manner of presenting claim.
§ 733.705, Fla. Stat. Payment of and objection to claims.
Rule References
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.499 Form and manner of objecting to personal
representative’s proof of claim.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.499 cases. FORM AND MANNER OF OBJECTING TO
PERSONAL REPRESENTATIVE’S PROOF OF
CLAIM
(a) Filing. An objection to a personal representative’s proof
of claim shall be in writing and filed on or before the expiration of 4
months from the first publication of notice to creditors or within 30
days from the timely filing of the proof of claim, whichever occurs
later.
(b) Contents. The objection shall identify the particular item
or items to which objection is made. An objection to an item listed
on the proof of claim as to be paid shall also contain a statement
that the claimant is limited to a period of 30 days from the date of
service of an objection within which to bring an independent action
as provided by law.
(c) Items Listed as Paid. If an objection is filed to an item
listed on the proof of claim as paid, it shall not be necessary for the
claimant to file an independent action as to that item. Liability as
between estate and the personal representative individually for
claims listed on the proof of claim as paid, or for claims treated as if
they were listed on the proof of claim as paid, shall be determined
in the estate administration, in a proceeding for accounting or
surcharge, or in another appropriate proceeding, whether or not an
objection has been filed.
(d) Items Paid Before Objection. If an item listed as to be
paid is paid by the personal representative 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 claim as paid.
(e) Service. The objector shall serve a copy of the objection
on the personal representative and, in the case of any objection to
an item listed as to be paid, shall also serve a copy on that claimant
within 10 days after the filing of the objection. In the case of an
objection to an item listed as to be paid, the objection shall include
a certificate of service.
Committee Notes
This rule represents an implementation of the procedure found
in section 733.705, Florida Statutes, with respect to a proof of claim
filed by the personal representative. The rule recognizes the
different treatment between items listed on a proof of claim as
having been paid versus items listed as to be paid. An objection to
an item listed as to be paid is treated in the same manner as a
creditor’s claim and there is a requirement to furnish notice of the
time limitation in which an independent action or declaratory action
must be filed after objection to a claim.
Rule History
2005 Revision: New rule.
2007 Revision: Editorial change in (a). Extensive revisions to
rest of rule to clarify the differences in procedure between items
listed as paid and items listed as to be paid. Committee notes
revised.
2012 Revision: Committee notes revised.
Statutory Reference
§ 733.705, Fla. Stat. Payment of and objection to claims.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.496 Form and manner of objecting to claim.
Fla. Prob. R. 5.498 Personal representative’s proof of claim.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.510 cases. ESTABLISHMENT AND PROBATE OF LOST OR
DESTROYED WILL
(a) Proceeding. The establishment and probate of a lost or
destroyed will shall be in one proceeding.
(b) Petition. The petition, in addition to reciting information
required under these rules for petition for administration, shall
include a statement of the facts constituting grounds on which
relief is sought, and a statement of the contents of the will or, if
available, a copy of the will.
(c) Testimony. The testimony of each witness in the
proceeding shall be reduced to writing and filed and may be used as
evidence in any contest of the will if the witness has died or moved
from the state.
(d) Notice. No lost or destroyed will shall be admitted to
probate unless formal notice has been given to those who, but for
the will, would be entitled to the property thereby devised.
(e) Order. The order admitting the will to probate shall state
in full its terms and provisions.
Committee Notes
This rule represents a rule implementation of the procedure
formerly found in section 733.207, Florida Statutes. It is not
intended to change the effect of the statute from which it was
derived but has been reformatted to conform with the structure of
these rules. It is not intended to create a new procedure or modify
an existing procedure.
Rule History
1977 Revision: Editorial change in subdivision (c) of prior rule.
1984 Revision: Extensive changes. Committee notes revised.
1988 Revision: Rule rewritten to conform to statute.
Committee notes expanded. Citation form change in committee
notes.
1992 Revision: Committee notes revised. Citation form change
in committee notes.
2002 Revision: Subdivision (d) added to implement procedure
formerly found in section 733.207(3), Florida Statutes. Committee
notes revised.
2003 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
Statutory Reference
§ 733.207, Fla. Stat. Establishment and probate of lost or
destroyed will.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.200 Petition for administration.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.530 cases. SUMMARY ADMINISTRATION
(a) Petition. The petition must be verified as required by law
and must contain:
(1) a statement of the interest of each petitioner, each
petitioner’s name and address, and the name and office address of
each petitioner’s attorney;
(2) the name and last known address of the decedent,
last 4 digits of the decedent’s social security number, date and
place of death of the decedent, and state and county of the
decedent’s domicile;
(3) so far as is known, the names and addresses of the
surviving spouse, if any, and the beneficiaries and their relationship
to the decedent and the year of birth of any who are minors;
(4) a statement showing venue;
(5) a statement whether domiciliary or principal
proceedings are pending in another state or country, if known, and
the name and address of the foreign personal representative and
the court issuing letters;
(6) a statement that the decedent’s will, if any, does not
direct administration as required by chapter 733, Florida Statutes;
(7) a statement that the value of the entire estate
subject to administration in this state, less the value of property
exempt from the claims of creditors, does not exceed $75,000 or
that the decedent has been dead for more than 2 years;
(8) a description of all assets in the estate and the
estimated value of each, and a separate description of any protected
homestead and exempt property;
(9) a statement either:
(A) that all creditors’ claims are barred or
(B) that a diligent search and reasonable inquiry
for any known or reasonably ascertainable creditors has been made
and one of the following:
(i) A statement that the estate is not
indebted.
(ii) The name and address of each creditor,
the nature of the debt, the amount of the debt and whether the
amount is estimated or exact, and when the debt is due. If provision
for payment of the debt has been made other than for full payment
in the proposed order of distribution, the following information
must be shown:
(a) The name of the person who will pay
the debt.
(b) The creditor’s written consent for
substitution or assumption of the debt by another person.
(c) The amount to be paid if the debt
has been compromised.
(d) The terms for payment and any
limitations on the liability of the person paying the debt.
(10) in an intestate estate, a statement that after the
exercise of reasonable diligence each petitioner is unaware of any
unrevoked wills or codicils;
(11) in a testate estate, a statement identifying all
unrevoked wills and codicils being presented for probate, and a
statement that each petitioner is unaware of any other unrevoked
will or codicil; and
(12) a schedule of proposed distribution of all probate
assets and the person to whom each asset is to be distributed.
(b) Service. The joinder in, or consent to, a petition for
summary administration is not required of a beneficiary who will
receive full distributive share under the proposed distribution. Any
beneficiary and any known or reasonably ascertainable creditor not
joining or consenting must receive formal notice of the petition.
(c) Testate Estate. In a testate estate, on the filing of the
petition for summary administration, the decedent’s will must be
proved and admitted to probate.
(d) Order. If the court determines that the decedent’s estate
qualifies for summary administration, it must enter an order
distributing the probate assets and specifically designating the
person to whom each asset is to be distributed.
Committee Notes
Verification and service of a petition for summary
administration 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 petition for summary administration on,
reasonably ascertainable creditors is substantive. Nothing in this
rule is intended to change the effect of the statutory amendments.
Rule History
1977 Revision: Changes to conform to 1975 statutory revision.
Established the requirements of a petition for summary
administration and provided for the hearing thereon and the entry
of the order of distribution of the assets.
1984 Revision: Extensive revisions and editorial changes.
Committee notes revised.
1988 Revision: Editorial change in caption of (a). Committee
notes revised.
1992 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
2002 Revision: Replaces “homestead” with “protected
homestead” in (a)(2) to conform to addition of term in section
731.201(29), Florida Statutes. Committee notes revised.
2003 Revision: Committee notes revised.
2005 Revision: Subdivision (a)(3) amended to include
requirements of section 735.206(2), Florida Statutes.
2007 Revision: Rule substantially rewritten to require petition
to include essentially the same information required to be stated in
a petition for administration and to require the petitioners to specify
facts showing they are entitled to summary administration. New
subdivision (b) added to provide for formal notice of the petition,
and subsequent subdivisions relettered.
2011 Revision: Subdivision (a)(2) amended to limit listing of
decedent’s social security number to last four digits.
2012 Revision: Committee notes revised.
2013 Revision: Subdivision (a)(9) reorganized to avoid the
misconception that a diligent search and reasonable inquiry for
known or reasonably ascertainable creditors is required when
creditor claims are barred. Committee notes revised. Editorial
changes to conform to the court’s guidelines for rules submissions
as set forth in AOSC06-14.
2014 Revision: Subdivision (a)(3) amended to provide only the
year of birth of a minor to conform to Fla. R. Gen. Prac. & Jud.
Admin. 2.425. Committee notes revised.
Statutory References
§ 731.104, Fla. Stat. Verification of documents.
§§ 735.201–735.2063, Fla. Stat. Summary administration.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.205(a)(3) Filing evidence of death.
Fla. R. Gen. Prac. & Jud. Admin. 2.420 Public access to
judicial branch records.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
filing of sensitive information.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
PART III — GUARDIANSHIP
RULE 5.540 cases. HEARINGS
(a) Application. All hearings under chapter 744 and under
section 393.12, Florida Statutes, shall be open unless the alleged
incapacitated person, adjudicated ward, or person alleged to have a
developmental disability elects to have the hearing closed.
(b) Election. An election to close a hearing may be made
before the hearing by filing a written notice. Subject to the court’s
approval, an election to close or reopen a hearing may be made at
any time during the hearing by oral or written motion.
Committee Notes
This rule permits an alleged incapacitated person, adjudicated
ward, 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.
Rule History
1991 Revision: New rule.
1992 Revision: Committee notes revised.
2008 Revision: Subdivision (a) amended to include persons
with a developmental disability. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.1095, Fla. Stat. Hearings.
§ 744.3085, Fla. Stat. Guardian advocates.
Rule Reference
Fla. Prob. R. 5.541 Recording of hearings.
RULE 5.541 cases. RECORDING OF HEARINGS
Electronic or stenographic recordings shall be made of all
hearings on the:
(a) adjudication of incapacity;
(b) appointment of a guardian;
(c) modification, termination, or revocation of the
adjudication of incapacity;
(d) restoration of capacity; or
(e) restoration of rights.
Committee Notes
This rule represents a rule implementation of the procedure
found in sections 744.109 and 744.3031, Florida Statutes. It is not
intended to change the effect of the statutes from which it is
derived, or to create a new procedure or modify an existing
procedure.
Rule History
1991 Revision: New rule.
1992 Revision: Editorial changes. Committee notes revised.
Citation form change in committee notes.
2003 Revision: Committee notes revised.
2008 Revision: New subdivision (e) added for proceedings
involving guardian advocates. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.109, Fla. Stat. Records.
§ 744.3031, Fla. Stat. Emergency temporary guardianship.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.3371, Fla. Stat. Notice of petition for appointment of
guardian and hearing.
RULE 5.550 cases. PETITION TO DETERMINE INCAPACITY
(a) Contents. The petition to determine incapacity shall be
verified by the petitioner and shall state:
(1) the name, age, and present address of the petitioner
and the petitioner’s relationship to the alleged incapacitated person;
(2) the name, age, county of residence, and present
address of the alleged incapacitated person, and specify the primary
language spoken by the alleged incapacitated person, if known;
(3) that the petitioner believes the alleged incapacitated
person to be incapacitated, the facts on which such belief is based,
and the names and addresses of all persons known to the petitioner
who have knowledge of such facts through personal observation;
(4) the name and address of the alleged incapacitated
person’s attending or family physician, if known;
(5) which rights the alleged incapacitated person is
incapable of exercising to the best of the petitioner’s knowledge;
and, if the petitioner has insufficient experience to make that
judgment, the petitioner shall so indicate;
(6) whether plenary or limited guardianship is sought
for the alleged incapacitated person;
(7) the names, relationships, and addresses of the next
of kin of the alleged incapacitated person, specifying the year of
birth of any who are minors, to the extent known to the petitioner;
and
(8) whether there are possible alternatives to
guardianship known to the petitioner, including, but not limited to,
trust agreements, powers of attorney, designations of health care
surrogates, or other advance directives, and if the petitioner is
seeking a guardianship, an explanation as to why the alternatives
are insufficient to meet the needs of the alleged incapacitated
person.
(b) Notice.
(1) Contents. The notice of filing the petition to
determine incapacity shall state:
(A) the time and place of the hearing to inquire
into the capacity of the alleged incapacitated person;
(B) that an attorney has been appointed to
represent such person; and
(C) that if the court determines that such person
is incapable of exercising any of the rights enumerated in the
petition a guardian may be appointed.
(2) Service on Alleged Incapacitated Person. The notice
and a copy of the petition to determine incapacity shall be
personally served by an elisor appointed by the court, who may be
the court appointed counsel for the alleged incapacitated person.
The elisor shall read the notice to the alleged incapacitated person,
but need not read the petition. A return of service shall be filed by
the elisor certifying that the notice and petition have been served on
and the notice read to the alleged incapacitated person. No
responsive pleading is required and no default may be entered for
failure to file a responsive pleading. The allegations of the petition
are deemed denied.
(3) Service on Others. A copy of the petition and the
notice shall also be served on counsel for the alleged incapacitated
person, and on all next of kin.
(c) Verified Statement. An interested person may file a
verified statement that shall state:
(1) that he or she has a good faith belief that the
alleged incapacitated person’s trust, trust amendment, or durable
power of attorney is invalid; and
(2) facts constituting a reasonable basis for that belief.
(d) Order. When an order determines that a person is
incapable of exercising delegable rights, it shall specify whether
there is an alternative to guardianship that will sufficiently address
the problems of the incapacitated person.
(e) Reports.
(1) Filing. Each member of the examining committee
must file his or her report with the clerk of the court within 15 days
after appointment.
(2) Service. Within 3 days after receipt of each
examining committee member’s report, the clerk shall serve the
report on the petitioner and the attorney for the alleged
incapacitated person by electronic mail delivery or United States
mail, and, upon service, shall file a certificate of service in the
incapacity proceeding. The petitioner and the attorney for the
alleged incapacitated person must be served with all reports at least
10 days before the hearing on the petition, unless the reports are
not complete, in which case the petitioner and attorney for the
alleged incapacitated person may waive the 10-day requirement and
consent to the consideration of the report by the court at the
adjudicatory hearing. If such service is not timely effectuated, the
petitioner or the alleged incapacitated person may move for a
continuance of the hearing.
(3) Objections. The petitioner and the alleged
incapacitated person may object to the introduction into evidence of
all or any portion of the examining committee members’ reports by
filing and serving a written objection on the other party no later
than 5 days before the adjudicatory hearing. The objection must
state the basis upon which the challenge to admissibility is made. If
an objection is timely filed and served, the court shall apply the
rules of evidence in determining the reports’ admissibility. For good
cause shown, the court may extend the time to file and serve the
written objection.
(f) Adjudicatory Hearing. Upon appointment of the
examining committee, the court shall set the date upon which the
petition will be heard. The adjudicatory hearing must be conducted
within at least 10 days, which time period may be waived, but no
more than 30 days after the filing of the last filed report of the
examining committee members, unless good cause is shown.
Committee Notes
Rule History
1980 Revision: Implements 1979 amendments to section
744.331, Florida Statutes.
1984 Revision: Change in title of rule. Editorial changes and
adds a provision for service of petition. Committee notes revised.
1988 Revision: Committee notes revised. Citation form
changes in committee notes.
1989 Revision by Ad Hoc Committee: The committee realized
that formal notice as defined in rule 5.040(a)(1) requires the
recipient of notice to file a responsive pleading within 20 days after
the service of the notice. The committee believed that to impose
such a requirement on the alleged incapacitated person would
contravene the legislative intent of the 1989 revisions to chapter
744, Florida Statutes. The committee observed that the time
required for appointment of mandatory appointed counsel might
render a responsive pleading within 20 days impossible for the
alleged incapacitated person. The committee concluded that,
procedurally, notice upon the alleged incapacitated person should
occur in the same manner as formal notice in rule 5.040, but the
required response under that rule should not be imposed upon the
alleged incapacitated person.
1991 Revision: Implements 1989 amendments to sections
744.3201 and 744.331, Florida Statutes, and 1990 technical
amendments.
1992 Revision: Citation form changes in committee notes.
2006 Revision: Subdivisions (c) and (d) added to incorporate
2006 amendment to section 744.441 and creation of section
744.462, Florida Statutes. Committee notes revised.
2014 Revision: Amends subdivision (a)(7) to conform with Fla.
R. Gen. Prac. & Jud. Admin. 2.425. Committee notes revised.
2016 Revision: Subdivision (a)(8) added to require the
disclosure of whether there are possible alternatives to
guardianship known to the petitioner. Committee notes revised.
2017 Revision: Adopts new subdivisions (e)(1)–(e)(3) to address
statutory changes in sections 744.331(3)(e), (3)(h), and (3)(i), Florida
Statutes, regarding filing, service, and objections to examining
committee members’ reports. Adopts new subdivision (f) to address
statutory changes regarding the timing of the adjudicatory hearing
in section 744.331(5)(a), Florida Statutes. Committee notes revised.
2020 Revision (September): Amends subdivision (a)(8) to
address the Judicial Management Council Guardianship
Workgroup Final Report dated June 15, 2018, Focus Area 1,
Recommendation 3, by requiring an explanation if there are less
restrictive alternatives to guardianship, but they are not sufficient
to meet the needs of the alleged incapacitated person. Committee
notes revised.
2020 Revision (December): Statutory references amended.
Statutory References
§ 709.2104, Fla. Stat. Durable power of attorney.
§ 709.2109, Fla. Stat. Termination or suspension of power of
attorney or agent’s authority.
§ 744.1012, Fla. Stat. Legislative intent.
§ 744.104, Fla. Stat. Verification of documents.
§ 744.3045, Fla. Stat. Preneed guardian.
§ 744.3115, Fla. Stat. Advance directives for health care.
§ 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 and hearing.
§ 744.441(1)(k), Fla. Stat. Powers of guardian upon court
approval.
§ 744.462, Fla. Stat. Determination regarding alternatives to
guardianship.
§ 765.102, Fla. Stat. Legislative intent and findings.
Rule References
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
existing guardianships.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.555 cases. GUARDIANSHIPS OF MINORS
(a) Application. This rule shall apply to any guardianship
for a minor.
(b) Petition to Determine Incapacity. No petition to
determine incapacity need be filed.
(c) Petition for Appointment of Guardian. The petition
shall be verified by the petitioner and shall state:
(1) the facts to establish venue;
(2) the petitioner’s residence and post office address;
(3) the name, age, and residence and post office
address of the minor;
(4) the names and addresses of the parents of the
minor and if none, the next of kin known to the petitioner;
(5) the name and residence and post office address of
the proposed guardian, and that the proposed guardian is qualified
to serve; or, that a willing and qualified guardian has not been
located;
(6) the proposed guardian’s relationship to and any
previous association with the minor, including listing any activities
designated in section 744.446(3), Florida Statutes;
(7) the reasons why the proposed guardian should be
appointed;
(8) the nature and value of the property subject to the
guardianship; and
(9) whether there are possible alternatives to
guardianship known to the petitioner, including but not limited to,
trust agreements, powers of attorney, surrogates, guardian
advocate under section 744.3085, Florida Statutes, or advance
directive and why those possible alternatives are insufficient to
meet the needs of the minor.
(d) Notice. Formal notice of the petition for appointment of
guardian shall be served on any parent who is not a petitioner or, if
there is no parent, on the persons with whom the minor resides and
on such other persons as the court may direct.
(e) Initial and Annual Guardianship Reports.
(1) The initial guardianship report shall consist only of
the verified inventory. The annual guardianship report shall consist
only of the annual accounting.
(2) The guardian shall file an initial and annual
guardianship plan as required by law.
(3) Unless otherwise ordered by the court or required
by law, the guardian need not serve a copy of the initial
guardianship report and the annual guardianship reports on the
ward.
(f) Inspection of Inventory or Accounting. Unless
otherwise ordered by the court for good cause shown, any
inventory, amended or supplementary inventory, or accounting is
subject to inspection only by the clerk, the ward or the ward’s
attorney, and the guardian or the guardian’s attorney.
Committee Notes
The provisions of chapter 744, Florida Statutes, and the
guardianship rules enacted in 1989 leave some uncertainty with
respect to the procedural requirements in guardianships for minors
who are not incapacitated persons. This rule is intended to address
only certain procedures with respect to the establishment and
administration of guardianships over minors. The committee
believes that certain provisions of the guardianship law and rules
apply to both guardianships of minors as well as guardianships of
incapacitated persons and no change has been suggested with
respect to such rules. Because no adjudication of a minor is
required by statute, it is contemplated that appointment of a
guardian for a minor may be accomplished without a hearing.
Initial and annual guardianship reports for minors have been
simplified where all assets are on deposit with a designated
financial institution under applicable Florida law.
Rule History
1991 Revision: New rule adopted to apply to guardianships
over minors who are not incapacitated persons.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
1996 Revision: Committee notes revised.
2000 Revision: Deletes requirement in subdivision (c) to report
social security number of proposed guardian.
2003 Revision: Deletes requirement in subdivision (c) to report
social security number of minor. Committee notes revised.
2006 Revision: Subdivision (e)(2) amended to conform to
requirement in sections 744.362(1) and 744.3675, Florida Statutes,
to file initial and annual guardianship plans. Subdivision (e)(3)
amended to eliminate requirement of service on ward unless
ordered by court or required by statute.
2014 Revision: Fla. R. Gen. Prac. & Jud. Admin. 2.425(b)(4) –
(5) provides exceptions for using the birth date of any minor
“whenever the birth date is necessary for the court to establish or
maintain subject matter jurisdiction,” as well as using the full name
in situations in which the “name of the minor in any order relating
to parental responsibility, time-sharing, or child support.”
Committee notes revised.
2020 Revision: Subdivision (c)(6) amended to include reference
to section 744.446, Florida Statutes, and subdivision (c)(9)
amended to conform to section 744.334, Florida Statutes, and the
list of alternatives to guardianships.
2021 Revision: Committee notes revised.
Statutory References
§ 69.031, Fla. Stat. Designated financial institutions for
property 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.
§ 744.3679, Fla. Stat. Simplified accounting procedures in
certain cases.
§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities;
court approval; breach of fiduciary duty.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.541 Recording of hearings.
Fla. Prob. R. 5.560 Petition for appointment of guardian of an
incapacitated person.
Fla. Prob. R. 5.620 Inventory.
Fla. Prob. R. 5.636 Settlement of minors’ claims.
Fla. Prob. R. 5.690 Initial guardianship report.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.552 cases. VOLUNTARY GUARDIANSHIP OF PROPERTY
(a) Petition for Appointment of Guardian. The petition for
voluntary guardianship shall be verified by the petitioner and shall
state:
(1) the facts to establish venue;
(2) the petitioner’s residence and post office address;
(3) that the petitioner although mentally competent is
incapable of the care, custody, and management of the petitioner’s
estate by reason of age or physical infirmity, and is voluntarily
petitioning to have a guardian of the petitioner’s property
appointed;
(4) whether the guardianship shall apply to all of the
petitioner’s property or less than all of the petitioner’s property; and
if less than all of the petitioner’s property, the specific property to
which the guardianship is to apply;
(5) the name and residence and post office address of
any proposed guardian;
(6) that the proposed guardian is qualified to serve or
that a willing and qualified proposed guardian has not been located;
and
(7) the names and post office addresses of persons to
whom the petitioner requests that notice of the hearing for the
appointment of the guardian, and any petition for authority to act,
be given.
(b) Certificate of Licensed Physician. The petition shall be
accompanied by a certificate of a licensed physician as required by
law.
(c) Notice of Hearing. Notice of hearing on the petition for
appointment, and any petition for authority to act, shall be given to
the ward and any person to whom the ward requests notice be
given, which request can be made in the petition for appointment or
a subsequent written request for notice signed by the ward.
(d) Annual Report. The annual report shall be accompanied
by a certificate from a licensed physician as required by law.
(e) Termination. The ward may terminate a voluntary
guardianship by filing a notice of termination. Copies of the notice
shall be served on all interested persons. The guardian shall file a
petition for discharge in accordance with these rules.
Committee Notes
Rule History
2003 Revision: New rule.
2006 Revision: New (d) added to incorporate 2006 amendment
to section 744.341, Florida Statutes, requiring inclusion of
physician’s certificate in annual report, and subsequent subdivision
relettered. Committee notes revised.
Statutory Reference
§ 744.341, Fla. Stat. Voluntary guardianship.
Rule Reference
Fla. Prob. R. 5.680 Termination of guardianship.
Fla. Prob. R. 5.695 Annual guardianship report.
RULE 5.560 cases. PETITION FOR APPOINTMENT OF GUARDIAN OF
AN INCAPACITATED PERSON
(a) Contents. The petition shall be verified by the petitioner
and shall state:
(1) the facts to establish venue;
(2) the petitioner’s residence and post office address;
(3) the name, age, and residence and post office
address of the alleged incapacitated person;
(4) the nature of the incapacity, the extent of
guardianship, either limited or plenary, requested for the alleged
incapacitated person, and the nature and value of property subject
to the guardianship;
(5) the names and addresses of the next of kin of the
alleged incapacitated person known to the petitioner;
(6) the name and residence and post office address of
the proposed guardian, and that the proposed guardian is qualified
to serve, or that a willing and qualified guardian has not been
located;
(7) the proposed guardian’s relationship to and any
previous association with the alleged incapacitated person,
including listing any activities designated in section 744.446(3),
Florida Statutes;
(8) the reasons why the proposed guardian should be
appointed;
(9) whether the petitioner has knowledge, information,
or belief that there are possible alternatives to guardianship known
to the petitioner, including, but not limited to, trust agreements,
powers of attorney, designations of health care surrogates, guardian
advocate under section 744.3085, Florida Statutes, or other
advance directives, and if there are possible alternatives to
guardianship, an explanation as to why the alternatives are
insufficient to meet the needs of the alleged incapacitated person;
(10) whether the petitioner has knowledge, information,
or belief that the alleged incapacitated person has a preneed
guardian designation; and
(11) if the proposed guardian is a professional guardian,
a statement that the proposed guardian has complied with the
registration requirements of section 744.2002, Florida Statutes.
(b) Notice. Notice of filing the petition for appointment of
guardian may be served as a part of the notice of filing the petition
to determine incapacity, but shall be served a reasonable time
before the hearing on the petition or other pleading seeking
appointment of a guardian.
(c) Service on Public Guardian. If the petitioner requests
appointment of the public guardian, a copy of the petition and the
notice shall be served on the public guardian.
Committee Notes
Rule History
1975 Revision: Substantially the same as section 744.334,
Florida Statutes, expanded to include provisions of section 744.302,
Florida Statutes, and section 744.312, Florida Statutes, by
reference.
1977 Revision: Change in committee notes to conform to
statutory renumbering.
1980 Revision: Implements 1979 amendment to section
744.334, Florida Statutes.
1984 Revision: Combines rule 5.560 and part of prior rule
5.570. Editorial changes and committee notes revised.
1988 Revision: Editorial changes. Committee notes revised.
Citation form changes in committee notes.
1989 Revision by Ad Hoc Committee: Subdivision (a)(4) of the
former rule has been deleted altogether because the date and court
of adjudication will probably not be known at the time of filing the
petition for the appointment since petition for appointment will
henceforth be filed contemporaneously with the petition to
determine incapacity.
1991 Revision: Implements 1989 amendments to sections
744.334 and 744.331(1), Florida Statutes, and 1990 technical
amendments. Subdivision (c)(1) deleted because rule 5.555(d)
addresses service on parents.
1992 Revision: Citation form changes in committee notes.
1996 Revision: Deletes requirement in subdivision (a) to report
social security number of alleged incapacitated person. Adds
provision to subdivision (b) for notice before hearing when petition
is not served simultaneously with petition to determine incapacity.
2000 Revision: Deletes requirement in subdivision (a) to report
social security number of proposed guardian.
2003 Revision: Committee notes revised.
2006 Revision: New (a)(9) added to incorporate 2006 passage
of section 744.462, Florida Statutes. Subdivision (a)(10) added to
implement section 744.1083, Florida Statutes. Committee notes
revised.
2014 Revision: Fla. R. Gen. Prac. & Jud. Admin. 2.425(b)(4) –
(5) provides exceptions for using the birth date of any minor
“whenever the birth date is necessary for the court to establish or
maintain subject matter jurisdiction,” as well as using the full name
in situations in which the “name of the minor in any order relating
to parental responsibility, time-sharing, or child support.”
Committee notes revised.
2016 Revision: Subdivision (a)(9) revised to require the
disclosure of whether there are possible alternatives to
guardianship known to the petitioner. Committee notes revised.
2016 Revision: Subdivision (a)(10) amended to reflect the
renumbering of the statute from section 744.1083 to section
744.2002, Florida Statutes. Committee notes revised to update
statutory references.
2020 Revision (September): Amends subdivision (a)(9) to
address the Judicial Management Council Guardianship
Workgroup Final Report dated June 15, 2018, Focus Area 1,
Recommendation 3, by requiring an explanation if there are less
restrictive alternatives to guardianship, but they are not sufficient
to meet the needs of the alleged incapacitated person. Adds a new
subdivision (a)(10) to address the Judicial Management Council
Guardianship Workgroup Final Report dated June 15, 2018, Focus
Area 1, Recommendation 4, by requiring a statement of the
petitioner’s knowledge of any preneed guardian designation.
Committee notes revised.
2020 Revision (December): Subdivision (a)(7) amended to
include reference to section 744.446, Florida Statutes, and
subdivision (a)(9) amended to conform to section 744.334, Florida
Statutes, and the list of alternatives to guardianships.
Statutory References
§ 709.2104, Fla. Stat. Durable power of attorney.
§ 709.2109, Fla. Stat. Termination or suspension of power of
attorney or agent’s authority.
§ 744.2002, Fla. Stat. Professional guardian registration.
§ 744.2005, Fla. Stat. Order of appointment.
§ 744.2006, Fla. Stat. Office of public guardian; appointment,
notification.
§ 744.3045, Fla. Stat. Preneed guardian.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.309, Fla. Stat. Who may be appointed guardian of a
resident ward.
§ 744.3115, Fla. Stat. Advance directives for health care.
§ 744.312, Fla. Stat. Considerations in appointment of
guardian.
§ 744.3201, Fla. Stat. Petition to determine incapacity.
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.334, Fla. Stat. Petition for appointment of guardian or
professional guardian; contents.
§ 744.3371(1), Fla. Stat. Notice of petition for appointment of
guardian and hearing.
§ 744.341, Fla. Stat. Voluntary guardianship.
§ 744.446 Fla. Stat. Conflict of interest; prohibited activities;
court approval; breach of fiduciary duty.
§ 744.462, Fla. Stat. Determination regarding alternatives to
guardianship.
§ 765.102, Fla. Stat. Legislative intent and findings.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.550 Petition to determine incapacity.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.590 cases. APPLICATION FOR APPOINTMENT AS
GUARDIAN; DISCLOSURE STATEMENT; FILING
(a) Individual Applicants.
(1) The application for appointment shall contain:
(A) the applicant’s qualifications to serve as a
guardian, including a statement indicating whether the applicant
has ever been (i) arrested or (ii) convicted of a felony, even if the
record of such arrest or conviction has been expunged, unless the
expunction was ordered pursuant to section 943.0583, Florida
Statutes; and
(B) the names of all wards who are adults and the
initials of any ward who is a minor for whom the applicant is then
acting as guardian, the court file number and circuit court in which
each case is pending, and a statement as to whether the applicant
is acting as a limited or plenary guardian of the person or property,
or both, of each ward.
(2) The application for appointment shall be filed and
served a reasonable time before the hearing on the appointment of a
guardian.
(b) Nonprofit Corporate Guardians.
(1) No application for appointment shall be required of
a nonprofit corporate guardian.
(2) A disclosure statement shall contain:
(A) the corporation’s qualifications to serve as a
guardian; and
(B) the names of all wards who are adults and the
initials of any ward who is a minor for whom the corporation is then
acting as guardian, the court file number and circuit court in which
each case is pending, and a statement as to whether the
corporation is acting as a limited or plenary guardian of the person
or property, or both, of each ward.
(3) The disclosure statement of a nonprofit corporate
guardian shall be filed quarterly with the clerk of the court for each
circuit in which the corporation has been appointed, or is seeking
appointment, as guardian.
(c) For Profit Corporations and Associations. No
application for appointment or disclosure statement shall be
required of any for profit corporation or association authorized to
exercise fiduciary powers under Florida law.
(d) Public Guardians. No application for appointment or
disclosure statement shall be required of a public guardian.
Committee Notes
Rule History
1988 Revision: Prior rule deleted; text of rule moved to rule
5.650.
1989 Revision: Rule reactivated with different title and text.
1991 Revision: Implements 1989 and 1990 amendments to
section 744.3125, Florida Statutes.
1992 Revision: Citation form change in committee notes.
1996 Revision: Adds filing and service provisions consistent
with rule 5.560. Corrects reference to corporations qualified to
exercise fiduciary powers. Editorial changes. Adds statutory
references.
2003 Revision: Committee notes revised.
2006 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
2014 Revision: Amends subdivisions (a)(1)(B) and (b)(1)(B) to
conform to Fla. R. Gen. Prac. & Jud. Admin. 2.425. Creates a rule
reference. Committee notes revised.
2014 Revision: Amends subdivision (a)(1)(A) to conform to
sections 744.309(3), 943.0583, and 943.0585, Florida Statutes.
Committee notes revised.
Statutory References
§ 393.063(17), Fla. Stat. Definitions.
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.102(4), (9), (11), (14), (22) Fla. Stat. Definitions.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.309, Fla. Stat. Who may be appointed guardian of a
resident ward.
§ 744.3125, Fla. Stat. Application for appointment.
§ 744.331(1), Fla. Stat. Procedures to determine incapacity.
§ 744.3371, Fla. Stat. Notice of petition for appointment of
guardian and hearing.
§ 943.0583, Fla. Stat. Human trafficking victim expunction.
§ 943.0585, Fla. Stat. Court-ordered expunction of criminal
history records.
Rule References
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.600 cases. OATH
Every guardian or emergency temporary guardian shall take
an oath to perform faithfully the duties of guardian or emergency
temporary guardian before exercising such authority. The oath may
be incorporated in the petition for appointment of guardian, or
petition for appointment of emergency temporary guardian, if
verified by the prospective guardian.
Committee Notes
Rule History
1977 Revision: Change in committee notes to conform to
statutory renumbering. Rule permits oath of guardian to be
incorporated in petition for appointment and in designation of
resident agent.
1984 Revision: Editorial change and deletes genders.
1989 Revision: Prior rule adopted as temporary emergency
rule.
1991 Revision: Permits oath to be incorporated in application
for appointment of guardian, adds reference to temporary
emergency guardian, and makes editorial change.
1992 Revision: Editorial changes.
2008 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.347, Fla. Stat. Oath of guardian.
RULE 5.610 cases. EXECUTION BY GUARDIAN
The guardian shall sign the:
(a) initial guardianship plan;
(b) inventory, amended inventory, or supplemental
inventory;
(c) annual guardianship plan;
(d) annual accounting;
(e) guardian’s petition for court approval required by law;
(f) petition for discharge;
(g) final report; and
(h) resignation of guardian.
Committee Notes
Rule History
1975 Revision: Rule lists what guardian shall sign and
includes any petition for court approval required by section
744.441, Florida Statutes. The rule requires that the guardian have
actual knowledge of the more important steps and acts of
administration.
1977 Revision: Change in statutory reference in rule and in
committee note to conform to statutory renumbering.
1988 Revision: Editorial changes. Committee notes revised.
Citation form changes in rule and committee notes.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Changes to conform to 1989 and 1990
revisions to guardianship law. Adds additional documents to be
signed by the guardian. Statutory references added.
2003 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 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.
§ 744.387, Fla. Stat. Settlement of claims.
§ 744.441, Fla. Stat. Powers of guardian upon court approval.
§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities;
court approval; breach of fiduciary duty.
§ 744.447, Fla. Stat. Petition for authorization to act.
§ 744.451, Fla. Stat. Order.
§ 744.467, Fla. Stat. Resignation of guardian.
§ 744.511, Fla. Stat. Accounting upon removal.
§ 744.521, Fla. Stat. Termination of guardianship.
§ 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; hearing.
§ 744.534, Fla. Stat. Disposition of unclaimed funds held by
guardian.
RULE 5.620 cases. INVENTORY
(a) Inventory. Within 60 days after issuance of letters, the
guardian of the property shall file a verified inventory as required by
law. All property not in the guardian’s possession as of the date the
inventory is filed shall be so identified.
(b) Amended or Supplemental Inventory. If the guardian
of the property learns of any property not included in the inventory,
or learns that the description in the inventory is inaccurate, the
guardian shall, within 30 days of this discovery, file a verified
amended or supplemental inventory showing the change.
(c) Substantiating Documents. Unless ordered by the
court, the guardian need not file the documents substantiating the
inventory. Upon reasonable written request, the guardian of the
property shall make the substantiating documents available for
examination to those persons entitled to receive or inspect the
inventory.
(d) Safe-Deposit Box Inventory. If the ward has a safe-
deposit box, a copy of the safe-deposit box inventory shall be filed
as part of the verified inventory.
(e) Guardian Advocates. This rule shall apply to a guardian
advocate to the extent that the guardian advocate was granted
authority over the property of the person with a developmental
disability.
Committee Notes
Rule History
1977 Revision: Change in committee notes to conform to
statutory renumbering.
1984 Revision: Change to require inventory to be filed within
60 days after issuance of letters, rather than after appointment.
Committee notes revised.
1988 Revision: Editorial changes. Committee notes revised.
Citation form change in committee notes.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Former rule 5.620(b) has been deleted as partly
substantive and addressed in section 744.381, Florida Statutes,
and the procedural part is unnecessary.
The committee recognizes the conflict between this rule and
section 744.362, Florida Statutes, which requires the filing of the
initial guardianship report (which includes the inventory) within 60
days after appointment. The committee believes this provision,
which attempts to regulate when a paper must be filed with the
court, is procedural and that a guardian may not receive letters of
guardianship empowering the guardian to act contemporaneously
with the appointment. Therefore, the issuance of letters is a more
practical time from which to measure the beginning of the time
period for the accomplishment of this act.
1992 Revision: Citation form changes in committee notes.
2005 Revision: Editorial changes in (d).
2007 Revision: Committee notes revised.
2008 Revision: Adds reference to guardian advocate in new (e).
Committee notes revised.
2012 Revision: Committee notes revised.
2016 Revision: Subdivision (c) revised to substitute
“documents” for “papers.”
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.362, Fla. Stat. Initial guardianship report.
§ 744.365, Fla. Stat. Verified inventory.
§ 744.3701, Fla. Stat. Inspection of report.
§ 744.381, Fla. Stat. Appraisals.
§ 744.384, Fla. Stat. Subsequently discovered or acquired
property.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.041 Service of pleadings and documents.
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.
Fla. Prob. R. 5.690 Initial guardianship report.
Fla. Prob. R. 5.700 Objection to guardianship reports.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.625 cases. NOTICE OF COMPLETION OF GUARDIAN
EDUCATION REQUIREMENTS
(a) Filing. Unless the guardian education requirement is
waived by the court, each guardian, other than a professional
guardian, shall file with the court within 4 months after the
issuance of letters of guardianship or letters of guardian advocacy a
notice of completion of guardian education requirements.
(b) Content. The notice shall state:
(1) that the guardian has completed the required
number of hours of course instruction and training covering the
legal duties and responsibilities of a guardian, the rights of a ward,
the availability of local resources to aid a ward, and the preparation
of habilitation plans and annual guardianship reports, including
accountings;
(2) the date the course was completed;
(3) the name of the course completed; and
(4) the name of the entity or instructor that taught the
course.
(c) Verification. The notice shall be verified by the guardian.
Committee Notes
Rule History
2005 Revision: New rule.
2006 Revision: Subdivision (a) amended to conform to 2006
amendment to section 744.3145(4), Florida Statutes.
2008 Revision: Adds reference in (a) to guardian advocacy.
Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.3145, Fla. Stat. Guardian education requirements.
RULE 5.630 cases. PETITION FOR APPROVAL OF ACTS
(a) Contents. When authorization or confirmation of any act
of the guardian is required under sections 744.422 or 744.441,
Florida Statutes, application must be made by verified petition
stating the facts showing:
(1) the expediency or necessity for the action;
(2) a description of any property involved;
(3) the price and terms of any sale, mortgage, or other
contract;
(4) whether the ward has been adjudicated
incapacitated to act with respect to the rights to be exercised;
(5) whether the action requested conforms to the
guardianship plan; and
(6) the basis for the relief sought.
(b) Notice. No notice of a petition to authorize sale of
perishable personal property or of property rapidly deteriorating is
required. Notice of a petition to perform any other act requiring a
court order must be given to the ward, to the next of kin, if any, and
to those persons who have filed requests for notices and copies of
pleadings.
(c) Order.
(1) If the act is authorized or confirmed, the order must
describe the permitted act and authorize the guardian to perform it
or confirm its performance.
(2) If a sale or mortgage is authorized or confirmed, the
order must describe the property. If a sale is to be private, the order
must specify the price and the terms of the sale. If a sale is to be
public, the order must state that the sale will be made to the
highest bidder and that the court reserves the right to reject all
bids.
(3) If the guardian is authorized to bring an action to
contest the validity of all or part of a revocable trust, the order must
contain a finding that the action appears to be in the ward’s best
interests during the ward’s probable lifetime. If the guardian is not
authorized to bring such an action, the order must contain a
finding concerning the continued need for a guardian and the
extent of the need for delegation of the ward’s rights.
Committee Notes
Rule History
1975 Revision: Substantially the same as sections 744.503,
744.447, and 744.451, Florida Statutes, with editorial changes.
1977 Revision: Change in statutory reference in rule and in
committee note to conform to statutory renumbering.
1980 Revision: Implements 1979 amendment to section
744.447(2), Florida Statutes.
1988 Revision: Editorial changes; captions added to
subdivisions. Committee notes revised. Citation form changes in
rule and committee notes.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Changes to conform to 1989 revised
guardianship law.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
2006 Revision: New (a)(6) added to incorporate 2006
amendment to section 744.441, Florida Statutes. New (c)(3) added
to reflect passage of 2006 amendment to section 737.2065, Florida
Statutes. Committee notes revised.
2007 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
2020 Revision: Subdivision (a)(2) is created to address section
744.441(2), Florida Statutes, and the contents of a petition for court
approval for a guardian to sign an order not to resuscitate.
Subdivision (d) is created to include the procedure for a hearing
pursuant to section 744.441(2), Florida Statutes.
2023 Revision: Subdivisions (a)(2) and (d) were deleted as
section 744.441(2), Florida Statutes was repealed. Reference to
section 744.422, Florida Statutes, was added to subdivision (a) to
address its enactment.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 736.0207, Fla. Stat. Trust contests.
§ 744.3215, Fla. Stat. Rights of persons determined
incapacitated.
§ 744.422, Fla. Stat. Petition for support for a dependent adult
child.
§ 744.441, Fla. Stat. Powers of guardian upon court approval.
§ 744.447, Fla. Stat. Petition for authorization to act.
§ 744.451, Fla. Stat. Order.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.636 Settlement of minors’ claims.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.631 cases. PETITION FOR APPROVAL BY PROFESSIONAL
GUARDIAN FOR ORDER NOT TO RESUSCITATE
OR TO WITHHOLD LIFE-PROLONGING
PROCEDURES
(a) Contents.
(1) When authorization for any act of the professional
guardian is required under section 744.4431, Florida Statutes,
application must be made by verified petition stating the facts
showing:
(A) a description of the proposed action or
decision for which court approval is sought;
(B) documentation of the authority of the
professional guardian to make health care decisions on behalf of
the ward;
(C) a statement regarding any known objections to
the relief sought;
(D) a description of the ward’s known wishes,
including all advance directives executed by the ward, or, if there is
no indication of the ward’s wishes, a description of why the relief
sought is in the best interests of the ward;
(E) a description of exigent circumstances that
exist which necessitate immediate relief; and
(F) a description of the circumstances requiring
the proposed action or decision, which must include supporting
documents that are consistent with sections 765.305, 765.401(3),
or 765.404, Florida Statutes.
(b) Notice. Notice of the petition and of any hearing must be
served on the ward, the ward’s attorney, if any, the ward’s next of
kin, and any other interested persons which includes persons who
have filed requests for notices and copies of pleadings. The
provision of notice may be waived by the court.
(c) Hearing.
(1) The court must hold a hearing if:
(A) the ward or the ward’s attorney, if any, objects
to the petition;
(B) the ward’s next of kin or an interested person
objects for any reason authorized by section 765.105(1), Florida
Statutes;
(C) the professional guardian, the ward, or the
ward’s attorney, if any, requests a hearing; or
(D) the petition has insufficient information for the
court to make a determination.
(2) On a showing a hearing is required and exigent
circumstances exist, a preliminary hearing on the petition must be
held with 72 hours of filing. At the conclusion of the hearing, the
court must rule on the petition or set it for an evidentiary hearing
within 4 days.
(d) Order.
(1) If the petition is granted, the order must describe
the permitted act and authorize the professional guardian to
perform the act.
(2) If the petition is denied, the order must state the
reasons for the denial.
Committee Notes
Rule History
2023 Revision: Rule adopted to address the enactment of
section 744.4431, Florida Statutes.
Statutory References
§ 744.4431, Fla. Stat. Guardianship power regarding life-
prolonging procedures.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.635 cases. PETITION FOR EXTRAORDINARY AUTHORITY
(a) Contents. When authorization for extraordinary
authority is sought as permitted by law, application shall be made
by verified petition stating:
(1) the petitioner’s interest in the proceeding;
(2) the specific authority requested; and
(3) the facts constituting the basis for the relief sought
and that the authority being requested is in the best interest of the
ward.
(b) Notice.
(1) The petition shall be served by formal notice. For
good cause shown, the court may shorten the time for response to
the formal notice and may set an expedited hearing.
(2) The petition shall be served on the guardian of the
person, if the guardian is not the petitioner, the ward, the next of
kin, if any, those interested persons who have filed requests for
notices and copies of pleadings, and such other persons as the
court may direct.
(c) Hearing. The hearing shall be at a time and place that
will enable the ward to express the ward’s views to the court.
Committee Notes
Rule History
1991 Revision: New rule.
1992 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.3215(4), Fla. Stat. Rights of persons determined
incapacitated.
§ 744.3725, Fla. Stat. Procedure for extraordinary authority.
RULE 5.636 cases. SETTLEMENT OF MINORS’ CLAIMS
(a) Time of Settlement. Claims on behalf of minors may be
settled either before or after an action is filed.
(b) Petition. The petition for approval of a settlement shall
contain:
(1) the initials, residence address, and the year of birth
of the minor;
(2) the name and address of any guardian appointed
for the minor;
(3) the name and residence address of the natural
guardians or other persons having legal custody of the minor;
(4) a statement disclosing the interests of any natural
or court-appointed guardian whose interest may be in conflict with
that of the minor;
(5) a description of the cause of action in which the
minor’s interest arises;
(6) a summary of the terms of the proposed settlement;
and
(7) copies of all agreements, releases, or other
documents to be executed on behalf of the minor.
(c) Notice. Notice of the petition shall be given to the court-
appointed guardians for the minor, to the natural guardians or
other persons with legal custody of the minor, to the minor if age 14
or older, and to the minor’s next of kin if required by the court.
(d) Guardian Ad Litem. The court shall appoint a guardian
ad litem on behalf of a minor, without bond or notice, with respect
to any proposed settlement that equals or exceeds $50,000 and
affects the interests of the minor, if:
(1) there is no court-appointed guardian of the minor;
(2) the court-appointed guardian may have an interest
adverse to the minor; or
(3) the court determines that representation of the
minor’s interest is otherwise inadequate.
(e) Valuation of Proposed Settlement. A proposed
settlement is deemed to equal or exceed $50,000 if the gross
amount payable equals or exceeds $50,000, without reduction to
reflect present value or fees and costs.
(f) Report. A guardian ad litem appointed with respect to a
proposed settlement affecting the interests of a minor shall, not
later than 5 days prior to the hearing on a petition for order
authorizing settlement, file and serve a report indicating the
guardian ad litem’s determination regarding whether the proposed
settlement will be in the best interest of the minor. The report shall
include:
(1) a statement of the facts of the minor’s claim and the
terms of the proposed settlement, including any benefits to any
persons or parties with related claims;
(2) a list of the persons interviewed and documents
reviewed by the guardian ad litem in evaluating the minor’s claim
and proposed settlement; and
(3) the guardian ad litem’s analysis of whether the
proposed settlement will be in the best interest of the minor.
A copy of the report shall be served on those persons on whom
service is required in subdivision (c) of this rule.
Committee Notes
When a civil action is pending, the petition for approval of
settlement should be filed in that civil action. In all other
circumstances, the petition for approval of settlement should be
filed in the same court and assigned to a judge who would preside
over a petition for appointment of guardian of a minor.
The total settlement to be considered under subdivisions (d)
and (e) is not limited to the amounts received only by the minor, but
includes all settlement payments or proceeds received by all parties
to the claim or action. For example, the proposed settlement may
have a gross value of $60,000, with $30,000 payable to the minor
and $30,000 payable to another party. In that instance the total
proposed settlement exceeds $50,000. Further, the “gross amount
payable” under subdivision (e) is the total sum payable, without
reducing the settlement amount by fees and costs that might be
paid from the proceeds of the settlement. For example, if the
proposed settlement is $60,000 but $20,000 of that sum will be
paid to the attorneys representing the minor’s interest in the action,
the “gross amount payable” still exceeds $50,000. Likewise, the
“gross amount payable” cannot be reduced to reflect the present
value of the proposed settlement on behalf of the minor.
Rule History
1992 Revision: New rule.
2003 Revision: Committee notes revised.
2006 Revision: Amended to reflect 2006 passage of new
section 744.3025, Claims of Minors, increasing dollar figure from
$25,000 to $50,000 as threshold amount requiring appointment of
guardian ad litem if interests of minor are not otherwise adequately
represented. Committee notes revised.
2014 Revision: Amends subdivision (b)(1) to conform to Fla. R.
Gen. Prac. & Jud. Admin. 2.425. Committee notes revised.
2019 Revision: Amends subdivisions (d) and (e) to eliminate
inconsistency with section 744.3025, Florida Statutes. Committee
notes revised.
Statutory References
§ 744.3025, Fla. Stat. Claims of minors.
§ 744.387, Fla. Stat. Settlement of claims.
§ 744.391, Fla. Stat. Actions by and against guardian or ward.
§ 744.441, Fla. Stat. Powers of guardian upon court approval.
§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities;
court approval; breach of fiduciary duty.
§ 744.447, Fla. Stat. Petition for authorization to act.
§ 768.23, Fla. Stat. Protection of minors and incompetents.
§ 768.25, Fla. Stat. Court approval of settlements.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.042 Time.
Fla. Prob. R. 5.120 Administrator ad litem and guardian ad
litem.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.630 Petition for approval of acts.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.640 cases. CONTINUANCE OF UNINCORPORATED BUSINESS
OR VENTURE OF WARD
(a) Continuance of Business. When the ward is adjudicated
incapacitated while engaged in any unincorporated business or
venture, or the court finds that a person with a developmental
disability lacks capacity to manage an unincorporated business or
venture, the court may authorize the guardian to continue the
business or venture for a reasonable time under the supervision of
the court.
(b) Petition. Before an order is made under subdivision (a),
the guardian shall file a verified petition, alleging sufficient facts to
make it appear that it is in the best interest of the ward’s estate to
continue the business or venture.
(c) Order. The order authorizing the continuance of the
business or venture may empower the guardian to make contracts
necessary to conduct the business or venture and to incur debts
and pay out money in the proper conduct of the business or
venture. The net profits only of the business or venture are to be
added to the assets of the ward’s estate.
(d) Accounts and Reports. In the conduct of the business
or venture, the guardian shall keep full and accurate accounts of all
receipts and expenditures and make reports as the court requires.
(e) Discontinuance of Business. Any person interested in
the ward’s estate may at any time petition the court for an order
requiring the guardian to discontinue and to wind up the business
or venture, and the court, after notice to the guardian, shall enter
such order thereon as is in the best interest of the ward’s estate.
Committee Notes
Rule History
1975 Revision: Implements section 744.441(16), Florida
Statutes. The rule is patterned after rule 5.350 pertaining to the
continuation of a business of a decedent by a personal
representative.
1977 Revision: No change in rule. Change in committee note
to conform to statutory renumbering.
1988 Revision: Change in title of rule; captions added to
subdivisions. Committee notes revised. Citation form changes in
committee notes.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Editorial changes in (a), (b), and (e).
1992 Revision: Citation form changes in committee notes.
2008 Revision: Subdivision (a) amended to include persons
with a developmental disability. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.441(13), Fla. Stat. Powers of guardian upon court
approval.
§ 744.447, Fla. Stat. Petition for authorization to act.
Rule Reference
Fla. Prob. R. 5.350 Continuance of unincorporated business or
venture.
RULE 5.645 cases. MANAGEMENT OF PROPERTY OF NONRESIDENT
WARD BY FOREIGN GUARDIAN
(a) Petition. A guardian of the property of a nonresident
ward, duly appointed by a court of another state, territory, or
country, who desires to manage any part or all of the property of
the ward located in this state, may file a verified petition for
authority to manage the property. The petition shall state:
(1) the circumstances of the guardian’s appointment;
(2) a description of the property and its estimated
value; and
(3) the indebtedness, if any, existing against the ward
in this state.
(b) Designation of Resident Agent. The guardian shall
designate a resident agent as required by these rules.
(c) Oath. The guardian shall file an oath as required by
these rules.
(d) Filing of Authenticated Copies. The guardian shall file
authenticated copies of:
(1) letters of guardianship or other authority to act as
guardian; and
(2) bond or other security, if any.
(e) Order. The court shall determine if the foreign bond or
other security is sufficient to guarantee the faithful management of
the ward’s property in this state. The court may require a new
guardian’s bond in this state in an amount it deems necessary. The
order shall authorize the guardian to manage the property and shall
specifically describe the property.
Committee Notes
Rule History
2007 Revision: New rule.
Statutory References
§ 744.306, Fla. Stat. Foreign guardians.
§ 744.307, Fla. Stat. Foreign guardian may manage the
property of nonresident ward.
Rule References
Fla. Prob. R. 5.110 Address designation for personal
representative or guardian; designation of resident agent and
acceptance.
Fla. Prob. R. 5.600 Oath.
RULE 5.646 cases. STANDBY GUARDIANS
(a) Petition for Appointment of Standby Guardian for
Minor.
(1) Contents. A minor’s guardian or the natural
guardians of a minor may petition for the appointment of a standby
guardian of the person or property of the minor. The petition shall
be verified by the petitioner and shall state:
(A) the facts to establish venue;
(B) the petitioner’s residence and post office
address;
(C) the name, age, and residence and post office
address of the minor;
(D) the names and addresses of the parents of the
minor and, if none, the next of kin known to the petitioner;
(E) the name and residence and post office
address of the proposed standby guardian, and that the proposed
standby guardian is qualified to serve;
(F) the proposed standby guardian’s relationship
to and any previous association with the minor;
(G) the reasons why the proposed standby
guardian should be appointed; and
(H) the nature and value of the property subject to
the guardianship.
(2) Notice and Waiver of Notice. Notice of the hearing on
the petition must be served on the parents, natural or adoptive, of
the minor and on any guardian for the minor. Notice may be waived
by those required to receive notice or by the court for good cause.
(b) Petition for Appointment of Standby Guardian for
Incapacitated Person.
(1) Contents. A currently serving guardian may petition
for the appointment of a standby guardian of the person or property
of an incapacitated person. The petition shall be verified by the
petitioner and shall state:
(A) the petitioner’s residence and post office
address;
(B) the name, age, and residence and post office
address of the incapacitated person;
(C) the nature of the incapacity, the extent of
guardianship, either limited or plenary, and the nature and value of
property subject to the guardianship;
(D) the names and addresses of the next of kin of
the incapacitated person known to the petitioner;
(E) the name and residence and post office
address of the proposed standby guardian, and that the proposed
standby guardian is qualified to serve;
(F) the proposed standby guardian’s relationship
to and any previous association with the incapacitated person; and
(G) the reasons why the proposed standby
guardian should be appointed.
(2) Notice. Notice of the hearing on the petition must be
served on the incapacitated person’s next of kin.
(c) Petition for Confirmation.
(1) Contents. A standby guardian, not later than 20
days after the assumption of duties as guardian, shall petition for
confirmation of appointment. The petition shall be verified by the
petitioner and shall state:
(A) the petitioner’s residence and post office
address;
(B) the name, age, and residence and post office
address of the adult incapacitated person or initials, year of birth,
and residence address of minor;
(C) the nature of the incapacity, the extent of
guardianship, either limited or plenary, and the nature and value of
property subject to the guardianship;
(D) the names and addresses of the next of kin of
the incapacitated person or minor known to the petitioner;
(E) the name and residence and post office
address of the proposed guardian, and that the proposed guardian
is qualified to serve;
(F) the proposed guardian’s relationship to and
any previous association with the incapacitated person or minor;
(G) the reasons why appointment of the proposed
guardian should be confirmed; and
(H) if the proposed guardian is a professional
guardian, a statement that the proposed guardian has complied
with the educational requirements of section 744.2002, Florida
Statutes.
(2) Service. The petition for confirmation and notice of
hearing shall be served on the incapacitated person’s next of kin a
reasonable time before the hearing on the petition or other pleading
seeking confirmation of the guardian.
Committee Notes
The standby guardian must file an oath pursuant to rule
5.600 before commencing the exercise of authority as guardian.
Prior to appointment, the standby guardian must file an application
pursuant to rule 5.590.
Section 393.12(10), Florida Statutes, provides that a guardian
advocate shall have all of the duties, responsibilities, and powers of
a guardian under Chapter 744, Florida Statutes. However, section
744.304 authorizes the appointment of a standby guardian only for
a minor or incapacitated person.
Rule History
2006 Revision: New rule.
2008 Revision: Committee notes revised.
2014 Revision: Subdivision (c)(1)(B) amended to conform to
Fla. R. Gen. Prac. & Jud. Admin. 2.425. Committee notes revised.
2016 Revision: Subdivision (c)(1)(H) amended to reflect the
renumbering of section 744.1083 to section 744.2002, Florida
Statutes. Committee notes revised.
Statutory Reference
§ 744.304, Fla. Stat. Standby guardianship.
Rule References
Fla. Prob. R. 5.590 Application for appointment as guardian;
disclosure statement; filing.
Fla. Prob. R. 5.600 Oath.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Filing of Sensitive Information.
RULE 5.647 cases. SURROGATE GUARDIAN
(a) Petition for Designation of Surrogate Guardian. A
guardian may file a petition to designate a surrogate guardian to
exercise the powers of the guardian if the guardian is unavailable to
act. The surrogate must be a professional guardian. The petition
shall state:
(1) the name and business address of the surrogate
guardian;
(2) the requested duration of the appointment; and
(3) the powers to be exercised by the surrogate
guardian.
(b) Service. The petition for appointment of a surrogate
guardian shall be served on all interested persons and the ward,
unless the ward is a minor.
(c) Oath. The surrogate guardian must file with the court an
oath swearing or affirming that the surrogate guardian will
faithfully perform the duties delegated.
(d) Termination. Prior to the expiration of the period
granted by court order, the guardian may terminate the authority of
the surrogate guardian by filing a written notice of the termination
with the court and serving it on the surrogate guardian.
Committee Notes
Rule History
2006 Revision: New rule.
2008 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.442, Fla. Stat. Delegation of authority.
RULE 5.648 cases. EMERGENCY TEMPORARY GUARDIAN
(a) Petition for Appointment of Emergency Temporary
Guardian. Prior to appointment of a guardian but after a petition
for determination of incapacity has been filed, the alleged
incapacitated person or any adult interested in the welfare of that
person may petition for the appointment of an emergency temporary
guardian of the person or property. The petition shall be verified
and shall state:
(1) the petitioner’s residence and post office address;
(2) the name, age, and residence and post office
address of the alleged incapacitated person;
(3) that there appears to be imminent danger that the
physical or mental health or safety of the alleged incapacitated
person will be seriously impaired or that the alleged incapacitated
person’s property is in danger of being wasted, misappropriated, or
lost unless immediate action is taken;
(4) the nature of the emergency and the reason
immediate action must be taken;
(5) the extent of the emergency temporary
guardianship, either limited or plenary, requested for the alleged
incapacitated person, and, if known, the nature and value of the
property to be subject to the emergency temporary guardianship;
(6) the names and addresses of the next of kin of the
alleged incapacitated person known to the petitioner;
(7) the name and residence and post office address of
the proposed emergency temporary guardian, and that the proposed
emergency temporary guardian is qualified to serve, or that a willing
and qualified emergency temporary guardian has not been located,
and;
(8) the proposed emergency temporary guardian’s
relationship to or any previous association with the alleged
incapacitated person.
(b) Notice. Notice of filing of the petition for appointment of
an emergency temporary guardian and hearing on the petition must
be served on the alleged incapacitated person and on the alleged
incapacitated person’s attorney at least 24 hours before the hearing
on the petition is commenced, unless the petitioner demonstrates
that substantial harm to the alleged incapacitated person would
occur if the 24-hour notice is given.
(c) Service on Public Guardian. If the petitioner requests
appointment of the public guardian as emergency temporary
guardian, a copy of the petition and notice shall be served on the
public guardian.
(d) Order. The order appointing the emergency temporary
guardian shall specify the powers and duties of the emergency
temporary guardian.
(e) Extension of Authority. Prior to the expiration of the
authority of the emergency temporary guardian, any interested
person may file a verified petition for extension of authority of the
emergency temporary guardian. The petition must show that the
conditions that warranted the initial appointment of the emergency
temporary guardian still exist. The petition shall be served on the
ward’s attorney and on the emergency guardian.
(f) Final Report. An emergency temporary guardian shall
file a final report no later than 30 days after the expiration of the
emergency temporary guardianship. A copy of the final report shall
be served on the successor guardian, if any, the ward, and the
ward’s attorney. With approval of the court, service on the ward
may be accomplished by serving the attorney for the ward.
(1) If the emergency temporary guardian is a guardian
of the property, the final report shall consist of a verified inventory
of the ward’s property as of the date letters of emergency temporary
guardianship were issued, a final accounting that gives a full and
correct account of the receipts and disbursements of all the ward’s
property over which the guardian had control, and a statement of
the property on hand at the end of the emergency temporary
guardianship.
(2) If the emergency temporary guardian is a guardian
of the person, the final report shall summarize the activities of the
guardian with regard to residential placement, medical condition,
mental health and rehabilitative services, and the social condition
of the ward to the extent of the authority granted to the emergency
temporary guardian.
(3) If the emergency temporary guardian becomes the
successor guardian of the property or person of the ward, the final
report must satisfy the requirements of, and shall serve as, the
initial report of the guardian of the property or person of the ward,
as the case may be, as set forth in rule 5.690.
Committee Notes
Rule History
2007 Revision: New rule.
2015 Revision: Amended subdivision (b) to conform to
statutory changes in section 744.3031(2), Florida Statutes.
Committee notes revised.
2016 Revision: Committee notes revised to reflect renumbering
of section 744.344(4) to section 744.2005, Florida Statutes.
Updated statutory references.
Statutory References
§ 744.3031, Fla. Stat. Emergency temporary guardianship.
§ 744.2005, Fla. Stat. Order of appointment.
Rule References
Fla. Prob. R. 5.600 Oath.
Fla. Prob. R. 5.690 Initial guardianship report.
RULE 5.649 cases. GUARDIAN ADVOCATE
(a) Petition for Appointment of Guardian Advocate. A
petition to appoint a guardian advocate for a person with a
developmental disability may be executed by an adult person who is
a resident of this state. The petition must be verified by the
petitioner and must state:
(1) the name, age, and present address of the petitioner
and the petitioner’s relationship to the person with a developmental
disability;
(2) the name, age, county of residence, and present
address of the person with a developmental disability;
(3) that the petitioner believes that the person needs a
guardian advocate and the factual information on which the belief
is based;
(4) the exact areas in which the person lacks the ability
to make informed decisions about the person’s care and treatment
services or to meet the essential requirements for the person’s
physical health or safety;
(5) the legal disabilities to which the person is subject;
(6) if authority is sought over any property of the
person, a description of that property and the reason why
management or control of that property should be placed with a
guardian advocate;
(7) the name of the proposed guardian advocate, the
relationship of the proposed guardian advocate to the person with a
developmental disability, the relationship of the proposed guardian
advocate with the providers of health care services, residential
services, or other services to the person with developmental
disabilities, and the reason why the proposed guardian advocate
should be appointed. If a willing and qualified guardian advocate
cannot be located, the petition must so state;
(8) whether the petitioner has knowledge, information,
or belief that the person with a developmental disability has
executed a designation of health case surrogate or other advance
directive under chapter 765, Florida Statutes, or a durable power of
attorney under chapter 709, Florida Statutes, and if the person with
a development disability has executed any of the foregoing
documents, an explanation as to why the documents are
insufficient to meet the needs of the individual;
(9) whether the petitioner has knowledge, information,
or belief that the person with a developmental disability has a
preneed guardian designation; and
(10) whether authority is sought to seek periodic support
of the person with a developmental disability.
(b) Notice.
(1) Notice of the filing of the petition must be given to
the person with a developmental disability, both verbally and in
writing, in the language of the person and in English. Notice must
also be given to the person with a developmental disability’s next of
kin, any designated health care surrogate, an agent designated in a
durable power of attorney, and such other persons as the court may
direct. A copy of the petition to appoint a guardian advocate must
be served with the notice.
(2) The notice must state that a hearing will be held to
inquire into the capacity of the person with a developmental
disability to exercise the rights enumerated in the petition. The
notice must also state the date of the hearing on the petition.
(3) The notice must state that the person with a
developmental disability has the right to be represented by counsel
of the person’s own choice and, the court must initially appoint
counsel.
(c) Counsel. Within 3 days after a petition has been filed,
the court must appoint an attorney to represent a person with a
developmental disability who is the subject of a petition to appoint a
guardian advocate. The person with a developmental disability may
substitute the person’s own attorney for the attorney appointed by
the court.
(d) Order. If the court finds the person with a developmental
disability requires the appointment of a guardian advocate, the
order appointing the guardian advocate must contain findings of
facts and conclusions of law, including:
(1) the nature and scope of the person’s inability to
make decisions;
(2) the exact areas in which the person lacks ability to
make informed decisions about care and treatment services or to
meet the essential requirements for the individual’s physical health
and safety;
(3) if any property of the person is to be placed under
the management or control of the guardian advocate, a description
of that property, any limitations as to the extent of such
management or control, and the reason why management or control
by the guardian advocate of that property is in the best interest of
the person;
(4) if the person has executed a designation of health
care surrogate, other advance directive, or durable power of
attorney, a determination as to whether the documents sufficiently
address the needs of the person and a finding that the advance
directive or durable power of attorney does not provide an
alternative to the appointment of a guardian advocate that
sufficiently addresses the needs of the person with a developmental
disability;
(5) if a durable power of attorney exists, the powers of
the agent, if any, that are suspended and granted to the guardian
advocate;
(6) if an advance directive exists and the court
determines that the appointment of a guardian advocate is
necessary, the authority, if any, the guardian advocate exercises
over the health care surrogate;
(7) the specific legal disabilities to which the person
with a developmental disability is subject;
(8) the name of the person selected as guardian
advocate; and
(9) the powers, duties, and responsibilities of the
guardian advocate, including bonding of the guardian advocate as
provided by law.
(e) Issuance of Letters. After compliance with all of the
foregoing, letters of guardian advocacy must be issued to the
guardian advocate.
Committee Notes
Rule History
2008 Revision: New rule.
2013 Revision: New subdivisions (a)(6) and (d)(3) added to
address situations in which the guardian advocate will have
authority over the property of the person with a developmental
disability. New subdivision (e) added to provide for the issuance of
letters of guardian advocacy. Editorial changes to subdivisions (a)(7)
and (b)(3). Editorial changes to conform to the court’s guidelines for
rules submissions as set forth in AOSC06-14.
2019 Revision: Subdivisions (b)(1) and (d)(5) amended to
change “attorney-in-fact” to “agent” to be consistent with chapter
709, Florida Statutes. Committee notes updated to reflect the
legislative amendments to chapter 709, Florida Statutes.
2020 Revision: Amends subdivision (a)(8) to address the
Judicial Management Council Guardianship Workgroup Final
Report dated June 15, 2018, Focus Area 1, Recommendation 3, by
requiring an explanation if there are less restrictive alternatives to
guardianship, but they are not sufficient to meet the needs of the
person with a developmental disability. Adds a new subdivision
(a)(9) to address the Judicial Management Council Guardianship
Workgroup Final Report dated June 15, 2018, Focus Area 1,
Recommendation 4, by requiring a statement of the petitioner’s
knowledge of any preneed guardian designation. Committee notes
revised.
2023 Revision: Subdivision (a)(10) added to address statutory
changes to sections 393.12(2)(b) and (3)(b), Florida Statutes.
Committee notes revised.
Statutory References
§ 393.063(9), Fla. Stat. Definitions.
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§§ 709.2101–709.2402, Fla. Stat. Florida Power of Attorney
Act.
§ 709.2019, Fla. Stat. Termination or suspension of power of
attorney or agent’s authority.
§ 744.3045, Fla. Stat. Preneed guardian.
§ 765.101, Fla. Stat. Definitions.
§ 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.
§ 765.205(3), Fla. Stat. Responsibility of the surrogate.
§ 765.302, Fla. Stat. Procedure for making a living will; notice
to physician.
§ 765.401, Fla. Stat. The proxy.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.540 Hearings.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
RULE 5.650 cases. RESIGNATION OR DISQUALIFICATION OF
GUARDIAN; APPOINTMENT OF SUCCESSOR
(a) Resignation and Petition for Discharge. A guardian
seeking to resign shall file a resignation and petition for discharge.
(b) Contents. The resignation and petition for discharge
shall state:
(1) that the guardian wishes to resign and be relieved of
all duties as guardian:
(2) the amount of compensation to be paid to the
guardian and to the attorneys, accountants, or other agents
employed by the guardian; and
(3) the names and addresses of the successor guardian
and the successor guardian’s attorney, or that a successor guardian
has not yet been appointed or duly qualified.
(c) Final Report. A resigning guardian of the property shall
file a final report showing receipts, disbursements, amounts
reserved for unpaid and anticipated costs and fees, and other
relevant financial information from the date of the previous annual
accounting, and a list of assets to be turned over to the successor
guardian.
(d) Notice. A notice shall be served stating that:
(1) any objection shall be in writing and shall state with
particularity each item to which the objection is directed and the
grounds on which the objection is based;
(2) any objection to the resignation, petition for
discharge, or final report shall be filed within 30 days from the date
of service of the petition for discharge; and
(3) within 90 days after filing of the objection, a notice
of hearing thereon shall be served or the objection is abandoned.
(e) Service. A copy of the resignation, petition for discharge,
final report, and notice of resignation and petition for discharge
shall be served on the ward, any surety on the guardian’s bond, any
successor guardian, and such other persons as the court may
direct.
(f) Objections. Objections shall be in the form and be filed
within the time set forth in the notice of resignation and petition for
discharge. A copy of the objections shall be served by the objector
on the ward, all guardians, any surety on the guardian’s bond, and
any successor guardian.
(g) Disposition of Objections. Any interested person may
set a hearing on the objections. Notice of the hearing shall be served
on the guardian, the successor guardian, if any, and any other
interested persons. If a notice of hearing on the objections is not
served within 90 days of filing of the objections, the objections will
be deemed abandoned.
(h) Discharge. The guardian’s resignation shall not be
accepted and the guardian shall not be discharged until all
objections have been withdrawn, abandoned, or judicially resolved
and a successor guardian has been appointed and duly qualified.
After all objections have been withdrawn, abandoned, or judicially
resolved, if the court is satisfied that the resigning guardian has
faithfully discharged the duties of the guardianship and the
interests of the ward are protected, and the resigning guardian of
the property has delivered the assets of the ward, all guardianship
records, and all money due to the ward from the guardian to the
remaining or successor guardian, the court shall enter an order
accepting resignation of guardian and granting discharge.
(i) Disqualification. Any guardian who is improperly
appointed, or who becomes disqualified to act after appointment,
shall immediately file a resignation and petition for discharge and
proceed in accordance with this rule.
(j) Nonresident Guardians. Nonresident guardians
appointed before October 1, 1989, shall not be automatically
disqualified to serve and shall not be required to resign and initiate
their own removal.
(k) Guardian Advocates. This rule shall apply to guardian
advocates, except that a final report shall be required of a guardian
advocate only if the guardian advocate’s authority included the
management of the property of the person with a developmental
disability.
Committee Notes
Rule History
1975 Revision: Substantially the same as sections 744.467
and 744.471, Florida Statutes, with editorial changes.
1977 Revision: No change in rule. Change in committee note
to conform to statutory renumbering.
1988 Revision: Editorial changes in (a). Text of rule 5.590
inserted in (b). Editorial change in (c). Captions added to
subdivisions. Committee notes revised. Citation form changes in
committee notes.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Substantial revision of entire rule to harmonize
with procedure for termination of guardianship under rules 5.670
and 5.680. Subdivision (k) transferred from temporary emergency
rule 5.800.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
2007 Revision: Subdivision (i) deleted because right of waiver
is substantive. Subsequent subdivisions relettered.
2008 Revision: Subdivision (k) added to include guardian
advocates. Committee notes revised.
2012 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.102(11), Fla. Stat. Definitions.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.467, Fla. Stat. Resignation of guardian.
§ 744.471, Fla. Stat. Appointment of successor.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.660 cases. PROCEEDINGS FOR REMOVAL OF GUARDIAN
(a) Notice. Proceedings for removal of a guardian may be
instituted by a court, by any surety or other interested person, or
by the ward, and formal notice of the petition for removal of a
guardian must be served on all guardians, other interested persons,
next of kin, and the ward. The pleading must state with
particularity the reasons why the guardian should be removed.
(b) Accounting. A removed guardian must file with the court
an accounting for the guardianship within 20 days after the
guardian’s removal. A copy of the accounting must be served on the
successor guardian and the ward, unless the ward is a minor or
has been determined to be totally incapacitated.
(c) Transfer of Property and Records. The removed
guardian (or the guardian’s heirs, personal representative, or
surety) must turn over all the property of the ward in the removed
guardian’s control and all guardianship records to the duly
qualified successor. The successor guardian must, or the ward may,
demand of the removed guardian (or the guardian’s heirs, personal
representative, or surety) all of those items.
(d) Failure to Comply. If a removed guardian fails to file a
true, complete, and final accounting for the guardianship or to turn
over to the successor all property of the ward in the removed
guardian’s control and all guardianship records, the court must
issue a show-cause order.
(e) Guardian Advocates. Subdivisions (b) through (d) of this
rule must apply to guardian advocates only to the extent that the
guardian advocate was granted authority over the property of the
person with a developmental disability.
Committee Notes
Rule History
1977 Revision: No change in rule. Change in committee notes
to conform to statutory renumbering.
1980 Revision: Subdivision (a) amended to specifically
authorize any guardian or next of kin to file the petition and to
require formal notice in conformity with rule 5.630(b).
1984 Revision: Subdivision (b) amended to conform to statute.
Editorial changes and committee notes revised.
1988 Revision: Subdivision (a) rewritten for clarity. Language
in (b) deleted as surplusage. Editorial change in caption of (c).
Committee notes revised. Citation form change in committee notes.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Subdivision (a) amended to require that the
petition allege specific reasons why the guardian should be removed
and to require service of the petition on the ward. Otherwise,
editorial changes in all subdivisions.
1992 Revision: Citation form changes in committee notes.
2006 Revision: Requirement in (b) to serve minors deleted to
conform to 2006 amendment to section 744.511, Florida Statutes.
2008 Revision: Subdivision (e) added to include guardian
advocates. Committee notes revised.
2012 Revision: Committee notes revised.
2013 Revision: Subdivision (b) revised to conform to section
744.511, Florida Statutes. Committee notes revised. Editorial
changes to conform to the court’s guidelines for rules submissions
as set forth in AOSC06-14.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 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.
§ 744.514, Fla. Stat. Surrender of property upon removal.
§ 744.517, Fla. Stat. Proceedings for contempt.
Rule References
Fla. Prob. R. 5.025 Adversary proceedings.
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. R. Gen. Prac. & Jud. Admin. 2.420 Public access to
judicial branch records.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.670 cases. TERMINATION OF GUARDIANSHIP ON CHANGE
OF DOMICILE OF RESIDENT WARD
(a) Petition for Discharge. The Florida guardian may file a
petition for discharge when the domicile of a resident ward has
changed to a foreign jurisdiction, the foreign court having
jurisdiction over the ward at the ward’s new domicile has appointed
a foreign guardian, and the foreign guardian has qualified and
posted a bond in the amount required by the foreign court.
(b) Contents of Petition. The petition for discharge shall
state:
(1) that the grounds set forth in subdivision (a) have
occurred;
(2) that the guardian has fully administered the Florida
guardianship; and
(3) the amount of compensation to be paid to the
guardian and to the attorneys, accountants, or other agents
employed by the guardian.
(c) Final Report. The Florida guardian of the property shall
file a final report showing receipts, disbursements, amounts
reserved for unpaid and anticipated costs and fees, and other
relevant financial information from the date of the previous annual
accounting, and a list of the assets to be turned over to the foreign
guardian.
(d) Notice. The Florida guardian of the property shall
publish a notice as required by law, which shall state:
(1) the name of the ward;
(2) the file number of the guardianship;
(3) the designation and address of the court;
(4) the name and address of the guardian and the
guardian’s attorney;
(5) the name and address of the foreign guardian and
the foreign guardian’s attorney, if any;
(6) the date of first publication;
(7) that a petition for discharge has been filed upon the
grounds of change of domicile of the ward;
(8) the date the guardian will apply for discharge;
(9) that the jurisdiction of the ward will be transferred
to the foreign jurisdiction;
(10) that any objection shall be in writing and shall state
with particularity each item to which the objection is directed and
the grounds on which the objection is based;
(11) that any objection to the final report or the petition
for discharge shall be filed within the later of 30 days from the date
of service of the petition for discharge or the date of first publication
of the notice; and
(12) that within 90 days after filing of the objection, a
notice of hearing thereon shall be served or the objection is
abandoned.
(e) Service. A copy of the petition for discharge and of the
notice of petition for discharge shall be served on the foreign
guardian and such other persons as the court may direct.
(f) Objections. Objections shall be in the form and be filed
within the time set forth in the notice of petition for discharge. A
copy of the objections shall be served by the objector on the Florida
guardian and the foreign guardian.
(g) Disposition of Objections. Any interested person may
set a hearing on the objections. Notice of the hearing shall be served
on the Florida guardian, the foreign guardian, and any other
interested persons. If a notice of hearing on the objections is not
served within 90 days of filing of the objections, the objections will
be deemed abandoned.
(h) Discharge. The Florida guardian may not be discharged
until all objections have been withdrawn, abandoned, or judicially
resolved. After all objections have been withdrawn, abandoned, or
judicially resolved, if the court is satisfied that the Florida guardian
has faithfully discharged the duties of the guardianship and the
interests of the ward are protected, and the Florida guardian of the
property has delivered the assets of the ward to the foreign
guardian, the court shall enter an order of discharge.
Committee Notes
Rule History
1977 Revision: Change in committee notes to conform to
statutory renumbering.
1984 Revision: Adds 30-day requirement for filing objections.
Editorial changes and committee notes revised.
1988 Revision: Editorial change in (c). First and last sentences
of (d) deleted and clarifying word added.
1989 Revision: Prior rule adopted as temporary emergency
rule.
1991 Revision: Substantial revision of entire rule to harmonize
with procedure for discharge of guardian under rule 5.680 and to
conform to section 744.524, Florida Statutes.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
2007 Revision: Subdivision (i) deleted because right of waiver
is substantive. Committee notes revised.
2008 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
2016 Revision: Updated statutory references. Committee
notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.102(8), (9), Fla. Stat. Definitions.
§ 744.1096, Fla. Stat. Domicile of ward.
§ 744.1097, Fla. Stat. Venue.
§ 744.1098, Fla. Stat. Change of ward’s residence.
§ 744.524, Fla. Stat. Termination of guardianship on change of
domicile of resident ward.
§ 744.531, Fla. Stat. Order of discharge.
Rule References
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.680 Termination of guardianship.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.680 cases. TERMINATION OF GUARDIANSHIP
(a) Petition for Discharge. When the ward has become sui
juris, has terminated a voluntary guardianship, has been restored
to capacity, has had all rights restored, or has died, or when the
guardian has been unable to locate the ward after diligent search,
or, for a guardian of the property, when the property subject to the
guardianship has been exhausted, the guardian shall file a petition
for discharge. A guardian of the person is discharged without
further proceeding upon filing a certified copy of the ward’s death
certificate.
(b) Contents of Petition. The petition for discharge shall
state:
(1) the reason for termination of the guardianship;
(2) that the guardian has fully administered the
guardianship; and
(3) the amount of unpaid and anticipated costs and
fees to be paid to the guardian and to the attorneys, accountants,
or other agents employed by the guardian.
(c) Final Report. The guardian of the property shall
promptly file a final report. If the ward has died, the guardian must
file the report no later than 45 days after he or she has been served
with letters of administration, letters of curatorship, or an order of
summary administration. The report shall show receipts,
disbursements, amounts reserved for unpaid and anticipated
disbursements, costs, and fees, including the amounts set forth in
subdivision (b)(3), and other relevant financial information from the
date of the previous annual accounting, and a list of the assets to
be turned over to the person entitled to them.
(d) Notice. A notice shall be served stating:
(1) that any objection shall be in writing and shall state
with particularity each item to which the objection is directed and
the grounds on which the objection is based;
(2) that any objection to the final report or the petition
for discharge shall be filed within 30 days from the date of service of
the petition for discharge; and
(3) that within 90 days after filing of the objection, a
notice of hearing thereon shall be served or the objection is
abandoned.
(e) Service. The guardian applying for discharge shall serve
a copy of the petition for discharge and final report on the ward, on
the personal representative of a deceased ward, or if there are no
assets justifying qualification of a personal representative for the
estate of a deceased ward, on the known next of kin of the deceased
ward, or such other persons as the court may direct; provided
however, that a guardian of the property who is subsequently
appointed personal representative shall serve a copy of the petition
for discharge and final report on all beneficiaries of the ward’s
estate.
(f) Objections. All persons served shall have 30 days to file
objections to the petition for discharge and final report. The
objections shall state with particularity the items to which the
objections are directed and shall state the grounds on which the
objections are based. Copies of the objections shall be served by the
objector on the guardian. Any interested person may set a hearing
on the objections. Notice of the hearing shall be served on the
guardian and any other interested persons. If a notice of hearing on
the objections is not served within 90 days of filing of the
objections, the objections will be deemed abandoned. The guardian
may not be discharged until all objections have been withdrawn,
abandoned, or judicially resolved, and the petition for discharge of
the guardian is granted by the court.
(g) Discharge. The guardian may not be discharged until all
objections are withdrawn, abandoned, or judicially resolved. After
all objections are withdrawn, abandoned, or judicially resolved, and
if it appears that the guardian has paid all amounts reserved to the
persons entitled to them and has made full and complete
distribution of the ward’s assets to the persons entitled to them and
has otherwise faithfully discharged the duties of the guardian, the
court shall grant the petition for discharge and enter an order of
discharge. If objections are filed and are not withdrawn, abandoned,
or judicially resolved, the court shall conduct a hearing in the same
manner as for a hearing on objections to annual guardianship
plans. After hearing, if the court is satisfied that the guardian has
faithfully discharged the duties of the guardianship and the
interests of the ward are protected, and the guardian has rendered
a complete and accurate final report and has delivered the assets of
the ward to the person entitled to them, the court shall enter an
order of discharge.
Committee Notes
Rule History
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 pertaining thereto.
1977 Revision: No change in rule. Change in committee note
to conform to statutory renumbering.
1988 Revision: Captions added to subdivisions. Committee
notes revised. Citation form changes in committee notes.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Substantial revision of entire rule to harmonize
with procedure for discharge of personal representatives under
rules 5.400 and 5.401.
1992 Revision: Committee notes revised. Citation form
changes in committee notes.
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.
2003 Revision: Subdivision (a) amended to reflect addition of
rule 5.552 dealing with voluntary guardianship of property.
Committee notes revised.
2006 Revision: Subdivision (c) amended to conform to 2006
amendments to section 744.527, Florida Statutes. Subdivision (h)
deleted as unnecessary because substantive right of waiver is
provided by section 731.302, Florida Statutes.
2008 Revision: Reference to restoration of rights added in
subdivision (a). Committee notes revised.
2012 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.521, Fla. Stat. Termination of guardianship.
§ 744.527, Fla. Stat. Final reports and application for
discharge; hearing.
§ 744.528, Fla. Stat. Discharge of guardian named as personal
representative.
§ 744.531, Fla. Stat. Order of discharge.
§ 744.534, Fla. Stat. Disposition of unclaimed funds held by
guardian.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.552 Voluntary guardianship of property.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.681 cases. RESTORATION OF RIGHTS OF PERSON WITH
DEVELOPMENTAL DISABILITY
(a) Suggestion of Restoration of Rights. A suggestion of
restoration of rights of a person with a developmental disability may
be executed by any interested person, including the person with a
developmental disability. The suggestion must contain:
(1) a statement that the person with a developmental
disability is capable of exercising some or all of the rights that were
granted to the guardian advocate;
(2) evidentiary support for the filing as provided by law;
and
(3) the name and address of the attorney representing
the person with a developmental disability, if any, known to the
petitioner.
(b) Counsel. Within 3 days after the suggestion has been
filed, the court must appoint an attorney to represent a person with
a developmental disability who is not then represented by counsel
as stated in the suggestion.
(c) Notice. Upon filing of the suggestion, if the name and
address of the attorney representing the person with a
developmental disability is listed in the suggestion, or upon the
appointment of counsel, if no name and address of an attorney are
listed in the suggestion, the clerk must immediately send notice of
the filing of the suggestion, together with a copy of the suggestion,
to the person with a developmental disability, the person’s guardian
advocate, the person’s attorney, the attorney for the guardian
advocate, if any, and any other interested person as directed by the
court. The notice must contain a statement that all objections to the
suggestion must be filed within 20 days after service of the notice.
Formal notice must be served on the guardian advocate. Informal
notice may be served on the other persons. Notice need not be
served on the petitioner. The clerk must file proof of service.
(d) Objections. Any objection must be in writing and must
state with particularity each item to which the objection is directed
and the grounds on which the objection is based. The objector must
serve notice of hearing on the objection and a copy of the objection
on the person with the developmental disability, the person’s
attorney, the person’s guardian advocate, the attorney for the
guardian advocate, if any, the next of kin of the person with a
developmental disability, and any other interested persons as
directed by the court.
(e) Order. The court must enter an order denying the
suggestion or restoring all or some of the rights that were granted to
the guardian advocate. If only some rights are restored to the
person with a developmental disability, the order must state which
rights are restored and amend the letters of guardian advocacy
accordingly. The court need not hold a hearing prior to entering an
order restoring rights if no objections are filed and the court is
satisfied with the evidentiary support for restoration supplied by the
petitioner.
(f) Additional Requirements. If personal rights are
restored, the guardian advocate must file an amended plan within
60 days after the order restoring rights. If all property rights are
restored, a guardian advocate previously granted management or
control over property must file a final accounting within 60 days
after the order restoring rights. A copy of any amended plan and
accounting must be promptly served on the person with a
developmental disability and the person’s attorney.
Committee Notes
Rule History
2008 Revision: New rule.
2013 Revision: Substantial revisions to reflect the designation
of the pleading as a Suggestion of Restoration of Rights; the
requirement for a statement of evidentiary support, the
identification and address of the attorney for the person with a
developmental disability; procedures for service of objections;
clarification of requirements following a restoration of rights; and
editorial changes. Editorial changes to conform to the court’s
guidelines for rule submissions as set forth in AOSC06-14.
2019 Revision: Committee notes updated to reflect the
legislative amendments to chapter 709, Florida Statutes.
Statutory References
§ 393.063(9), Fla. Stat. Definitions.
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§§ 709.2101–709.2402, Fla. Stat. Florida Power of Attorney
Act.
§ 765.101, Fla. Stat. Definitions.
§ 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.
§ 765.205(3), Fla. Stat. Responsibility of the surrogate.
§ 765.302, Fla. Stat. Procedure for making a living will; notice
to physician.
§ 765.401, Fla. Stat. The proxy.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.540 Hearings.
Fla. Prob. R. 5.541 Recording of hearings.
Fla. Prob. R. 5.680 Termination of guardianship.
RULE 5.685 cases. DETERMINATION REGARDING ALTERNATIVES
TO GUARDIANSHIP
(a) Reporting by Guardian. The guardian shall promptly file
a report attaching a copy of a final order or judgment that
determines the validity of a ward’s durable power of attorney, trust,
or trust amendment.
(b) Petition. At any time after the appointment of a
guardian, the guardian, the ward, the ward’s attorney, if any, or any
other interested person may file a verified petition stating that there
is an alternative to guardianship that will sufficiently address the
problems of the ward.
(c) Contents of Petition. The petition to determine
alternatives to guardianship shall state:
(1) the petitioner’s interest in the proceeding; and
(2) the facts constituting the basis for the relief sought
and that the proposed alternative to guardianship will sufficiently
address the problems of the ward and is in the ward’s best interest.
(d) Service. The petition shall be served on the guardian, the
ward, the ward’s attorney, if any, those interested persons who have
filed requests for notices and copies of pleadings, and such other
persons as the court may direct.
(e) Order. The order shall specify whether there is an
alternative to guardianship that will sufficiently address the
problems of the ward, the continued need for a guardian, and the
extent of the need for delegation of the ward’s rights.
Committee Notes
Rule History
2006 Revision: New rule.
Statutory References
§ 744.331, Fla. Stat. Procedures to determine incapacity.
§ 744.462, Fla. Stat. Determination regarding alternatives to
guardianship.
RULE 5.690 cases. INITIAL GUARDIANSHIP REPORT
(a) Contents and Filing. An initial guardianship report shall
be filed within 60 days after the issuance of letters of guardianship.
The guardian of the property shall file the initial guardianship
report consisting of the verified inventory. The guardian of the
person shall file the initial guardianship report consisting of the
guardianship plan.
(b) Service. Copies of the initial guardianship report shall be
served on the ward, unless the ward is a minor under the age of 14
years or is totally incapacitated, and the attorney for the ward, if
any. With approval of the court, service on the ward may be
accomplished by serving the attorney for the ward.
Committee Notes
The committee recognizes the conflict between this rule and
section 744.362, Florida Statutes, which requires the filing of the
initial guardianship report (which includes the inventory) within 60
days after appointment. The committee believes this provision,
which attempts to regulate when a document must be filed with the
court, is procedural and that a guardian may not receive letters of
guardianship empowering the guardian to act contemporaneously
with the appointment. Therefore, the issuance of letters is a more
practical time from which to measure the beginning of the time
period for the accomplishment of this act.
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 effort to jointly file the initial guardianship report.
Rule History
1991 Revision: New rule.
1992 Revision: Addition of phrase in subdivision (b) to conform
to 1992 amendment to section 744.362(1), Florida Statutes.
Citation form changes in committee notes.
2012 Revision: Committee notes revised.
2016 Revision: Committee notes revised.
Statutory References
§ 744.362, Fla. Stat. Initial guardianship report.
§ 744.363, Fla. Stat. Initial guardianship plan.
§ 744.365, Fla. Stat. Verified inventory.
§ 744.3701, Fla. Stat. Inspection of report.
§ 744.384, Fla. Stat. Subsequently discovered or acquired
property.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.620 Inventory.
Fla. Prob. R. 5.700 Objection to guardianship reports.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.695 cases. ANNUAL GUARDIANSHIP REPORT
(a) Contents and Filing.
(1) Guardian of the Person. Unless the court requires
reporting on a calendar-year basis, the guardian of the person shall
file an annual guardianship plan within 90 days after the last day of
the anniversary month in which the letters of guardianship were
signed. The plan shall include the mailing address, phone number,
and e-mail address of the guardian, and:
(A) the residence address of an individual
guardian; or
(B) the office address of a corporate or public
guardian.
The plan must cover the coming fiscal year ending on the last day of
such anniversary month. If the court requires calendar-year
reporting, the guardianship plan for the forthcoming year must be
filed on or before April 1 of each year.
(2) Guardian of the Property. Unless the court requires
or authorizes reporting on a fiscal year basis, the guardian of the
property shall file an annual accounting on or before April 1 of each
year. The plan shall include the mailing address, phone number,
and e-mail address of the guardian, and:
(A) the residence address of an individual
guardian; or
(B) the office address of a corporate or public
guardian.
The annual accounting shall cover the preceding annual accounting
period. If the court requires or authorizes reporting on a fiscal year
basis, the annual accounting shall be filed on or before the first day
of the fourth month after the end of the fiscal year.
(b) Service. Copies of the annual plan and accounting shall
be served on the ward, unless the ward is a minor or is totally
incapacitated, and the attorney for the ward, if any. With the
approval of the court, service on the ward may be accomplished by
serving the attorney for the ward. The guardian shall serve copies
on such other persons as the court may direct.
Committee Notes
The annual guardianship report consists of the annual plan
for the guardian of the person and the annual accounting for the
guardian of the property.
For annual guardianship reports regarding minors, see rule
5.555.
With approval of the court, service on the ward may be
accomplished by service on the attorney for the ward, if any. The
committee was concerned that actual service on a ward of the
accounting or guardianship plan may give uninterested persons
access to financial or personal information to the detriment of the
ward. The committee believes that under such circumstances, the
guardian of the property could seek an order under section
744.371(5), Florida Statutes, even if the ward’s circumstances were
set out in detail in a pleading other than the annual guardianship
report. Such court order may be sought in appropriate
circumstances at the time of the initial hearing to determine
incapacity.
Rule History
1975 Revision: Substantially the same as section 744.427(1),
(2), and (4), Florida Statutes, and section 744.437, Florida Statutes,
with editorial changes and providing for the waiving, by a ward who
has become sui juris or by the personal representative of a deceased
ward, of the filing of an annual accounting. The rule requires the
guardian of the property of a ward to appear before the court at the
time he files his annual accounting or at such time the court shall
determine in order that the court may inquire as to any matter
relating 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 the guardian files his annual return” and only the
guardian of the property is required to file an annual accounting.
1977 Revision: No change in rule. Change in committee note
to conform to statutory renumbering.
1980 Revision: Subdivision (e) amended to avoid conflict with
statutory changes in section 744.437, Florida Statutes (1979).
1988 Revision: Matter in (b) deleted; covered in sections
744.427(2) 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.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Substantial changes and rule renumbered.
1992 Revision: Addition of language in subdivisions (a)(1) and
(a)(2) to implement 1992 amendments to sections 744.367(1) and
(2), Florida Statutes. Committee notes revised. Citation form
changes in committee notes.
2006 Revision: Requirement in (b) to serve minors age 14 and
above deleted to conform to amendment to section 744.367(3),
Florida Statutes. Committee notes revised.
2012 Revision: Committee notes revised.
2015 Revision: Subdivision (a)(1) amended to conform to
statutory changes in section 744.367(1), Florida Statutes.
Committee notes revised.
2017 Revision: Subdivision (a)(1) amended to conform to
statutory changes regarding reporting deadline in section
744.367(1), Florida Statutes. Committee notes revised.
2019 Revision: Subdivisions (a)(1) and (a)(2) amended to
require guardian’s contact information.
Statutory References
§ 744.367, Fla. Stat. Duty to file annual guardianship report.
§ 744.3675, Fla. Stat. Annual guardianship plan.
§ 744.3678, Fla. Stat. Annual accounting.
§ 744.3685, Fla. Stat. Order requiring guardianship report;
contempt.
§ 744.3701, Fla. Stat. Inspection of report.
§ 744.371, Fla. Stat. Relief to be granted.
§ 744.3735, Fla. Stat. Annual appearance of the guardian.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.552 Voluntary guardianship of property.
Fla. Prob. R. 5.555 Guardianships of minors.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.700 Objection to guardianship reports.
Fla. Prob. R. 5.800(b) Application of revised chapter 744 to
existing guardianships.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.696 cases. GUARDIAN ACCOUNTING
(a) Applicability. This rule applies to all guardian
accountings required under Chapter 744, Florida Statutes, other
than a simplified accounting permitted under section 744.3679,
Florida Statutes.
(b) Contents. A guardian accounting shall include:
(1) a statement of the starting balance of assets on
hand at the beginning of the accounting period which shall be the
ending balance of the preceding accounting, or if none, the value of
assets on the inventory;
(2) a full and correct account of the receipts and
disbursements of all of the ward’s property over which the guardian
has control since the date of the last accounting or, if none, from
the date of issuance of letters of guardianship;
(3) a schedule of assets at the end of the accounting
period; and
(4) in the case of annual accountings, a copy of the
annual or year-end statement of all of the ward’s cash accounts
from each of the institutions where the cash is deposited.
(c) Accounting Standards. The following standards are
required for the accounting of all transactions occurring on or after
January 1, 2017:
(1) Accountings shall be stated in a manner that is
understandable to persons who are not familiar with practices and
terminology peculiar to the administration of guardianships.
(2) The accounting shall begin with a concise summary
of its purpose and content.
(3) The accounting shall contain sufficient information
disclosing all significant transactions affecting administration
during the accounting period.
(4) The accounting shall contain 2 values in the
schedule of assets at the end of the accounting period, the asset
acquisition value or carrying value, and estimated current value.
(5) Gains and losses incurred during the accounting
period shall be shown separately in the same schedule.
(d) Accounting Format. A model format for an accounting is
attached to this rule as Appendix A.
(e) Verification. All accountings shall be verified by the
guardian filing the accounting.
(f) Substantiating Documents. Unless otherwise ordered
by the court, the guardian need not file the documents
substantiating the guardian accounting. Upon reasonable written
request, the guardian of the property shall make the substantiating
documents available for examination to persons entitled to receive
or inspect the guardian accounting.
(g) Interim Inspection of Records. Upon reasonable
written request and notice, the guardian of the property shall make
all material financial records pertaining to the guardianship
available for inspections to those persons entitled to receive or
inspect the guardian accounting.
Committee Notes
The purpose of this substantial revision is for guardian
accountings to conform to rule 5.346 and the Fiduciary Accounting
Principles and Model Formats and commentaries incorporated into
rule 5.346. As set forth in subdivision (b)(1), the starting balance
shall be the ending balance of the preceding accounting, or if none,
the value of assets on the inventory.
Attached, as Appendix A, is a model accounting format which
is only a suggested form.
Rule History
1991 Revision: New rule.
1992 Revision: Citation form changes in committee notes.
2010 Revision: Editorial change in (b) to delete redundant
language.
2012 Revision: Committee notes revised.
2013 Revision: Subdivision (b) revised to substitute
“documents” for “papers.” Committee notes revised. Editorial
changes to conform to the court’s guidelines for rule submissions as
set forth in AOSC06-14.
2016 Revision: Substantial rule revision. Committee notes
revised. Appendix A adopted.
Statutory References
§ 744.367, Fla. Stat. Duty to file annual guardianship report.
§ 744.3678, Fla. Stat. Annual accounting.
§ 744.3701, Fla. Stat. Inspection of report.
§ 744.3735, Fla. Stat. Annual appearance of the guardian.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.346 Fiduciary Accounting.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. Prob. R. 5.695 Annual guardianship report.
Fla. Prob. R. 5.700 Objection to guardianship reports.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
APPENDIX A
IN THE CIRCUIT COURT FOR COUNTY, FLORIDA
IN RE: GUARDIANSHIP OF
File Number:
Division:
ACCOUNTING OF GUARDIAN(S)
From: , , Through: ,
The purpose of this accounting is to report the assets on hand at the
beginning of the accounting period, all transactions that have occurred during
the period covered by the accounting, and the assets that remain on hand at
the end of the accounting period. It consists of a SUMMARY sheet and
Schedule A showing all Receipts, Schedule B showing all Disbursements,
Schedule C showing all Capital Transactions and Adjustments (the effect of
which are also reflected in other schedules, if appropriate), and Schedule D
showing assets on hand at the end of the accounting period.
Under penalties of perjury, the undersigned guardian(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
guardian(s) of , the ward, from,
through , .
Signed on , .
Attorney for Guardian: Guardian:
Attorney
Name
(address) (address)
Telephone: [Print or Type Names Under All
E-mail address: Signature Lines]
Florida Bar No.:
IN THE CIRCUIT COURT FOR COUNTY, FLORIDA
IN RE: GUARDIANSHIP OF
File Number:
Division:
ACCOUNTING OF GUARDIAN(S)
From: , , Through: ,
SUMMARY
Estimated Carrying
Current Value
Value
I. Starting Balance
Assets on Hand at Beginning of
Accounting Period $
II. Receipts
Schedule A: $
III. Disbursements
Schedule B: $
IV. Capital Transactions and
Adjustments
Schedule C: Net Gain or (Loss) $
V. Assets on Hand at Close of
Accounting Period
Schedule D: Cash and Other
Assets $ $
NOTE: Refer to Fla. Prob. R. 5.696.
Entries on Summary are to be taken from totals on Schedules A, B, C
and D.
The Summary and Schedules A, B, C and D are to constitute the full
accounting. Every transaction occurring during the accounting period should
be reflected on the Schedules.
All purchases and sales, all adjustments to the asset acquisition or
carrying value of any asset, and any other significant transactions that affect
the property (such as stock splits) should be described on Schedule C.
ACCOUNTING OF GUARDIAN(S),
GUARDIANSHIP OF
From: , , Through: ,
SCHEDULE A Receipts
Date Brief Description of Items Amount
NOTE: Schedule A should reflect only those items received during
administration during the accounting period.
Entries involving the sale of assets or other adjustments to the asset
acquisition or carrying values of assets are to be shown on Schedule C, and not
on Schedule A.
ACCOUNTING OF GUARDIAN(S),
GUARDIANSHIP OF
From: , , Through: ,
SCHEDULE B Disbursements
Date Brief Description of Items Amount
NOTE: Schedule B should reflect only those items paid out during the
accounting period.
Entries involving the purchase of assets or adjustments to the asset
acquisition or carrying values of assets are to be shown on Schedule C, and not
on Schedule B.
ACCOUNTING OF GUARDIAN(S),
GUARDIANSHIP OF
From: , , Through: ,
SCHEDULE C Capital Transactions and Adjustments
Date Brief Description of Transactions Net Gain Net Loss
TOTAL NET GAINS AND LOSSES
NET GAIN OR (LOSS)
NOTE: Schedule C should reflect all purchases and sales of assets and any
adjustments to the asset acquisition or carrying values of any assets.
Entries reflecting sales should show the asset acquisition 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 C.
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 C.
The NET gain or loss should be entered in the carrying value column of
the Summary.
ACCOUNTING OF GUARDIAN(S),
GUARDIANSHIP OF
From: , , Through: ,
SCHEDULE D Assets on Hand at Close of Accounting Period
(Indicate where held and legal description, certificate numbers, or other
identification.)
Estimated Carrying
Current Value Value
ASSETS OTHER THAN CASH:
OTHER ASSETS TOTAL
CASH:
CASH TOTAL $
TOTAL ASSETS (must agree with the Total for Item V on Summary)
NOTE: Schedule D should be a complete list of all assets on hand reflecting
asset acquisition or carrying values for each item, adjusted in accordance with
any appropriate entries on Schedule C, and estimated current values for each
item.
Current market values for any assets that are known to be different from
the asset acquisition or carrying values as of the close of the accounting period
should be shown in the column marked “Estimate Current Value.” The total
adjusted carrying value (not Current Value) must agree with the Total for Item
V on Summary.
APPENDIX B
GUARDIAN ACCOUNTING PRINCIPLES
I. ACCOUNTS SHOULD BE STATED IN A MANNER THAT IS
UNDERSTANDABLE BY PERSONS WHO ARE NOT FAMILIAR WITH
PRACTICES AND TERMINOLOGY PECULIAR TO THE ADMINISTRATION OF
GUARDIANSHIPS.
Commentary: In order for an account to fulfill its basic function of
communication, it is essential that it be stated in a manner that recognizes
that the interested parties are not usually familiar with guardian accounts. It
is neither practical nor desirable to require that accounts be tailored to meet
individual disabilities of particular parties but any account should be capable
of being understood by a person of average intelligence, literate in English, and
familiar with basic financial terms who has read it with care and attention.
Problems arising from terminology or style are usually a reflection of the
fact that people who become versed in a particular form of practice tend to
forget that terms which are familiar and useful to them may convey nothing to
someone else or may even be affirmatively misleading. For example, the terms
“debit” and “credit” are generally incomprehensible to people with no
knowledge of bookkeeping and many people who are familiar with them in
other contexts would assume that in the context of guardian accounting, the
receipt of an item is a “credit” to the fund rather than a “debit” to the guardian.
While the need for concise presentation makes a certain amount of
abbreviation both acceptable and necessary, uncommon abbreviation of
matters essential to an understanding of the account should be avoided or
explained.
Print-outs from electronic accounting systems or account statements can
be used as attachments to the schedules in the accounting form or to clarify
the accounting. The quality of the accounts produced by these systems and
account statements varies widely in the extent to which they can be
understood by persons who are not familiar with them.
II. A GUARDIAN ACCOUNT SHALL BEGIN WITH A CONCISE SUMMARY OF
ITS PURPOSE AND CONTENT.
Commentary: Very few people can be expected to pay much attention to a
document unless they have some understanding of its general purpose and its
significance to them. Even with such an understanding, impressions derived
from the first page or two will often determine whether the rest is read. The
use that is made of these pages is therefore of particular significance.
The cover page should disclose the nature and function of the account.
While a complete explanation of the significance of the account and the effect of
its presentation upon the rights of the parties is obviously impractical for
inclusion at this point, there should be at least a brief statement identifying the
guardian and the subject matter, noting the importance of examining the
account and giving an address where more information can be obtained.
A summary of the account shall also be presented at the outset. This
summary, organized as a table of contents, shall indicate the order of the
details presented in the account and shall show separate totals for the
aggregate of the assets on hand at the beginning of the accounting period;
transactions during the period; and the assets remaining on hand at the end of
the period. Each entry in the summary shall be supported by a schedule in the
account that provides the details on which the summary is based.
III. A GUARDIAN ACCOUNT SHALL CONTAIN SUFFICIENT INFORMATION
TO PUT THE INTERESTED PARTIES ON NOTICE AS TO ALL SIGNIFICANT
TRANSACTIONS AFFECTING ADMINISTRATION DURING THE ACCOUNTING
PERIOD.
Commentary: The presentation of the information account shall allow an
interested party to follow the progress of the guardian’s administration of
assets during the accounting period.
An account is not complete if it does not itemize, or make reference to,
assets on hand at the beginning of the accounting period.
Illustration:
3.1 The first account for a guardianship may detail the items received by
the guardian and for which the guardian is responsible. It must begin with the
total amount on the inventory.
Transactions shall be described in sufficient detail to give the court and
interested parties notice of their purpose and effect. It should be recognized
that too much detail may be counterproductive to making the account
understandable. In accounts dealing with extensive assets, it is usually
desirable to consolidate information with attachments that show detail. For
instance, where income from a number of securities is being accounted for, a
statement of the total dividends received on each security with appropriate
indication of changes in the number of shares held will be more readily
understandable and easier to check for completeness than a chronological
listing of all dividends received.
Illustrations:
3.2 Extraordinary appraisal costs should be shown separately and
explained.
3.3 Interest and penalties in connection with late filing of tax returns
should be shown separately and explained.
3.4 Receipts and disbursements shall be shown on separate schedules in
chronological order. The separate schedules may include totals by account,
with separate ledgers for each account, such as securities or financial
accounts.
3.5 Changes in asset values due to market fluctuations are not
transactions and shall not be reflected as a loss or gain, but the estimated
current value and carrying value shall be shown on the schedule listing assets
held at the end of the accounting period.
IV. A GUARDIAN ACCOUNT SHALL CONTAIN TWO VALUES, THE ASSET
ACQUISITION VALUE OR CARRYING VALUE, AND CURRENT VALUE.
Commentary: In order for transactions to be reported on a consistent
basis, an appropriate carrying value for assets must be chosen and employed
consistently.
The carrying value of an asset should reflect its value at the time it is
acquired by the guardian. When such a value is not precisely determinable,
the figure used should reflect a thoughtful decision by the guardian. Assets
received in kind should be carried at their value at the time of receipt. For
assets purchased during the administration of the guardianship, acquisition
cost would normally be used. Use of Federal income tax basis for carrying
value is acceptable when basis is reasonably representative of real values at the
time of acquisition.
In the Model Account, carrying value is referred to as “guardian
acquisition value.” The Model Account establishes the initial carrying value of
assets as their value at inception of the guardianship for inventoried assets,
date of receipt for subsequent receipts, and cost for investments.
Carrying value would not normally be adjusted for depreciation.
Except for adjustments that occur normally under the accounting system
in use, carrying values should generally be continued unchanged through
successive accounts and assets should not be arbitrarily “written up” or
“written down.” In some circumstances, however, with proper disclosure and
explanation, carrying value may be adjusted.
Illustrations:
4.1 Assets received in kind in satisfaction of a pecuniary legacy should
be carried at the value used for purposes of distribution.
Illustrations:
4.2 When an asset is held under circumstances that make it clear that it
will not be sold (e.g., a residence used by the ward) the guardian’s estimate of
value would be acceptable in lieu of an appraisal.
4.3 Considerations such as a pending tax audit or offer of the property
for sale may indicate the advisability of not publishing the guardian’s estimate
of value. In such circumstances, a statement that value was fixed by some
method such as “per company books,” “formula under buy-sell agreement,” or
“300% of assessed value” would be acceptable, but the guardian would be
expected to provide further information to interested parties upon request.
V. GAINS AND LOSSES INCURRED DURING THE ACCOUNTING PERIOD
SHALL BE SHOWN SEPARATELY IN THE SAME SCHEDULE.
Commentary: Each transaction involving the sale or other disposition of
securities during the accounting period shall be shown as a separate item in
one combined schedule of the account indicating the transaction, date,
explanation, and any gain or loss.
Although gains and losses from the sale of securities can be shown
separately in accounts, the preferred method of presentation is to present this
information in a single schedule. Such a presentation provides the most
meaningful description of investment performance and will tend to clarify
relationships between gains and losses that are deliberately realized at the
same time.
Increases and decreases in value not related to a sale or other disposition
are unrealized gains or losses and should not be shown as such on this
schedule.
RULE 5.697 cases. MAGISTRATES’ REVIEW OF GUARDIANSHIP
INVENTORIES, ACCOUNTINGS, AND PLANS
(a) General Magistrates. The court may appoint general
magistrates to review guardianship inventories, accountings, and
plans. General magistrates shall be members of The Florida Bar
and shall continue in office until removed by the court. The order
appointing a general magistrate shall be recorded. Each general
magistrate shall take the oath required of officers of the court by
the Florida Constitution. The oath shall be recorded before the
magistrate begins to act.
(b) Special Magistrates. In connection with the court’s
review of guardianship inventories, accountings, and plans, the
court may appoint members of The Florida Bar as special
magistrates for any particular service required by the court. Special
magistrates shall be governed by all laws and rules relating to
general magistrates except special magistrates shall not be required
to take an oath unless specifically required by the court. For good
cause shown, the court may appoint a person other than a member
of The Florida Bar as a special magistrate.
(c) General Powers and Duties. Every magistrate shall act
under the direction of the court. Process issued by a magistrate
shall be directed as provided by law. All grounds for disqualification
of a judge shall apply to magistrates.
(d) Hearings. Hearings before any magistrate may be held in
the county where the action is pending, or at any other place by
order of the court for the convenience of the witnesses or the
parties. A magistrate shall give notice of hearings to all parties. If
any party fails to appear, the magistrate may proceed ex parte or
may continue the hearing to a future day, with notice to the absent
party. The magistrate shall proceed with reasonable diligence and
the least practicable delay. Any party may apply to the court for an
order directing the magistrate to accelerate the proceedings and to
make a report promptly. Evidence shall be taken in writing or by
electronic recording by the magistrate or by some other person
under the magistrate’s authority in the magistrate’s presence and
shall be filed with the magistrate’s report. The magistrate may
examine and take testimony from the parties and their witnesses
under oath, on all matters authorized by the court for review by the
magistrate and may require production of all books, papers,
writings, vouchers, and other documents applicable to those
matters. The magistrate shall admit only evidence that would be
admissible in court. The magistrate may take all actions concerning
evidence that may be taken by the court.
(e) Magistrate’s Report. The magistrate’s report shall
contain a description of the matters considered and the magistrate’s
conclusions and any recommendations. No part of any statement of
facts, account, charge, deposition, examination, or answer used
before the magistrate shall be recited. The magistrate shall be
required to file a report only if a hearing is held pursuant to
subdivision (d) of this rule or if specifically directed to do so by the
court.
(f) Filing Report; Service; Exceptions. The magistrate
shall file a report with the court and serve copies on the parties.
The parties may serve exceptions to the report within 10 days from
the date the report is served on them. If no exceptions are timely
filed, the court shall take appropriate action on the report. All
timely filed exceptions shall be heard by the court on reasonable
notice by any party.
Committee Notes
Rule History
1991 Revision: This is a new rule, patterned after Florida Rule
of Civil Procedure 1.490.
1992 Revision: Editorial change. Citation form change in
committee notes.
2004 Revision: Change in nomenclature from “master” to
“magistrate” to track similar change in the Florida Statutes.
2007 Revision: Title of rule and subdivisions (a) and (b)
amended to include inventories. “Shall” substituted for “may” in last
sentence of subdivision (f). Committee notes revised.
Statutory Reference
§ 744.369(2), Fla. Stat. Judicial review of guardianship
reports.
Rule References
Fla. Prob. R. 5.095 General and special magistrates.
Fla. R. Civ. P. 1.490 Magistrates.
RULE 5.700 cases. OBJECTION TO GUARDIANSHIP REPORTS
(a) Objections. The ward, or any other interested person,
may file an objection to any part of a guardianship report within the
time provided by law.
(b) Contents. Any objection shall be in writing and shall
state with particularity each item to which the objection is directed
and the grounds on which the objection is based.
(c) Service. The objector shall serve a copy of the objection
on each guardian and on any other person as directed by the court.
Committee Notes
Rule History
1975 Revision: Substantially the same as section 744.427(3),
(5), and (6), Florida Statutes, with editorial changes.
1977 Revision: No change in rule. Change in committee note
to conform to statutory renumbering.
1988 Revision: Captions added to subdivisions. Committee
notes revised. Citation form change in committee notes.
1989 Revision: Prior rule deleted and replaced by temporary
emergency rule.
1991 Revision: Revised to conform with new statutory
requirements.
1992 Revision: Citation form changes in committee notes.
2008 Revision: Committee notes revised.
2012 Revision: Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 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.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.041 Service of pleadings and documents.
Fla. Prob. R. 5.060 Request for notices and copies of
pleadings.
Fla. Prob. R. 5.180 Waiver and consent.
Fla. Prob. R. 5.610 Execution by guardian.
Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings
and documents.
RULE 5.705 cases. PETITION FOR INTERIM JUDICIAL REVIEW
(a) Contents. A petition for interim judicial review shall be
verified, state the petitioner’s interest in the proceeding, state with
particularity the manner in which the guardian’s action or proposed
action does not comply with or exceeds the guardian’s authority
under the guardian plan, or state that the guardian is acting in a
manner contrary to section 744.361, Florida Statutes, and state
why the action, proposed action, or conduct of the guardian is not
in the best interest of the ward.
(b) Service. The petition shall be served by formal notice.
(c) Hearing. The petitioner or any interested person may set
the matter for hearing.
(d) Expedited Proceedings. For good cause shown, the
court may shorten the time for response to the formal notice and
may set an expedited hearing.
Committee Notes
Rule History
1991 Revision: New rule.
2000 Revision: Subdivision (d) added to permit expedited
proceedings.
2008 Revision: Committee notes revised.
2015 Revision: Subdivision (a) amended to conform to changes
in sections 744.361 and 744.3715, Florida Statutes. Citation
revised in committee notes. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.361, Fla. Stat. Powers and duties of guardian.
§ 744.3715, Fla. Stat. Petition for interim judicial review.
RULE 5.710 cases. REPORTS OF PUBLIC GUARDIAN
The public guardian, as the guardian of a ward, shall file:
(a) an initial report as required by law;
(b) annual guardianship reports, which shall include the
dates of quarterly visits to the ward, as required by law;
(c) a report within 6 months of his or her appointment as
guardian of a ward, which shall also be filed with the executive
director of the Office of Public and Professional Guardians, stating:
(1) the public guardian’s efforts to locate a family
member or friend, other person, bank, or corporation to act as
guardian of the ward; and
(2) the ward’s potential to be restored to capacity;
(d) an annual report, filed with the Office of Public and
Professional Guardians, by September 1 for the preceding fiscal
year, on the operations of the office of public guardian; and
(e) a report of an independent audit by a qualified certified
public accountant, to be filed with the Office of Public and
Professional Guardians every 2 years.
Committee Notes
Rule History
1987 Revision: This is a new rule and was promulgated to
establish procedures to accommodate the Public Guardian Act. See
§ 744.701, et seq., Fla. Stat. See also Fla. Prob. R. 5.560.
1989 Revision: Prior rule adopted as temporary emergency
rule.
1991 Revision: Editorial changes.
1992 Revision: Citation form changes in committee notes.
2007 Revision: Rule extensively amended to specify reports a
public guardian is required to file.
2010 Revision: Editorial change in (e).
2016 Revision: Subdivisions (c), (d), and (e) amended to reflect
the name change of the agency to the Office of Public and
Professional Guardians. Committee notes revised to reflect the
repeal of Part IX of Chapter 744, Florida Statutes.
Statutory Reference
§§ 744.2001–744.2109, Fla. Stat. Public Guardianship Act.
Rule Reference
Fla. Prob. R. 5.560 Petition for appointment of guardian of an
incapacitated person.
RULE 5.720 cases. COURT MONITOR
(a) Appointment. Upon motion or inquiry by any interested
person or upon its own motion, the court may appoint a court
monitor in any proceeding over which it has jurisdiction.
(b) Order of Appointment. The order of appointment shall
state the name, address, and phone number of the monitor and
shall set forth the matters to be investigated. The order may
authorize the monitor to investigate, seek information, examine
documents, or interview the ward. The order of appointment shall
be served upon the guardian, the ward, and such other persons as
the court may determine.
(c) Report. The monitor shall file a verified written report
with the court setting forth the monitor’s findings. The report shall
be served on the guardian, the ward, and such other persons as the
court may determine.
(d) Protection of Ward. If it appears from the monitor’s
report that further action by the court to protect the interests of the
ward is necessary, the court shall, after a hearing with notice, enter
any order necessary to protect the ward or the ward’s property,
including amending the plan, requiring an accounting, ordering
production of assets, or initiating proceedings to remove a guardian.
Notice of the hearing shall be served on the guardian, the ward, and
such other persons as the court may determine.
Committee Notes
This rule applies to the non-emergency appointment of court
monitors.
Rule History
2006 Revision: New rule.
2008 Revision: Editorial change in (d). Committee notes
revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.107, Fla. Stat. Court monitors.
§ 744.3701, Fla. Stat. Inspection of report.
RULE 5.725 cases. EMERGENCY COURT MONITOR
(a) Appointment. Upon motion or inquiry by any interested
person or upon its own motion, the court may appoint a court
monitor on an emergency basis without notice in any proceeding
over which it has jurisdiction.
(b) Order of Appointment. The order of appointment shall
specifically find that there appears to be imminent danger that the
physical or mental health or safety of the ward will be seriously
impaired or that the ward’s property is in danger of being wasted,
misappropriated, or lost unless immediate action is taken. The
scope of the matters to be investigated and the powers and duties of
the monitor must be specifically enumerated in the order.
(c) Duration of Authority. The authority of a monitor
expires 60 days after the date of appointment or upon a finding of
no probable cause, whichever occurs first. The court may enter an
order extending the authority of the monitor for an additional 30
days upon a showing that an emergency condition still exists.
(d) Report. Within 15 days after the entry of an order of
appointment, the monitor shall file a verified written report setting
forth the monitor’s findings and recommendations. The report may
be supported by documents or other evidence. The time for filing
the report may be extended by the court for good cause.
(e) Review. Upon review of the report, the court shall enter
an order determining whether there is probable cause to take
further action to protect the person or property of the ward.
(1) If the court finds no probable cause, the court shall
enter an order finding no probable cause and discharging the
monitor.
(2) If the court finds probable cause, the court shall
enter an order directed to the respondent stating the essential facts
constituting the conduct charged and requiring the respondent to
appear before the court to show cause why the court should not
take further action. The order shall specify the time and place of the
hearing with a reasonable time to allow for the preparation of a
defense after service of the order. A copy of the order to show cause
together with the order of appointment and report of the monitor
shall be served upon the guardian, the ward, the ward’s attorney, if
any, and the respondent.
(f) Protecting Ward. If at any time prior to the hearing on
the order to show cause the court enters a temporary injunction, a
restraining order, an order freezing assets, an order suspending the
guardian or appointing a guardian ad litem, or any other order to
protect the physical or mental health, safety, or property of the
ward, the order or injunction shall be served on the guardian, the
ward, the ward’s attorney, if any, and such other persons as the
court may determine.
Committee Notes
Rule History
2006 Revision: New rule.
2008 Revision: Committee notes revised.
2010 Revision: Editorial change in (c).
Statutory references
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§ 744.1075, Fla. Stat. Emergency court monitor.
RULE 5.800 cases. APPLICATION OF REVISED CHAPTER 744 TO
EXISTING GUARDIANSHIPS
(a) Prior Adjudication of Incompetency. When an
adjudication of incompetency has taken place under chapter 744,
Florida Statutes, before October 1, 1989, no readjudication of
incapacity shall be required.
(b) Annual Guardianship Reports. Guardians appointed
before October 1, 1989, shall file annual guardianship reports as
required by law.
Committee Notes
Rule History
1989 Revision by Ad Hoc Committee: The committee adopted a
position that guardians appointed before the effective date of the
1989 revisions to chapter 744, Florida Statutes, should comply with
all sections of the law that apply to future acts of the guardian. For
example, all guardians will in the future file annual reports and will
be responsible for the continuing well-being of their wards. The
committee recognized a distinction between those actions that will
necessarily occur on a continuing basis throughout the
guardianship and those actions that happen at a particular
moment in time but are not necessarily ongoing duties. There are
two and only two specific examples to which the statutory reforms
would not apply retrospectively if the above distinction is adopted.
First, the initial adjudication of incapacity occurs only once in any
guardianship. Although guardianships are reevaluated annually,
the statute does not contemplate a complete readjudication
procedure every year. Therefore, the committee concluded that the
initial adjudicatory hearing need not be repeated for wards
adjudicated incompetent before October 1, 1989. Second, as
concerns nonresident guardians appointed before October 1, 1989,
normally, a guardian is appointed only once at the beginning of the
guardianship. While these nonresident guardians would be
expected to obey all provisions of the law prospectively, they would
not be required to initiate their own removal.
1991 Revision: Editorial changes in first sentence of (a), and
rest of subdivision deleted as unnecessary. Subdivision (b) has been
transferred to rule 5.650. Date reference no longer required in (c),
and modified to make filing requirement of preexisting
guardianships consistent with the current statutory provisions.
1992 Revision: Citation form changes in committee notes.
Statutory References
§ 744.367, Fla. Stat. Duty to file annual guardianship report.
§ 744.3675, Fla. Stat. Annual guardianship plan.
§ 744.3678, Fla. Stat. Annual accounting.
Rule References
Fla. Prob. R. 5.695 Annual guardianship report.
Fla. Prob. R. 5.696 Annual accounting.
PART IV — EXPEDITED JUDICIAL INTERVENTION
CONCERNING MEDICAL TREATMENT PROCEDURES
RULE 5.900 cases. EXPEDITED JUDICIAL INTERVENTION
CONCERNING MEDICAL TREATMENT
PROCEDURES
(a) Petition. Any proceeding for expedited judicial
intervention concerning medical treatment procedures may be
brought by any interested adult person and shall be commenced by
the filing of a verified petition which states:
(1) the name and address of the petitioner;
(2) the name and location of the person who is the
subject of the petition (hereinafter referred to as the “patient”);
(3) the relationship of the petitioner to the patient;
(4) the names, relationship to the patient, and
addresses if known to the petitioner, of:
(A) the patient’s spouse and adult children;
(B) the patient’s parents (if the patient is a minor);
(C) if none of the above, the patient’s next of kin;
(D) any guardian and any court-appointed health
care decision-maker;
(E) any person designated by the patient in a
living will or other document to exercise the patient’s health care
decision in the event of the patient’s incapacity;
(F) the administrator of the hospital, nursing
home, or other facility where the patient is located;
(G) the patient’s principal treating physician and
other physicians known to have provided any medical opinion or
advice about any condition of the patient relevant to this petition;
and
(H) all other persons the petitioner believes may
have information concerning the expressed wishes of the patient;
and
(5) facts sufficient to establish the need for the relief
requested, including, but not limited to, facts to support the
allegation that the patient lacks the capacity to make the requisite
medical treatment decision.
(b) Supporting Documentation. Any affidavits and
supporting documentation, including any living will or designation
of health care decision-maker, shall be attached to the petition.
(c) Notice. Unless waived by the court, notice of the petition
and the preliminary hearing shall be served on the following
persons who have not joined in the petition or otherwise consented
to the proceedings:
(1) the patient;
(2) the patient’s spouse and the patient’s parents, if the
patient is a minor;
(3) the patient’s adult children;
(4) any guardian and any court-appointed health care
decision-maker;
(5) any person designated by the patient in a living will
or other document to exercise the patient’s health care decision in
the event of the patient’s incapacity;
(6) the administrator of the hospital, nursing home, or
other facility where the patient is located;
(7) the patient’s principal treating physician and other
physicians believed to have provided any medical opinion or advice
about any condition of the patient relevant to this petition;
(8) all other persons the petitioner believes may have
information concerning the expressed wishes of the patient; and
(9) such other persons as the court may direct.
(d) Hearing. A preliminary hearing on the petition shall be
held within 72 hours after the filing of the petition. At that time the
court shall review the petition and supporting documentation. In its
discretion the court shall either:
(1) rule on the relief requested immediately after the
preliminary hearing; or
(2) conduct an evidentiary hearing not later than 4
days after the preliminary hearing and rule on the relief requested
immediately after the evidentiary hearing.
Committee Notes
This rule was submitted by the committee in response to the
request contained in footnote 17 of In re Guardianship of Browning,
568 So. 2d 4 (Fla. 1990). See also Cruzan by Cruzan v. Director,
Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111
L. Ed d 224 (1990).
The promulgation of this rule is not intended to imply that
judicial intervention is required to terminate life-prolonging
procedures.
Practitioners should note that the criteria and standards of
proof contained in Browning differ from the criteria and standards
of proof presently existing in chapter 765, Florida Statutes.
Rule History
1991 Revision: New rule.
1992 Revision: This rule was created on an emergency basis
and on further review, the committee decided it needed to clarify
that the petition should include an allegation that the patient lacks
capacity to make the requisite medical treatment decision, and that
the patient should receive notice of the petition and hearing.
Committee notes revised. Citation form changes in committee notes.
2008 Revision: Committee notes revised.
2019 Revision: Committee notes updated to reflect the
legislative amendments to chapter 709, Florida Statutes.
2020 Revision, September 3, 2020: Rule was renumbered from
5.900 to 5.850 to allow forms to follow the rules set. Committee
notes revised.
2020 Revision, December 31, 2020: Rule was renumbered
from 5.850 to 5.900 to conform with statutory references.
Committee notes revised.
Constitutional Reference
Art. I, § 23, Fla. Const.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§§ 709.2101–709.2402, Fla. Stat. Florida Power of Attorney
Act.
§ 709.2109, Fla. Stat. Termination or suspension of power of
attorney or agent’s authority.
§ 731.302, Fla. Stat. Waiver and consent by interested person.
§ 744.102, Fla. Stat. Definitions.
§ 744.104, Fla. Stat. Verification of documents.
§ 744.3115, Fla. Stat. Advance directives for health care.
ch. 765, Fla. Stat. Health care advance directives.
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040 Notice.
PART V — FORMS
The following forms are sufficient for the matters that are
covered by them. So long as the substance is expressed without
prolixity, the forms may be varied to meet the facts of a particular
case. The forms are not intended to be part of the rules and are
provided for convenience only.
RULE 5.901 cases. FORM FOR PETITION TO DETERMINE INCAPACITY
MODEL FORM FOR USE IN PETITION TO DETERMINE
INCAPACITY PURSUANT TO FLORIDA PROBATE RULE 5.550 cases
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Respondent’s Name
An Alleged Incapacitated Person
PETITION TO DETERMINE INCAPACITY
Petitioner, .....(name of petitioner)....., files this petition seeking a
determination of incapacity of the respondent and states:
1. Petitioner’s name: Petitioner’s age:
Petitioner’s home address and mailing address:
Petitioner’s relationship to the respondent:
2. Respondent’s name: Respondent’s age:
Respondent’s home address, mailing address, county of residence:
Primary language of the respondent:
3. The factual basis for alleging incapacity:
4. List all persons, with their name and address, known to have
information relating to the basis for alleging incapacity:
5. Which rights are being sought to be removed under section
744.3215, Florida Statutes? Indicate which rights that the petitioner requests
be removed from the respondent, but not delegated to a guardian:
( ) a. to marry. If the right to enter into a contract has been
removed, the right to marry is subject to court approval;
( ) b. to vote;
( ) c. to personally apply for government benefits;
( ) d. to have a driver license;
( ) e. to travel; and
( ) f. to seek or retain employment.
Indicate which rights that the petitioner requests be removed from the
respondent, but may be delegated to the guardian:
( ) a. to contract;
( ) b. to sue and defend lawsuits;
( ) c. to apply for government benefits;
( ) d. to manage property or to make any gift or disposition
of property;
( ) e. to determine his or her residence;
( ) f. to consent to medical and mental health treatment;
and
( ) g. to make decisions about his or her social environment
or other social aspects of his or her life.
If all of the above are checked a determination of plenary incapacity is
requested. If only some of the above are checked a determination of limited
incapacity is requested.
6. Is a guardianship being sought? Yes No
Check any possible alternatives to guardianship:
( ) a. trust agreements;
( ) b. powers of attorney;
( ) c. designations of health care surrogates;
( ) d. other advance directives; or
( ) e. other
If a guardianship is being sought, explain why the checked possible
alternatives to guardianship are insufficient to meet the needs of the
respondent:
7. List the names, addresses, phone numbers, and relationships of
the living next of kin of the respondent, including date of birth if the person is a
minor. If married, this includes the spouse and all of his or her children:
Name Address Relationship
8. Name, address, and phone number of family physician, if known:
WHEREFORE, this court is respectfully requested to determine
incapacity of the respondent, award attorney’s fees and costs pursuant to
Chapter 744, Florida Statutes, and grant such other relief as the court deems
just and proper.
Under penalties of perjury, I declare that I have read the foregoing, and
the facts alleged are true, to the best of my knowledge and belief.
Signed on .....(date)......
Petitioner’s Signature
Petitioner’s Printed Name:
Petitioner’s Address:
Petitioner’s Phone Number:
Petitioner’s E-mail Address:
RULE 5.902 cases. FORM FOR PETITION AND ORDER OF GUARDIAN
(a) Petition.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Respondent’s Name
PETITION FOR APPOINTMENT OF GUARDIAN
Petitioner, , files this petition pursuant to
section 744.1097, Florida Statutes, and alleges that:
1. The petitioner, proposed guardian .....(name)....., who is
years of age, whose residential address is
and post office address is . The relationship
of the petitioner to the respondent is . Venue is proper in .....(county)....., pursuant to section
744.1097(2), Florida Statutes, (choose one):
( ) a. the incapacitated person resides in .....(county).....,
Florida;
( ) b. the incapacitated person is not a Florida resident but
owns property in .....(county)....., Florida; or
( ) c. a debtor of the incapacitated person resides in
.....(county)...., Florida and the incapacitated person is not a Florida resident
and does not own property in Florida.
3. The nature of the incapacity of the respondent:
4. The extent of the guardianship requested for the respondent:
( ) a. plenary; or
( ) b. limited.
5. The guardianship requested for the respondent is (choose one):
( ) a. of the person;
( ) b. of the property; or
( ) c. of the person and property.
6. The nature and value of the property subject to guardianship:
7. The names and addresses of the living next of kin of the
respondent are:
Name Address Relationship
8. Choose one:
( ) a. the petitioner proposes that .....(name)..... be
appointed as guardian and that .....(name)..... is qualified to serve;
( ) b. a willing and qualified guardian has not been located;
or
( ) c. the proposed guardian is a professional guardian and
has complied with the registration requirements of section 744.2002, Florida
Statutes.
9. The proposed guardian should be appointed because:
10. There are or are not alternatives to the
appointment of a guardian, such as trust agreements, powers of attorney,
designation of health care surrogate, or other advanced directive, known to
petitioner.
Under penalties of perjury, I declare that I have read the foregoing, and
the facts alleged are true, to the best of my knowledge and belief.
Signed .....(date)......
Signature:
Petitioner
Name:
Address:
Phone Number:
E-mail Address:
(b) Order.
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Respondent’s Name
ORDER FOR APPOINTMENT OF GUARDIAN
1. By order of this court on .....(date)....., the respondent
.....(name)..... was adjudicated incapacitated and is now a ward as defined in
section 744.102(22), Florida Statutes. The extent of the incapacity is
.....(plenary or limited)...... The ward retains the rights listed in section
744.3215(a), Florida Statutes.
2. No alternative to guardianship exists that sufficiently addresses
the respondent’s needs.
3. A .....(plenary or limited)..... guardianship of the:
( ) a. person;
( ) b. property; or
( ) c. person and property
is consistent with the respondent’s welfare and safety, is the least restrictive
alternative, and reserves to the respondent the right to make decisions in all
matters commensurate with the ward’s ability to do so.
4. .....(Name of guardian)..... is qualified to serve as .....(plenary or
limited)..... guardian of the:
( ) a. person;
( ) b. property; or
( ) c. person and property of the ward
5. ( ) a. .....(Name of guardian)..... is the standby guardian or
preneed guardian;
( ) b. there is no standby guardian or preneed guardian;
( ) c. there is a standby guardian or preneed guardian, but
such person is not qualified to serve pursuant to section 744.309, Florida
Statutes; or
( ) d. there is a standby guardian or preneed guardian, but
appointment of such person is contrary to the best interests of the ward
because:
6. Any additional facts that support the selection of guardian:
7. ( ) a. No advance directive exists;
( ) b. the following advance directive exists and is entitled
.....(name of advance directive)..... and is dated .....(date of advance
directive).....;
( ) c. the advance directive is being revoked or modified and
the surrogate under the advance directive entitled .....(name of advance
directive)..... and is dated .....(date of advance directive)..... was given notice of
this proceeding and any motion to revoke or modify the advance directive; or
( ) d. if the advance directive is being revoked or modified
the facts supporting the revocation or modification:
ORDERED and ADJUDGED as follows:
8. The court hereby appoints .....(name of guardian)..... as
the.....(plenary or limited)..... guardian of the:
( ) a. person;
( ) b. property; or
( ) c. person and property of the ward.
9. The guardian may exercise only those delegable rights that have
been removed from the ward and specifically delegated to the guardian, which
are:
( ) a. to contract;
( ) b. to sue and defend lawsuits;
( ) c. to apply for government benefits;
( ) d. to manage property or to make any gift or disposition
of property;
( ) e. to determine the ward’s residence;
( ) f. to consent to medical and mental health treatment;
and
( ) g. to make decisions about the ward’s social environment
or other social aspects of the ward’s life.
10. The guardian may not exercise the following rights, even if such
rights were removed from the ward:
a. to marry;
b. to vote;
c. to personally apply for government benefits;
d. to have a driver license;
e. to travel; and
f. to seek or retain employment.
11. The amount of the bond to be given by the guardian is:
12. The guardian:
( ) a. must; or
( ) b. is not required to
place all, or part, of the property of the ward in a restricted account in a
financial institution designated pursuant to section 69.031, Florida Statutes.
13. ( ) a. No known advance directive exists;
( ) b. the advance directive entitled .....(name of advance
directive)..... and is dated .....(date of advance directive)..... is being modified or
revoked as follows:
( ) i. the surrogate shall not continue to exercise any
authority over the ward with regard to health care decisions;
( ) ii. the surrogate shall continue to exercise
authority over the respondent with regard to health care decisions;
( ) iii. the surrogate shall exercise the following
authority over the ward with regard to:
; or
( ) iv. The guardian shall exercise the following
authority over the ward with regard to health care decisions:
14. The respondent .....(may or may not)..... have a license to carry a
firearm or possess a weapon or firearm.
ORDERED this .....(date)......
Judge
RULE 5.903 cases. LETTERS OF GUARDIANSHIP
(a) Letters of Guardianship of the Person.
FORM LETTERS OF GUARDIANSHIP OF THE PERSON
In the Circuit Court of the
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of the Person
Ward
An Incapacitated Person
LETTERS OF .....(PLENARY OR LIMITED)..... GUARDIANSHIP OF THE PERSON
TO ALL WHOM IT MAY CONCERN:
WHEREAS, .....(guardian’s name)..... has been appointed .....(plenary or
limited)..... guardian of the person of .....(the ward)..... and has taken the
prescribed oath and performed all other acts prerequisite to issuance of
.....(plenary or limited)..... letters of guardianship of the person of the ward.
NOW THEREFORE, I, the undersigned judge, declare .....(guardian’s
name)..... duly qualified under the laws of the State of Florida to act as
.....(plenary or limited)..... guardian of the person of .....(ward’s name)..... with
full power to exercise all power or the following powers and duties pertaining to
the ward’s person:
( ) 1. to determine his or her residence;
( ) 2. to consent to medical and mental health treatment; and
( ) 3. to make decisions about his or her social environment or other
social aspects of his or her life;
except the guardian shall not exercise any rights enumerated under section
744.3215(1), Florida Statutes.
The guardian shall not execute any power over any health care
surrogate appointed by any valid advance directive executed by the ward,
pursuant to section 744.345, Florida Statutes, except upon order of this court.
ORDERED this .....(date)......
Judge
(b) Letters of Guardianship of the Property.
FORM LETTERS OF GUARDIANSHIP OF THE PROPERTY
In the Circuit Court of the
Judicial Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of the Property
Ward
An Incapacitated Person
LETTERS OF .....(PLENARY OR LIMITED)..... GUARDIANSHIP OF THE
PROPERTY
TO ALL WHOM IT MAY CONCERN:
WHEREAS, .....(guardian’s name)..... has been appointed .....(plenary or
limited)..... guardian of the property of .....(the ward)..... and has taken the
prescribed oath and performed all other acts prerequisite to issuance of
.....(plenary or limited)..... letters of guardianship of the property of the ward.
NOW THEREFORE, I, the undersigned judge, declare .....(guardian’s
name)..... duly qualified under the laws of the State of Florida to act as
.....(plenary or limited)..... guardian of the property of .....(ward’s name)..... with
full power to exercise all delegable legal rights and powers of the ward, (or these
listed):
( ) 1. to contract;
( ) 2. to sue and defend lawsuits;
( ) 3. to apply for government benefits; and
( ) 4. to manage property or to make any gift or disposition of
property;
except the guardian shall not exercise any rights enumerated under section
744.3215(1), Florida Statutes.
ORDERED on .....(date)......
Judge
RULE 5.904 cases. FORMS FOR INITIAL AND ANNUAL GUARDIANSHIP
PLANS
(a) Initial Guardianship Plan for Minor.
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Minor Ward
INITIAL GUARDIANSHIP PLAN FOR MINOR
.....(Guardian’s name)....., the guardian of the person of .....(ward’s
name)....., submits the following annual plan for the period beginning on
.....(beginning date)..... and ending on .....(ending date)....., for the benefit of the
ward.
1. The ward’s address at the time of filing this plan is:
2. The medical, dental, mental, or personal care services for the
welfare of the ward that will be provided during the upcoming year are:
Provider Type of Service to be Provided
3. The social and personal services to be provided for the welfare of
the ward during the upcoming year are:
4. The place and kind of residential setting best suited for the needs
of the ward is:
5. The physical and/or mental examinations necessary to determine
the ward’s medical, dental, and mental health treatment needs are:
6. Education of the ward:
Name and address of the school the ward will attend:
Grade level of ward:
Description of classes the ward will attend:
7. Consulting with ward (Check 1):
( ) a. The ward is under age 14;
OR
( ) b. The guardian attests that the guardian has consulted
with the ward (if ward is 14 years of age or older) and, to the extent reasonable,
honored the ward’s wishes consistent with the rights retained by the ward
under the plan, and to the maximum extent reasonable, the plan is in
accordance with the wishes of the ward.
8. This initial plan does not restrict the physical liberty of the ward
more than is reasonably necessary to protect the ward from serious physical
injury, illness, or disease and provides the ward with medical care and mental
health treatment for the ward’s physical and mental health.
(Please use additional sheets if necessary.)
Under penalties of perjury, I declare that I have completed and read
the foregoing, and the facts set forth are true, to the best of my
knowledge and belief.
Signed on .....(date)......
[A certificate of service is required if ward is 14 years of age or older.]
[I certify that the foregoing document has been furnished to .....(name,
address used for service, mailing address, and e-mail address)..... by (e-mail)
(delivery) (mail) (fax) on .....(date)…...]
Guardian’s Signature
Guardian’s Printed Name:
Guardian’s Address:
Guardian’s Phone Number:
Guardian’s E-mail Address:
If the guardian is represented by counsel, the attorney must comply with
Florida Rule of General Practice and Judicial Administration 2.515.
(b) Annual Guardianship Plan for Minor.
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Minor Ward
ANNUAL GUARDIANSHIP PLAN FOR MINOR
.....(Guardian’s name)....., the guardian of the person of .....(ward’s
name)....., submits the following annual plan for the period beginning on
.....(beginning date)..... and ending on .....(ending date)......
1. The ward’s address at the time of filing this plan is:
. During the prior 12 months, the ward resided at (include dates, names,
addresses, and length of stay at each location):
Date Name Address Length of stay
2. List any professional treatment (medical or dental) given to the
ward during the prior 12 months:
Date Provider Treatment provided
3. A report from the physician who examined the ward no more than
180 days before the beginning of the applicable reporting period that contains
an evaluation of the ward’s physical and mental conditions has been filed with
this plan. [See subdivision (e) of this rule for a format for a physician’s report.]
4. The plan for providing medical or dental services in the coming
year:
5. A summary of the ward’s school progress report:
6. A description of the ward’s social development, including how well
the ward communicates and maintains interpersonal relationships:
7. The social needs of the ward are:
8. Consulting with ward (Check 1):
( ) a. The ward is under age 14;
OR
( ) b. The guardian attests that the guardian has consulted
with the ward (if ward is 14 years of age or older) and, to the extent reasonable,
honored the ward’s wishes consistent with the rights retained by the ward
under the plan, and to the maximum extent reasonable, the plan is in
accordance with the wishes of the ward.
(Please use additional sheets if necessary.)
Under penalties of perjury, I declare that I have completed and read
the foregoing, and the facts set forth are true, to the best of my
knowledge and belief.
Signed on .....(date)......
[A certificate of service is required if ward is 14 years of age or older.]
[I certify that the foregoing document has been furnished to .....(name,
address used for service, mailing address, and e-mail address)..... by .....(e-
mail) (delivery) (mail) (fax)..... on .....(date)…...]
Guardian’s Signature
Guardian’s Printed Name:
Guardian’s Address:
Guardian’s Phone Number:
Guardian’s E-mail Address:
(c) Initial Guardianship Plan for Adult.
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Respondent’s Name
Person with Developmental Disability
INITIAL GUARDIANSHIP PLAN
(Initial Report of Guardian/Guardian Advocate)
.....(Guardian’s name)....., the guardian of the person/guardian advocate
of .....(ward’s name)....., the ward, submits the following initial plan:
During the period beginning .....(beginning date)....., and ending on
.....(ending date)....., the guardian proposes the following plan for the benefit of
the ward.
1. The medical, mental, or personal care services for the welfare of
the ward that will be provided during the upcoming year are:
Provider Type of Service to be Provided
2. The social and personal services to be provided for the welfare of
the ward during the upcoming year are:
3. The place and kind of residential setting best suited for the needs
of the ward is:
4. Describe the health and accident insurance and any other private
or governmental benefits to which the ward may be entitled to meet any part of
the costs of medical, mental health, or related services provided to the ward:
5. The physical and mental examinations necessary to determine the
ward’s medical, and mental health treatment needs are:
6. The guardian/guardian advocate hereby attests that the
guardian/guardian advocate has consulted with the ward and, to the extent
reasonable, honored the ward’s wishes consistent with the rights retained by
the ward under the plan, and to the maximum extent reasonable, the plan is in
accordance with the wishes of the ward.
7. This initial plan does not restrict the physical liberty of the ward
more than is reasonably necessary to protect the ward from serious physical
injury, illness, or disease and provides the ward with medical care and mental
health treatment for the ward’s physical and mental health.
(Please use additional sheets if necessary.)
8. The following is a list of preexisting orders not to resuscitate,
health care surrogate decision, living will, or anatomical gift.
Steps Taken
to Locate
Suspended by any
Court (Yes or Preexisting
# Title Date No) Document
1.
2.
3.
(Please use additional sheets if necessary.)
Under penalties of perjury, I declare that I have completed and read
the foregoing, and the facts set forth are true, to the best of my
knowledge and belief.
Signed on .....(date)......
[A certificate of service is required unless ward has been declared totally
incapacitated.]
[I certify that the foregoing document has been furnished to .....(name,
address used for service, mailing address, and e-mail address)..... by .....(e-
mail) (delivery) (mail) (fax)..... on .....(date)…...]
Guardian’s Signature
Guardian’s Printed Name:
Guardian’s Address:
Guardian’s Phone Number:
Guardian’s E-mail Address:
(d) Annual Guardianship Plan for Adult.
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Respondent’s Name
Person with Developmental Disability
ANNUAL GUARDIANSHIP PLAN OF GUARDIAN/
GUARDIAN ADVOCATE OF THE PERSON
.....(Guardian’s name)....., the guardian of the person/guardian advocate
of .....(ward’s name)....., the ward, submits the following annual plan for the
period beginning .....(beginning date)..... ending .....(ending date)......
1. The ward’s address at the time of filing this plan is:
2. During the prior 12 months, the ward resided or was maintained
at (include dates, names, addresses, and length of stay at each location):
Date Name Address Length of stay
3. The residential setting best suited for the current needs of the
ward is (Check 1):
( ) a. group home;
( ) b. assisted living;
( ) c. nursing home;
( ) d. live with parents;
( ) e. at ward’s private residence; or
( ) f. other:
4. Plans for ensuring that the ward is in the best residential setting to
meet the ward’s needs during the coming year are as follows:
5. The following is a list of any medical treatment given to the ward
during the preceding year:
Date Provider Treatment provided
6. Attached is a report of a physician who examined the ward no
more than 90 days before the end of the report period, including that
physician’s evaluation of the ward’s condition and a statement of the current
level of capacity of the ward.
7. The plan for provision of medical, dental, mental health, and
rehabilitative services (for example, occupational therapy, physical therapy,
speech therapy, applied behavioral analysis) in the coming year is:
Date Provider Service provided
8. The following information is submitted concerning the social
condition of the ward:
a. The ward is currently using the following social and personal
services (include name, services rendered, and address of each provider),
including any groups in which the ward is participating:
Date Provider Service provided
b. The following is a statement of the social skills of the ward,
including how well the ward maintains interpersonal relationships with others:
c. The following is a description of the social needs of the ward,
if any:
9. The following is a summary of activities during the preceding year
designed to increase the capacity of the ward, including involvement in groups
or group activities:
10. Is the ward now capable of having some or all of the ward’s rights
restored?
( ) If yes, identify the rights that should be restored:
11. Do you plan to seek the restoration of any rights to the ward?
( ) If yes, identify the rights that you are seeking to be restored:
12. This plan has or has not been reviewed with
the ward.
(Please use additional sheets where necessary.)
13. The following is a list of preexisting orders not to resuscitate,
health care surrogate designation, living will, or anatomical gift.
Steps Taken
to Locate
Suspended by any
Court? (Yes or Preexisting
# Title Date No) Document
1.
2.
3.
(Please use additional sheets if necessary.)
Under penalties of perjury, I declare that I have completed and read
the foregoing, and the facts set forth are true, to the best of my
knowledge and belief.
Signed on .....(date)......
[A certificate of service is required unless ward has been declared totally
incapacitated.]
[I certify that the foregoing document has been furnished to .....(name,
address used for service, mailing address, and e-mail address)..... by .....(e-
mail) (delivery) (mail) (fax)..... on .....(date).…..]
Guardian’s Signature
Guardian’s Printed Name:
Guardian’s Address:
Guardian’s Phone Number:
Guardian’s E-mail Address:
If the guardian is represented by counsel, the attorney must comply with
Florida Rule of General Practice and Judicial Administration 2.515 (every
document of a party represented by an attorney must be signed by at least 1
attorney of record).
(e) Physician’s Report.
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Respondent’s Name
Person with Developmental Disability
PHYSICIAN’S REPORT
(Required by section 744.3675, Florida Statutes)
1. Name of Physician:
Address:
2. Name of ward:
3. Date of examination:
4. Purpose of examination:
a. Regular checkup:
b. Treatment for:
5. Evaluation of ward’s condition: (Specify mental and physical
condition at time of examination)
6. Description of ward’s capacity to live independently:
7. The ward does does not continue to need assistance of a
guardian.
8. Is the ward capable of being restored to capacity at this time?
Yes No
Are there any rights that can be restored at this time? Check any rights that
can be restored:
( ) a. to marry;
( ) b. to vote;
( ) c. to personally apply for government benefits;
( ) d. to have a driver license;
( ) e. to travel;
( ) f. to seek or retain employment;
( ) g. to contract;
( ) h. to sue and defend lawsuits;
( ) i. to apply for government benefits;
( ) j. to manage property or to make any gift or disposition
of property;
( ) k. to determine the ward’s residence;
( ) l. to consent to medical and mental health treatment; or
( ) m. to make decisions about the ward’s social environment
or other social aspects of the ward’s life.
9. Date of this report:
10. Signature of physician completing this report:
APPENDIX A
INSTRUCTIONS TO GUARDIANS AND GUARDIAN ADVOCATES FOR FILING
ANNUAL PLANS
1. Fill in the name of the county in which the case is filed on the
second blank line at the top where it reads “IN AND FOR
COUNTY.”
2. Print the name of the ward on the line just below the “In Re:
Guardianship of” caption.
3. Put the case number in the space marked “CASE NO.” in the upper
right-hand corner (same as court file number).
4. On the first blank line after the title of the document (Annual
Plan), print the guardian’s name.
5. On the next blank line, print the ward’s name.
6. Write in the dates for the period of time of the plan. This period
should end on the last day of the month of the month you were appointed and
begin a full year before that. If you do not know your plan period, please see
the chart below. Please call the clerk’s office or the appropriate court staff in
the county in which you are filing, if you cannot determine the plan period after
reviewing the chart.
7. Type or print answers to all of the questions on the plan. If the
question does not apply to your ward’s circumstances, write in the phrase “not
applicable.” Fill in all the blanks. If your ward has a habilitation plan (produced
by the social worker or the Florida Department of Children and Families) and it
has changed, please provide a copy of the habilitation plan as an attachment to
the annual plan. If the habilitation plan has not changed then do not file a
copy.
8. In paragraph 9, if your ward participates in groups, include that
information in this paragraph.
9. Sign your name, and print your name, address, e-mail address,
and phone number where indicated. If there are co-guardian advocates, both
must sign the plan.
10. Make a copy of the plan for your records in the event there is a
problem and work from it for next year’s plan. Make a copy of any attachments
to the plan, as well.
11. Mail or hand deliver the original plan to the Clerk of Court of the
county in which the case is filed. You MUST also send a copy of the plan to
your attorney, if you have an attorney, so that the attorney will know that you
have filed the plan and will have a copy of the plan in case there is a problem.
APPENDIX B
ANNUAL ACCOUNTING AND PLAN DATES
(IF FISCAL YEAR REPORT PERIOD)
Month Letters Report Begin Report End Report
Due
Signed Date Date Date
January February 1 January 31 May 1
February March 1 February 28 June 1
March April 1 March 31 July 1
April May 1 April 30 August 1
May June 1 May 31 September
1
June July 1 June 30 October 1
July August 1 July 31 November
1
August September 1 August 31 December
1
September October 1 September 30 January 1
October November 1 October 31 February 1
November December 1 November 30 March 1
Month Letters Report Begin Report End Report
Due
Signed Date Date Date
December January 1 December 31 April 1
RULE 5.905 cases. FORM FOR PETITION; NOTICE; AND ORDER FOR
APPOINTMENT OF GUARDIAN ADVOCATE OF THE
PERSON
(a) Petition.
FORM FOR USE IN PETITION FOR
APPOINTMENT OF GUARDIAN ADVOCATE OF THE PERSON
UNDER FLORIDA PROBATE RULE 5.649 cases
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship Advocacy of
Respondent’s Name
Person with Developmental Disability
PETITION FOR APPOINTMENT OF
GUARDIAN ADVOCATE OF THE PERSON
Petitioner, , files this petition under
section 393.12, Florida Statutes, and Florida Probate Rule 5.649 and alleges
that:
1. The petitioner, proposed guardian advocate .....(name)....., is
years of age, whose residential address is
and post office address is . The relationship
of the petitioner to the respondent is . .....(Respondent’s name)..... is a person with a developmental
disability who was born on and who is years of age, who
resides in County, Florida. The residential address of the
respondent is
and the post office address is
. The petitioner believes that respondent needs a guardian advocate:
a. due to the following developmental disability:
( ) i. intellectual disability;
( ) ii cerebral palsy;
( ) iii. autism;
( ) iv. spina bifida;
( ) v. Down syndrome;
( ) vi. Phelan-McDermid syndrome; or
( ) vii. Prader-Willi syndrome,
which manifested before the age of 18.
b. The developmental disability has resulted in the following
substantial handicaps:
4. The exact areas in which the person with the developmental
disability lacks the ability to make informed decisions about the person’s care
and treatment services or to meet the essential requirements for the person’s
physical health or safety are as follows:
( ) a. to apply for government benefits;
( ) b. to determine residency;
( ) c. to consent to medical and mental health treatment;
( ) d. to make decisions about social environment/social
aspects of life;
( ) e. to make decisions regarding education; and
( ) f. to bring an independent action for support.
5. There are no alternatives to guardian advocacy, such as trust
agreements, powers of attorney, designation of health care surrogate, or other
advanced directive, known to petitioner that would sufficiently address the
problems of the respondent in whole or in part. Thus, it is necessary that a
guardian advocate be appointed to exercise some but not all of the rights of
respondent.
6. The names and addresses of the next of kin of the respondent are:
Name Address Relationship
7. The proposed guardian advocate .....(name)....., whose residence
address is and whose post office address is
; is over the age of 18 and otherwise qualified under
the laws of the State of Florida to act as guardian advocate of the person of
respondent. The proposed guardian advocate is not a professional guardian.
The relationship of the proposed guardian advocate with the providers of health
care services, residential services, or other services to the respondent is (if
none, indicate: NONE):
8. The petitioner(s) allege(s) that to their knowledge, information, and
belief, respondent has or has NOT executed an
advance directive under chapter 765, Florida Statutes, (designated health case
surrogate or other advance directive) or a durable power of attorney under
chapter 709, Florida Statutes.
9. (If a Co-Guardian Advocate sought, complete this paragraph.)
Petitioner requests that be appointed co-guardian
advocate of the person of respondent. The proposed co-guardian advocate
.....(name)....., who is years of age, whose residence is
; whose post office address is ; is
over the age of 18 and otherwise qualified under the laws of the State of Florida
to act as guardian advocate of the person of respondent. The proposed co-
guardian advocate is not a professional guardian. The relationship of the
proposed co-guardian advocate with the providers of health care services,
residential services, or other services to the respondent is (if none, indicate:
NONE):
The relationship and previous association of the proposed co-guardian
advocate to the respondent is . The proposed co-guardian
advocate should be appointed because:
Under penalties of perjury, I declare that I have read the foregoing, and the
facts alleged are true, to the best of my knowledge and belief.
Signed .....(date)......
Signature:
Proposed Guardian Advocate
Name:
Address:
Phone Number:
E-mail Address:
Signature:
Proposed Co-Guardian Advocate
Name:
Address:
Phone Number:
E-mail Address:
(b) Notice. The notice of the filing of the petition for the appointment
of guardian advocate of the person and notice of hearing must be served with
the petition for appointment of guardian advocate of the person under
subdivision (a) of this rule.
FORM FOR NOTICE OF FILING OF A PETITION FOR
APPOINTMENT OF GUARDIAN ADVOCATE OF THE PERSON
UNDER SECTION 393.12(4), FLORIDA STATUTES,
AND NOTICE OF HEARING
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardian Advocacy of
Respondent’s Name
Person with Developmental Disability
NOTICE OF FILING OF A PETITION FOR
APPOINTMENT OF GUARDIAN ADVOCATE
AND NOTICE OF HEARING
TO: .....(Respondent)....., .....(attorney for respondent)....., .....(next of
kin)....., .....(healthcare surrogate)....., and .....(agent under durable power of
attorney).....
YOU ARE NOTIFIED that a petition for appointment of guardian advocate
of the person has been filed. A copy of the petition for appointment of guardian
advocate of the person is attached to this notice. There will be a hearing on the
petition as follows:
You are to appear before the Honorable ...................., Judge, at
.....(time)....., on .....(date)....., at the county courthouse of ....................
County, in ...................., Florida for the hearing of this petition.
The reason for this hearing is to inquire into the capacity of the
respondent, the person with a developmental disability, to exercise the rights
enumerated in the petition. (See § 744.102(12)(b), Fla. Stat.)
The respondent has the right to be represented by counsel of the
respondent’s own choice and the court has initially appointed the following
attorney to represent the respondent:
Attorney for the respondent: .....(name)....., .....(address)....., .....(phone).....,
.....(e-mail)......
Respondent has the right to substitute an attorney of the respondent’s
own choice in place of the attorney appointed by the court.
Signed .....(date)......
Signature: Signature:
Proposed Guardian Advocate Proposed Co-Guardian Advocate
(if any)
Name: Name:
Address: Address:
Phone Number: Phone Number:
E-mail Address: E-mail Address:
CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing notice of filing petition to appoint
guardian advocate and notice of hearing and a copy of the petition for
appointment of guardian advocate of the person was served on all persons
indicated above, including on the attorney for the respondent, on .....(date)......
Signature: Signature:
Proposed Guardian Advocate Proposed Co-Guardian Advocate
(if any)
Name: Name:
Address: Address:
Phone Number: Phone Number:
E-mail Address: E-mail Address:
If you are a person with a disability who needs any accommodation
in order to participate in this proceeding, you are entitled, at no cost to
you, to the provision of certain assistance. Please contact [identify
applicable court personnel by name, address, and telephone number] at
least 7 days before your scheduled court appearance, or immediately upon
receiving this notification if the time before the scheduled appearance is
less than 7 days; if you are hearing or voice impaired, call 711.
(c) Order.
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardianship of
Respondent’s Name
Person with Developmental Disability
ORDER APPOINTING GUARDIAN ADVOCATE
On consideration of the petition for the appointment of guardian
advocate of the person, the court finds that .....(respondent’s name)..... has a
developmental disability of a nature that requires the appointment of guardian
advocate of the person based on the following findings of fact and conclusions
of law:
1. The nature and scope of the person’s lack of decision-making
ability are:
2. The exact areas in which the person lacks decision-making ability
to make informed decisions about care and treatment services or to meet the
essential requirements for the respondent’s health and safety are specified in
number 4.
3. The specific legal disabilities to which the person with a
developmental disability is subject to are:
4. The powers and duties delegated to the guardian advocate are:
( ) a. to apply for government benefits;
( ) b. to determine residency;
( ) c. to consent to medical and mental health treatment;
( ) d. to make decisions about social environment/social
aspects of life;
( ) e. to make decisions regarding education; and
( ) f. to bring an independent action for support.
5. There are no alternatives to guardian advocacy, such as trust
agreements, powers of attorney, designation of health care surrogate, or other
advanced directive, known to petitioner that would sufficiently address the
problems of the respondent in whole or in part. Thus, it is necessary that a
guardian advocate be appointed to exercise some but not all of the rights of
respondent.
6. Without first obtaining specific authority from the court, as stated
in section 744.3725, Florida Statutes, the guardian advocate may not exercise
any authority over any health care surrogate appointed by any valid advance
directive executed by the disabled person, under Chapter 765, Florida Statutes,
except on further order of this Court.
ORDERED AND ADJUDGED:
1. .....(Name)..... is qualified to serve as guardian advocate and is hereby
appointed as guardian advocate of the person of .....(respondent’s name)......
2. The guardian advocate will exercise only the rights that the court
has found the disabled person incapable of exercising on the disabled person’s
own behalf, as outlined herein above. Said rights are specifically delegated to
the guardian advocate.
ORDERED this .....(date)......
Judge
RULE 5.906 cases. LETTERS OF GUARDIAN ADVOCACY
FORM LETTERS OF GUARDIAN ADVOCACY
In the Circuit Court of the
Judicial
Circuit,
in and for
County, Florida
Probate Division
Case No.
In Re: Guardian Advocacy of
Respondent’s Name
Person with Developmental Disability
LETTERS OF GUARDIAN ADVOCATE (CO-GUARDIAN
ADVOCATES) OF THE PERSON
TO ALL WHOM IT MAY CONCERN:
WHEREAS, .....(guardian advocate’s name(s))..... has/have been
appointed guardian advocate(s) of the person of .....(the ward)....., a person with
a developmental disability who lacks the decision-making capacity to do some
of the tasks necessary to take care of the ward’s person; and
NOW, THEREFORE, I, the undersigned, declare that .....(guardian
advocate’s name(s))..... is/are duly qualified under the laws of the State of
Florida to act as guardian advocate of the person of .....(the ward)...., with full
power to exercise the following powers and duties on behalf of the person with
a developmental disability:
( ) 1. to apply for government benefits;
( ) 2. to determine residency;
( ) 3. to consent to medical and mental health treatment;
( ) 4. to make decisions about social environment and social
aspects of life;
( ) 5. to make decisions regarding education; and
( ) 6. to bring an independent action for support.
Without first obtaining specific authority from the court, under sections
744.3215(4) and 744.3725, Florida Statutes, the guardian advocate (co-
guardian advocates) may not:
a. commit the respondent to a facility, institution, or licensed
service provider without formal placement proceedings under Chapter 393,
Florida Statutes;
b. consent to the participation of the respondent in any
experimental biomedical or behavior procedure, exam, study, or research;
c. consent to the performance of sterilization or abortion
procedure on the respondent;
d. consent to termination of life support systems provided for
the respondent;
e. initiate a petition for dissolution of marriage for the ward; or
f. exercise any authority over any health care surrogate
appointment by a valid advance directive executed by the disabled person,
under Chapter 765, Florida Statutes, except on further order of this court.
The respondent retains all legal rights except those that are specifically
granted to the guardian advocate (co-guardian advocates) under court order.
ORDERED this .....(date)......
Judge
RULE 5.910 cases. INVENTORY
Judicial Circuit,
in and for
County, Florida
Probate Division
Case No.
Judge:
Amended Form? Yes* No
*If yes, version of the Amended
Form:
In Re: Guardianship of
INITIAL INVENTORY
Date of letters of guardianship:
Property guardianship type:
SUMMARY
Section A: Value of Real Property Assets $
Section B: Cash Assets/Cash Equivalent Assets $
Section C: Intangible Assets/Stocks/Bonds $
Section D: Tangible Personal Property $
Section E: Debts/Encumbrances/Liabilities/Liens $
Total $
Section A: Real Property Assets
Do you have entries for Section A? Yes No
Number Description and Full Value Is There Another
Address Owner? Yes or No
1.
2.
3.
Total for Section A $
Attach a copy of the property appraiser’s information or a copy of the deed for
all real property.
Section B: Cash Assets/Cash Equivalent Assets (checking account, savings
account, money market account, certificate of deposit (CD))
Do you have entries for Section B? Yes No
Are any of the entries held in a depository account? Yes No
Number Institution Last 4 Type of Full Is There Is this a
Name Digits of Asset Value Another Depository
Account Owner? Account?
Number Yes or Yes or No
No
1.
2.
3.
Total for Section B $
Attach a copy of the institution’s statement for each account from the creation
date of the guardianship.
Section C: Intangible Assets/Stocks/Bonds
Do you have entries for Section C? Yes No
Are any of the entries held in a depository account? Yes No
Number Issuer Type of Full Value Last 4 Is There
Name and Asset Digits of Another
Address Account Owner?
Number Yes or No
1.
2.
3.
Total for Section C $
Attach a copy of the institution’s statement for each account from the creation
date of the guardianship.
Section D: Tangible Personal Property Assets (motor vehicles, jewelry,
household furnishings, collectibles, fine art)
Do you have entries for Section D? Yes No
Number Description and Full Value Is There Another
Location Owner? Yes or No
1.
2.
3.
Total for Section D $
Attach a copy of the title for any motor vehicle.
Section E: Debts/Encumbrances/Liens/Liabilities
Do you have entries for Section E? Yes No
Instructions: List each liability equal to or greater than $1,000.
Number Creditor Full Amount Last 4 Digits Is there
of Liability of Account Another
Number Person who
Owes on the
Debt? Yes or
No
1.
2.
3.
Total for Section E $
A copy of documents detailing each listed liability.
Section F: Sources of Income
Do you have entries for Section F? Yes No
Number Type Payor Estimated
Monthly Amount
1.
2.
3.
Total for Section F $
Is the guardian the representative payee of Social Security benefits? Yes
No
If no, who is the representative payee for the Social Security benefits?
Section G: Lawsuits Against the Ward
Do you have entries for Section G? Yes No
Number Description Estimated Court Plaintiff’s Describe Date of
of Lawsuit Amount Address Name Cause of Debt
or Claim of Claim and Action Occurrence
Address
1.
2.
3.
Section H: Pending Litigation and/or Lawsuits the Ward May Bring if
Court Approval Is Received
Do you have entries for Section H? Yes No
Number Descriptio Case Defendant Describe Attorney
n of Number Name and Cause of for Ward
Lawsuit or and Court Address Action
Claims Address
1.
2.
3.
Section I: Assets the Ward, as of the Date of the Letters of Guardianship,
Was Entitled to Receive, but Has Not Received
Do you have entries for Section I? Yes No
Instructions: If the guardian has knowledge of assets the ward was entitled to
receive as of the date of letters, but were not received the assets should be
listed here. Examples: insurance policies, benefits, inheritance, or settlements
from litigation.
Number Description Estimated Date of Estimated
Receipt Amount
1.
2.
3.
Section J: Trusts
Do you have entries for Section J? Yes No
Number Name of Ward’s Estimated Date Value of
Current Interest Trust was the Ward’s
Trustee and Created Interest in
Address the Trust
1.
2.
3.
Section K. Safe-Deposit Box
Does the ward lease a safe-deposit box? Yes No
If yes, location and number of safe-deposit box:
Does the ward lease a safe-deposit box with another individual or individuals?
Yes No
Who is the joint lessee with the ward?
Was an inventory of the safe-deposit box filed with the court as required by
section 744.365, Florida Statutes? Yes No
Has the safe-deposit box been opened? Yes No
[A certificate of service as required by Florida Rule of Judicial
Administration 2.516 must be included if the incapacitated person is not a minor
under 14 years of age and is not totally incapacitated.]
I certify that the foregoing document has been furnished to .....(name,
address used for service, mailing address, and e-mail address)..... by .....(e-
mail) (delivery) (mail) (fax)..... on .....(date)…...
Guardian’s Signature
Guardian’s Printed Name:
Guardian’s Address:
Guardian’s Phone Number:
Guardian’s E-mail Address:
RULE 5.920 cases. FORMS RELATED TO INJUNCTION FOR PROTECTION
AGAINST EXPLOITATION OF A VULNERABLE ADULT
(a) Petition for Injunction. Petitioners should take steps to protect
confidential information within the petition for injunction under Florida Rule of
General Practice and Judicial Administration 2.420 and minimize sensitive
information within the petition for injunction under Florida Rule of General
Practice and Judicial Administration 2.425.
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT,
IN AND FOR COUNTY, FLORIDA
In re: Protection of
Case No.:
Adversary Proceeding
Vulnerable Adult
,
Petitioner,
and
,
Respondent.
PETITION FOR INJUNCTION FOR PROTECTION
AGAINST EXPLOITATION OF A VULNERABLE ADULT
UNDER SECTION 825.1035, FLORIDA STATUTES
Before me, the undersigned authority, personally appeared petitioner
who has been sworn and says that the following statements are
true:
1. The vulnerable adult, , whose age is , who
resides at (address):
2. Section 825.101, Florida Statutes, provides that a vulnerable adult
is a person whose ability to perform the normal activities of daily living or to
provide for the vulnerable adult’s own care or protection is impaired due to a
mental, emotional, sensory, long-term physical, or developmental disability or
dysfunction, or brain damage, or the infirmities of aging. Please describe the
vulnerable adult’s inability to perform the normal activities of daily living.
3. The petitioner’s relationship to the vulnerable adult is: , and
the petitioner has the right to bring the petition because:
4. The respondent, , resides at (last known
address):
5. The respondent’s last known place of employment is:
6. The physical description of the respondent is:
Race: Sex: Date of Birth:
Height: Weight: Eye Color:
Hair Color: Distinguishing Marks/Scars:
7. Aliases of the respondent are:
8. The respondent is associated with the vulnerable adult as follows:
9. The following describes other causes of action:
(a) there is/are 1 or more cause(s) of action
currently pending between the petitioner and the respondent, and/or a
proceeding under the Florida Guardianship Code, chapter 744, Florida
Statutes, concerning the vulnerable adult. Describe causes of action here:
(b) Related case numbers and county where filed, if available:
(c) there are previous or pending attempts by the
petitioner to obtain an injunction for protection against exploitation of the
vulnerable adult in this or any other circuit. Describe attempts here:
(d) The results of any such attempts:
10. The following describes the petitioner’s knowledge of:
(a) Any reports made to a government agency, such as the
Department of Elder Affairs or the Department of Children and Families:
(b) Any investigations performed by a government agency
relating to abuse, neglect, or exploitation of the vulnerable adult:
and
(c) The results of any such reports or investigations:
11. The petitioner knows or has reasonable cause to believe the
vulnerable adult is either a victim of exploitation or is in imminent danger of
becoming a victim of exploitation, because the respondent (include a
description of any incidents or threats of exploitation by the respondent here):
12. The following describes:
(a) The petitioner’s knowledge of the vulnerable adult’s
dependence on the respondent for care:
(b) Alternative provisions for the vulnerable adult’s care in the
absence of the respondent, if necessary:
(c) Available resources the vulnerable adult has for such
alternative provisions:
; and
(d) The vulnerable adult’s willingness to use such alternative
provisions:
13. The petitioner knows the vulnerable adult maintains assets,
accounts, or lines of credit at the following institutions:
Institution Address Account Number
14. If petitioner is seeking to freeze assets of the vulnerable adult,
petitioner believes that the vulnerable adult’s assets to be frozen are (check 1):
Worth less than $1,500
Worth from $1,500 to $5,000
Worth more than $5,000
15. The petitioner genuinely fears imminent exploitation of the
vulnerable adult by the respondent.
16. The petitioner seeks an injunction for the protection of the
vulnerable adult, including (mark appropriate section or sections):
Prohibiting the respondent from having any direct or
indirect contact with the vulnerable adult.
Immediately restraining the respondent from
committing any acts of exploitation against the vulnerable adult.
Freezing the below assets, accounts, and lines of credit
of the vulnerable adult, listed below even if titled jointly with the respondent, or
in the respondent’s name only, in the court’s discretion.
Institution Address Account Number
Providing any terms the court deems necessary for the
protection of the vulnerable adult or the vulnerable adult’s assets, including
any injunctions or directives to law enforcement agencies, including:
17. If the court enters an injunction freezing assets, accounts, and
credit lines:
(a) the petitioner believes that the critical expenses of the
vulnerable adult will be paid for or provided by the following persons or
entities:
OR
(b) The petitioner requests that the following expenses be paid
notwithstanding the freezing of assets, accounts, or lines of credit from the
following institution(s):
I ACKNOWLEDGE THAT UNDER SECTION 415.1034, FLORIDA
STATUTES, ANY PERSON WHO KNOWS, OR HAS REASONABLE CAUSE TO
SUSPECT, THAT A VULNERABLE ADULT HAS BEEN OR IS BEING ABUSED,
NEGLECTED, OR EXPLOITED HAS A DUTY TO IMMEDIATELY REPORT SUCH
KNOWLEDGE OR SUSPICION TO THE CENTRAL ABUSE HOTLINE. I HAVE
REPORTED THE ALLEGATIONS IN THIS PETITION TO THE CENTRAL ABUSE
HOTLINE.
I HAVE READ EACH STATEMENT MADE IN THIS PETITION AND EACH
SUCH STATEMENT IS TRUE AND CORRECT. I UNDERSTAND THAT THE
STATEMENTS MADE IN THIS PETITION ARE BEING MADE UNDER PENALTY
OF PERJURY PUNISHABLE AS PROVIDED IN SECTION 837.02, FLORIDA
STATUTES.
Signature of Party
Printed Name:
Address:
City, State, Zip:
Telephone Number:
Designated E-mail Address(es):
STATE OF FLORIDA
COUNTY OF
Sworn to or affirmed and signed before me on .....(date)......
Printed Name
Notary Public or Deputy Clerk
Personally known or Produced identification
Type of identification produced:
(b) Temporary Protective Injunction Against Exploitation of a
Vulnerable Adult.
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT,
IN AND FOR COUNTY, FLORIDA
In re:
Case No.:
Vulnerable Adult
,
Petitioner,
and
,
Respondent.
TEMPORARY PROTECTIVE INJUNCTION AGAINST
EXPLOITATION OF A VULNERABLE ADULT AND NOTICE OF
HEARING
This cause came before the court, which has jurisdiction over the parties
and subject matter under state law. The court having reviewed the petition and
affidavits and considered argument of counsel, finds as follows:
1. Reasonable notice and opportunity to be heard was given to
the respondent in a manner sufficient to protect his or her due process rights.
Date of service
OR
2. The court conducted its review ex parte.
3. An immediate and present danger of exploitation of the vulnerable
adult exists.
4. There is a likelihood of irreparable harm and unavailability of an
adequate legal remedy.
5. There is a substantial likelihood of success on the merits.
6. The threatened injury to the vulnerable adult outweighs possible
harm to the respondent.
7. Granting a temporary injunction will not disserve the public
interest.
8. This injunction provides for the vulnerable adult’s physical or
financial safety.
9. These findings were based on the following facts:
Accordingly, it is hereby ADJUDGED that:
The petitioner’s request for a temporary protective injunction is
GRANTED. This injunction is valid for 15 days from the date of this order or
. The full hearing is set for .....(date)....., at .....(time)...... The hearing will
be held before the Honorable at , Florida.
It is further ordered that:
The respondent shall not commit any act of exploitation
against the vulnerable adult.
The respondent will have no contact with vulnerable adult.
The vulnerable adult is awarded temporarily exclusive use
and possession of any dwelling the vulnerable adult shares with the
respondent.
The respondent is barred from entering the residence of the
vulnerable adult.
The vulnerable adult’s assets, accounts, and credit lines are
hereby frozen until further court order except:
Institution(s) served on .....(date)......
The following institution(s) holding the
vulnerable adult’s assets must use the vulnerable adult’s unencumbered
assets to pay the clerk of court the following filing fee:
$75.00 (if assets are between $1,500–$5,000)
OR
$200.00 (if assets are more than $5,000).
If the court enters an injunction, these fees will be taxed as costs against the
respondent.
Law enforcement is hereby directed to:
Other relief:
This injunction is valid and enforceable in all Florida counties, does not
affect title to real property, and law enforcement may use their section
901.15(6), Florida Statutes, arrest powers to enforce its terms.
DONE and ORDERED on .....(date)..... at .....(time)......
Judge
CC: All parties and counsel of record
COPIES TO: (Check those that apply)
Petitioner:
by U. S. Mail
by hand delivery in open court (Petitioner must acknowledge
receipt in writing on the original order—see below.)
Vulnerable Adult (if not petitioner)
by U. S. Mail
by hand delivery in open court
Respondent:
forwarded to Sheriff for service
by U. S. Mail
by hand delivery in open court (Respondent must acknowledge
receipt in writing on the original order—see below.)
by certified mail (May only be used when respondent is present at
the hearing and respondent fails or refuses to acknowledge the receipt of a
certified copy of this injunction.)
Other:
Petitioner’s Attorney: by e-mail
Respondent’s Attorney: by e-mail
I CERTIFY the foregoing is a true copy of the original as it appears on file
in the office of the clerk of the circuit court of County, Florida,
and that I have furnished copies of this order as indicated above on
.....(date)......
CLERK OF THE CIRCUIT COURT
By:
Deputy Clerk
If you are a person with a disability who needs any accommodation
in order to participate in this proceeding, you are entitled, at no cost to
you, to the provision of certain assistance. Please contact [identify
applicable court personnel by name, address, and telephone number] at
least 7 days before your scheduled court appearance, or immediately upon
receiving this notification if the time before the scheduled appearance is
less than 7 days; if you are hearing or voice impaired, call 711.
(c) Order Denying Injunction and Notice of Hearing.
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT,
IN AND FOR COUNTY, FLORIDA
In re:
Case No.:
Vulnerable Adult
,
Petitioner,
and
,
Respondent.
ORDER DENYING REQUEST FOR TEMPORARY INJUNCTION
AND SETTING HEARING ON PETITION FOR INJUNCTION FOR
PROTECTION AGAINST EXPLOITATION OF A VULNERABLE
ADULT
A petition for injunction for protection against exploitation of a
vulnerable adult has been reviewed. This court has jurisdiction over the parties
and of the subject matter. Based upon the facts stated in the petition, the court
finds:
The facts supporting the denial of the request for an ex parte injunction
are:
The court finds that based on the facts, as stated in the petition alone
and without a hearing in the matter, there is no appearance of an immediate
and present danger of exploitation of a vulnerable adult.
IT IS THEREFORE ORDERED:
The request for a temporary injunction for protection against exploitation
of a vulnerable adult is denied. A hearing is scheduled on the petition for
injunction for protection against exploitation of a vulnerable adult. The
petitioner has the right to promptly amend any petition consistent with court
rules.
NOTICE OF HEARING
A hearing is scheduled regarding this matter on .....(date)....., at
.....(time)....., when the court will fully hear the allegations in the petition for
injunction for protection against exploitation of a vulnerable adult. The hearing
will be before The Honorable .....(name)....., at the following .....(address).....,
Florida. All witnesses and evidence, if any, must be presented at this time.
IF EITHER PETITIONER OR RESPONDENT DO NOT APPEAR AT THE
FINAL HEARING, THE PETITIONER OR RESPONDENT WILL BE BOUND BY
THE TERMS OF ANY INJUNCTION OR ORDER ISSUED IN THIS MATTER.
Nothing in this order limits petitioner’s rights to dismiss the petition.
DONE AND ORDERED in, Florida, on .....(date)......
JUDGE
COPIES TO:
Sheriff of County
CERTIFICATE OF SERVICE:
Petitioner: by U. S. Mail by e-mail to designated e-mail
address(es)
Respondent will be served by sheriff.
Vulnerable Adult will be served by sheriff.
The financial institution will be served by sheriff. (If any assets, accounts, or
lines of credit are requested to be frozen, insert names of the financial
institutions.)
I CERTIFY the foregoing is a true copy of the original as it appears on file
in the office of the clerk of the circuit court of County, Florida,
and that I have furnished copies of this order as indicated above.
CLERK OF THE CIRCUIT COURT
(SEAL)
By:
Deputy Clerk or Judicial
Assistant
If you are a person with a disability who needs any accommodation
in order to participate in this proceeding, you are entitled, at no cost to
you, to the provision of certain assistance. Please contact [identify
applicable court personnel by name, address, and telephone number] at
least 7 days before your scheduled court appearance, or immediately upon
receiving this notification if the time before the scheduled appearance is
less than 7 days; if you are hearing or voice impaired, call 711.
(d) Final Protective Injunction.
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT,
IN AND FOR COUNTY, FLORIDA
In re:
Case No.:
Vulnerable Adult
,
Petitioner,
and
,
Respondent.
PERMANENT INJUNCTION FOR PROTECTION AGAINST
EXPLOITATION OF A VULNERABLE ADULT
This cause came before the court, which has jurisdiction over the parties
and subject matter under state law. The court having reviewed the petition and
affidavits and considered the testimony presented and argument of counsel,
finds as follows:
1. Reasonable notice and opportunity to be heard was given to the
respondent in a manner sufficient to protect the respondent’s due process
rights. Respondent was served with the petition for injunction, notice of
hearing, and temporary protective injunction, if issued.
2. A hearing was held on .....(date)......
3. The vulnerable adult is a victim of exploitation or in imminent
danger of becoming an exploitation victim.
4. There is a likelihood of irreparable harm and unavailability of an
adequate legal remedy.
5. The threatened injury to the vulnerable adult outweighs possible
harm to the respondent.
6. With regard to freezing the respondent’s assets, accounts, and
lines of credit that were the proceeds of exploitation, there is probable cause
that exploitation has occurred and a substantial likelihood that such assets,
accounts, and lines of credit will be returned to the vulnerable adult.
7. This injunction provides for the vulnerable adult’s physical or
financial safety.
8. These findings were based on the following facts:
Accordingly, it is hereby ADJUDGED that:
The petitioner’s request for a protective injunction is GRANTED. This
injunction remains in effect until it has been modified or dissolved, and it is
further ordered that:
The respondent must not commit any acts of exploitation
against, or have any direct or indirect contact with, the vulnerable adult.
The vulnerable adult is awarded exclusive use and
possession of any dwelling the vulnerable adult shares with the respondent.
The respondent is excluded from the residence of the
vulnerable adult.
The respondent must, at the respondent’s own expense,
participate in all relevant treatment, intervention, or counseling services to be
paid for by the respondent.
Unless ownership is unclear, any temporarily frozen assets,
accounts, and credit lines of the vulnerable adult are to be returned to the
vulnerable adult.
If not already paid under the order granting temporary protective
injunction against exploitation of a vulnerable adult, a final cost judgment is
hereby entered against respondent and in favor of the clerk of courts in the
amount of (check 1):
$75.00 (if assets are between $1,500–$5,000)
OR
$200.00 (if assets are more than $5,000).
All for which let execution issue forthwith.
If the amount set forth above has already been paid to the clerk of
courts, a final cost judgment is hereby entered against respondent and in favor
of the vulnerable adult in the amount set forth above, all for which let
execution issue forthwith.
Any other costs associated with this judgment, including filing fees and
service charges, are to be paid by the respondent.
Other:
This injunction is valid and enforceable in all Florida counties, does not
affect title to real property, and law enforcement may use section 901.15(6),
Florida Statutes, arrest powers to enforce its terms.
DONE and ORDERED on .....(date)......
Judge
CC: All parties and counsel of record
COPIES TO: (Check those that apply)
Petitioner:
by U. S. Mail
by hand delivery in open court (Petitioner must acknowledge
receipt in writing on the original order—see below.)
Vulnerable Adult (if not petitioner)
by U. S. Mail
by hand delivery in open court
Respondent:
forwarded to Sheriff for service
by U. S. Mail
by hand delivery in open court (Respondent must acknowledge
receipt in writing on the original order—see below.)
by certified mail (May only be used when respondent is present at
the hearing and respondent fails or refuses to acknowledge the receipt of a
certified copy of this injunction.)
Department of Agriculture and Consumer Services
Other:
Petitioner’s Attorney: by e-mail
Respondent’s Attorney: by e-mail
I CERTIFY the foregoing is a true copy of the original as it appears on file
in the office of the clerk of the circuit court of County, Florida,
and that I have furnished copies of this order as indicated above on
.....(date)......
CLERK OF THE CIRCUIT COURT
By:
Deputy Clerk
RULE 5.930 cases. AFFIDAVIT OF QUALIFIED CUSTODIAN OF ELECTRONIC
WILL
STATE OF FLORIDA
COUNTY OF
I, .....(affiant)....., state under oath that:
1. The affiant is:
a person domiciled in and a resident of Florida; or
a representative authorized to sign on behalf of .....(name of
entity)..... which is incorporated, organized, or has its principal place of
business in Florida.
2. The affiant has been informed that .....(name of “testator”)..... has
died. At the time of the testator’s death, the affiant or entity the affiant
represents was the qualified custodian (the “qualified custodian”) who had
custody of the electronic will .....(date of the “electronic will”)......
3. The qualified custodian deposited the electronic will with the Clerk
of Court of County, Florida on .....(date)......
4. The electronic record that contains the electronic will was held in
the custody of the qualified custodian at all times from .....(date)..... until it was
deposited with the clerk of court.
5. To the best of the affiant’s knowledge, the electronic record that
contains the electronic will was at all times, before being offered to the court, in
the custody of a qualified custodian in compliance with section 732.524,
Florida Statutes, and the electronic will has not been altered in any way since
the date it was created.
6. The qualified custodian has (check all that apply):
posted and maintained a blanket surety bond in compliance with
the requirements of section 732.525(1)(a), Florida Statutes; or
maintained a liability insurance policy in compliance with the
requirements of section 732.525(1)(b), Florida Statutes.
Affiant
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 Type of Identification Produced
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