Florida Probate Rule 5.040 - NOTICE | Syfert Law

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Florida Probate Rule 5.040

RULE 5.040. 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