Florida Probate Rule 5.120 - ADMINISTRATOR AD LITEM AND GUARDIAN AD | Syfert Law

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Florida Probate Rule 5.120

RULE 5.120. 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.