Florida Probate Rule 5.010
RULE 5.010. 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.
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.