Florida Probate Rule 5.440
RULE 5.440. 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.
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.