In Re: Amendments to Florida Probate Rules 5.040, 5.330, and 5.930

Citation: Not availableDocket: SC22-1137

Court: Supreme Court of Florida; February 22, 2023; Florida; State Supreme Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The Supreme Court of Florida, in case No. SC22-1137, issued a corrected opinion on February 2, 2023, regarding amendments to the Florida Probate Rules. The Florida Bar’s Probate Rules Committee proposed changes to clarify service of notice requirements in Rule 5.040, aligning Rule 5.330 with Rule 5.400, and introducing a new Rule 5.930 for affidavits related to electronic wills. The proposed amendments, which received no comments during the public review process, include significant changes: Rule 5.040's subdivision (a)(6) now states that no evidence of delivery is needed when formal service is conducted via first-class mail. Additionally, subdivision (g) of Rule 5.330 has been modified to require a personal representative to sign a petition for discharge instead of a petition for distribution and discharge. The newly adopted Rule 5.930 provides a standardized form for custodians of electronic wills. The amendments are effective April 1, 2023, at 12:01 a.m., and the filing of a motion for rehearing does not affect this effective date. The rules were approved by the Committee and the Board of Governors of The Florida Bar.

Service of formal notice must be executed as follows: 

1. **Persons to be Served**:
   - **Attorney Representation**: Notice to an interested person represented by an attorney must be delivered to the attorney's regular place of business.
   - **Requested Notice**: For interested persons who have filed a notice request, delivery must be made to the address provided in that request.
   - **Incapacitated Persons**: Service must be delivered directly to incapacitated individuals or those with developmental disabilities.
   - **Minors**: For minors, service must go to designated individuals for accepting service as per chapter 48, Florida Statutes, at their usual residence or business.
   - **Other Individuals**: Service must be made at the individual's usual residence or to an authorized person per chapter 48, Florida Statutes.
   - **Corporations**: Delivery to corporations or business entities must comply with chapter 48, Florida Statutes.

2. **Completion of Service**:
   - Service is complete upon receipt for deliveries under subdivision (a)(3)(A).
   - For subdivisions (a)(3)(B) and (a)(3)(C), completion follows the Florida Rules of Civil Procedure.
   - For subdivision (a)(3)(D), service completion occurs upon mailing.

3. **Proof of Service**:
   - Proof must be a verified statement from the server, including a signed receipt or satisfactory evidence of delivery.
   - For mail service under subdivision (a)(3)(D), the statement must include mailing details, but evidence of delivery is not required.
   - Proof for subdivisions (a)(3)(B) and (a)(3)(C) follows Florida law for service of process.

4. **Informal Notice**: Informal notice should be served as defined in rule 5.041 when required or permitted.

5. **Notice Definition**: 'Notice' refers to informal notice unless formal notice is explicitly specified.

6. **Formal Notice Option**: A person may opt to give formal notice instead of informal notice unless the court dictates otherwise. This does not alter any specified time periods.

7. **Service Procedure**: If service is conducted as per formal notice protocols, it is complete upon receipt, and proof must align with the outlined requirements.

Committee notes clarify that formal notice is the service method used in probate cases, serving as the means to achieve in rem jurisdiction over estate interests, but it does not confer personal jurisdiction over individuals.

Service of formal notice must follow rule 5.040(a)(3), while informal notice is permissible when formal notice is not required. The term 'mail' pertains to the United States Postal Service. The 2023 revision to subdivision (a)(6) states that no evidence of formal notice is required when notice is sent by first-class mail. Subdivision (e) has been updated to reference subdivision (a)(5). 

Rule 5.330 mandates that the personal representative must sign the petition for distribution and discharge, with subdivision (g) being edited for consistency with Fla. Prob. R. 5.400. 

Rule 5.930 outlines the affidavit required from a qualified custodian of an electronic will, which must include the affiant's status as a Florida resident or authorized representative, acknowledgment of the testator’s death, and confirmation of custody of the electronic will. The qualified custodian must report that the electronic will was deposited with the Clerk of Court and confirm it was held in compliance with section 732.524, Florida Statutes, without alterations. Additionally, the custodian must indicate compliance with surety bond or liability insurance requirements as specified in section 732.525(1). The affidavit must be sworn before a notary public, who verifies the identity of the affiant.