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IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES Part II

IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES Part II
07/03/07

IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES

IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES 


 


 


Supreme Court of Florida


 


 


____________


 


No. SC06-2148


____________


 


 


IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES.


 


 


 


[February 1, 2007]


 


 


 


STORY CONTINUED FROM PART I………..





Committee Notes



One person who serves in two fiduciary capacities may not waive or consent to the person's acts without the approval of those whom the person represents. This rule represents a rule implementation of the procedure found in section 731.302, Florida Statutes.



Rule History



1977 Revision: Extends right of waiver to natural guardian; clarifies right to waive service of notice of administration.



1984 Revision: Extends waiver to disclosure of compensation and distribution of assets. Committee notes revised.



1988 Revision: Procedure from section 731.302, Florida Statutes, inserted as new (1)(f), and a new requirement that the waiver be in writing has been added. Editorial changes. Committee notes expanded. Citation form changes in committee notes.



1992 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.


1996 Revision: Addition of specific fee waiver disclosure requirements found in § 733.6171(9), Florida Statutes, and expanded to cover all fees. Committee notes revised.



2003 Revision: Committee notes revised.



2006 Revision: Rule extensively amended to remove references to interested persons' right to waive or consent, which is governed by section 731.302, Florida Statutes, and to address manner of execution and contents of waiver. Committee notes revised.



Statutory References



§ 731.302, Fla. Stat. Waiver and consent by interested person.


§ 731.303, Fla. Stat. Representation.


§ 733.6171, Fla. Stat. Compensation of attorney for the personal representative.


§ 733.901, Fla. Stat. Final discharge.


ch. 737, Fla. Stat. Trust administration.


§ 744.301, Fla. Stat. Natural guardians.



Rule References



Fla. Prob. R. 5.120 Administrator ad litem and guardian ad litem.


Fla. Prob. R. 5.400 Distribution and discharge.


Fla. Prob. R. 5.680 Termination of guardianship.


Fla. Prob. R. 5.695 Annual guardianship report.



RULE 5.400. DISTRIBUTION AND DISCHARGE


 


(a) - (e) [No Change]


 


Committee Notes


 


The rule establishes a procedure for giving notice and serving the final accounting, petition for discharge, and plan of distribution to all interested persons prior to distribution and discharge. No distinction is made in plans of distribution which distribute estate property in kind among multiple residual beneficiaries proportionate to their respective interests and those which include equalizing adjustments in cash or property and which do not make prorated distribution. If disclosure of the compensation or disclosure of the manner of determining the compensation in the petition for discharge is to be waived, the form of waiver must conform to rule 5.180(b).


 


Rule History


 


1980 Revision: Change in prior (a)(6) to require that an objection set forth the basis on which it is being made.



1984 Revision: This rule has been substantially revised. Portions of the prior rule are now incorporated in rules 5.400 and 5.401. The committee has included the procedure for filing and serving of objections to the final accounting, petition for discharge, plan of distribution, or compensation in rule 5.401.



1988 Revision: Subdivision (b)(1) is deleted to avoid dupli cation with rule 5.346. Subdivision (c) is amended to add the 12-month time specification of section 733.901(1), Florida Statutes. Committee notes revised. Citation form changes in committee notes.



1992 Revision: Subdivision (b)(5)(D) is added. Editorial changes. Committee notes revised. Citation form changes in committee notes.



1996 Revision: Addition in (a)(4) of specific attorney fee compensation disclosure requirements found in § 733.6171(9), Florida Statutes, and expanded to cover all compensation. Committee notes revised.



2003 Revision: Committee notes revised.



2005 Revision: Subdivision (f) deleted to avoid duplication with rule 5.180.



2006 Revision: Committee notes revised.


 


Statutory References


 


§ 731.201(10), (21), Fla. Stat. General definitions.


§ 731.302, Fla. Stat. Waiver and consent by interested person.


§ 733.809, Fla. Stat. Right of retainer.


§ 733.810, Fla. Stat. Distribution in kind; valuation.


§ 733.811, Fla. Stat. Distribution; right or title of distributee.


§ 733.812, Fla. Stat. Improper distribution or payment; liability of distributee or payee.


§ 733.901, Fla. Stat. Final discharge.


 


Rule References


 


Fla. Prob. R. 5.020 Pleadings; verification; motions.


Fla. Prob. R. 5.040 Notice.


Fla. Prob. R. 5.041 Service of pleadings and papers.


Fla. Prob. R. 5.042 Time.


Fla. Prob. R. 5.180 Waiver and consent.


Fla. Prob. R. 5.330 Execution by personal representative.


Fla. Prob. R. 5.346 Fiduciary accounting.


Fla. Prob. R. 5.401 Objections to petition for discharge or final accounting.


Fla. R. Jud. Admin. 2.085(d)(1)(D)250(a)(1)(D) Time standards for trial and appellate courts and reporting requirements.




 


RULE 5.550. PETITION TO DETERMINE INCAPACITY


 


(a) - (b) [No Change]



(c) Verified Statement. An interested person may file a verified statement that shall state:


 


(1) that he or she has a good faith belief that the alleged incapacitated person's trust, trust amendment, or durable power of attorney is invalid; and


 


(2) facts constituting a reasonable basis for that belief.


 


(d) Order. When an order determines that a person is incapable of exercising delegable rights, it shall specify whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.



Committee Notes



Rule History



1980 Revision: Implements 1979 amendments to section 744.331, Florida Statutes.



1984 Revision: Change in title of rule. Editorial changes and adds a provision for service of petition. Committee notes revised.



1988 Revision: Committee notes revised. Citation form changes in committee notes.



1989 Revision by Ad Hoc Committee: The committee realized that formal notice as defined in rule 5.040(a)(1) requires the recipient of notice to file a responsive pleading within 20 days after the service of the notice. The committee believed that to impose such a requirement on the alleged incapacitated person would contravene the legislative intent of the 1989 revisions to chapter 744, Florida Statutes. The committee observed that the time required for appointment of mandatory appointed counsel might render a responsive pleading within 20 days impossible for the alleged incapacitated person. The committee concluded that, procedurally, notice upon the alleged incapacitated person should occur in the same manner as formal notice in rule 5.040, but the required response under that rule should not be imposed upon the alleged incapacitated person.


1991 Revision: Implements 1989 amendments to sections 744.3201 and 744.331, Florida Statutes, and 1990 technical amendments.



1992 Revision: Citation form changes in committee notes.



2006 Revision: Subdivisions (c) and (d) added to incorporate 2006 amendment to section 744.441 and creation of section 744.462, Florida Statutes. Committee notes revised.



Statutory References



§ 744.3201, Fla. Stat. Petition to determine incapacity.


§ 744.331, Fla. Stat. Procedures to determine incapacity.


§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.


§ 744.441(11), Fla. Stat. Powers of guardian upon court approval.


§ 744.462, Fla. Stat. Determination regarding alternatives to guardianship.



Rule References



Fla. Prob. R. 5.020 Pleadings; verification; motions.


Fla. Prob. R. 5.040(a)(3) Notice.


Fla. Prob. R. 5.800(a) Application of revised chapter 744 to existing guardianships.



RULE 5.552. VOLUNTARY GUARDIANSHIP OF PROPERTY



(a) - (c) [No Change]



(d) Annual Report. The annual report shall be accompanied by a certificate from a licensed physician as required by law.



(de) Termination. The ward may terminate a voluntary guardianship by filing a notice of termination. Copies of the notice shall be served on all interested persons. The guardian shall file a petition for discharge in accordance with these rules.



Committee Notes



Rule History



2003 Revision: New rule.



2006 Revision: New (d) added to incorporate 2006 amendment to section 744.341, Florida Statutes, requiring inclusion of physician's certificate in annual report, and subsequent subdivision relettered. Committee notes revised.



Statutory Reference



§ 744.341, Fla. Stat. Voluntary guardianship.



Rule Reference



Fla. Prob. R. 5.680 Termination of guardianship.


Fla. Prob. R. 5.695 Annual guardianship report.


 


RULE 5.555. GUARDIANSHIPS OF MINORS


 


(a) - (d) [No Change]



(e) Initial and Annual Guardianship Reports.



(1) The initial guardianship report shall consist only of the verified inventory. The annual guardianship report shall consist only of the annual accounting.



(2) Unless otherwise ordered by the court, theThe guardian need notshall file an initial orand annual guardianship plan as required by law.



(3) Unless otherwise ordered by the court or required by law, the guardian need not serve a copy of the initial guardianship report and the annual guardianship reports on the ward if the ward is under the age of 14 years.



(f) [No Change]



Committee Notes



The provisions of chapter 744, Florida Statutes, and the guardianship rules enacted in 1989 leave some uncertainty with respect to the procedural requirements in guardianships for minors who are not incapacitated persons. This rule is intended to address only certain procedures with respect to the establishment and administration of guardianships over minors. The committee believes that certain provisions of the guardianship law and rules apply to both guardianships of minors as well as guardianships of incapacitated persons and no change has been suggested with respect to such rules. Because no adjudication of a minor is required by statute, it is contemplated that appointment of a guardian for a minor may be accomplished without a hearing. Initial and annual guardianship reports for minors have been simplified where all assets are on deposit with a designated financial institution under applicable Florida law.



Rule History



1991 Revision: New rule adopted to apply to guardianships over minors who are not incapacitated persons.



1992 Revision: Committee notes revised. Citation form changes in committee notes.



1996 Revision: Committee notes revised.



2000 Revision: Deletes requirement in subdivision (c) to report social security number of proposed guardian.



2003 Revision: Deletes requirement in subdivision (c) to report social security number of minor. Committee notes revised.



2006 Revision: Subdivision (e)(2) amended to conform to requirement in sections 744.362(1) and 744.3675, Florida Statutes, to file initial and annual guardianship plans. Subdivision (e)(3) amended to eliminate requirement of service on ward unless ordered by court or required by statute.



Statutory References



§ 69.031, Fla. Stat. Designated financial institutions for assets in hands of guardians, curators, administrators, trustees, receivers, or other officers.


§ 744.3021, Fla. Stat. Guardians of minors.


§ 744.334, Fla. Stat. Petition for appointment of guardian or professional guardian; contents.


§ 744.3371(2), Fla. Stat. Notice of petition for appointment of guardian and hearing.


§ 744.342, Fla. Stat. Minors; guardianship.


§ 744.362, Fla. Stat. Initial guardianship report.


§ 744.363, Fla. Stat. Initial guardianship plan.


§ 744.365, Fla. Stat. Verified inventory.


§ 744.367, Fla. Stat. Duty to file annual guardianship report.


§ 744.3675, Fla. Stat. Annual guardianship plan.


§ 744.3678, Fla. Stat. Annual accounting.


§ 744.3679, Fla. Stat. Simplified accounting procedures in certain cases.



Rule References



Fla. Prob. R. 5.040 Notice.


Fla. Prob. R. 5.541 Recording of hearings.


Fla. Prob. R. 5.560 Petition for appointment of guardian of an incapacitated person.


Fla. Prob. R. 5.620 Inventory.


Fla. Prob. R. 5.636 Settlement of minors' claims.


Fla. Prob. R. 5.690 Initial guardianship report.



RULE 5.560. PETITION FOR APPOINTMENT OF GUARDIAN OF AN INCAPACITATED PERSON


 


(a) Contents. The petition shall be verified by the petitioner and shall state:



(1) the facts to establish venue;



(2) the petitioner's residence and post office address;



(3) the name, age, and residence and post office address of the alleged incapacitated person;



(4) the nature of the incapacity, the extent of guardianship, either limited or plenary, requested for the alleged incapacitated person, and the nature and value of property subject to the guardianship;



(5) the names and addresses of the next of kin of the alleged incapacitated person known to the petitioner;



(6) the name and residence and post office address of the proposed guardian, and that the proposed guardian is qualified to serve, or that a willing and qualified guardian has not been located;



(7) the proposed guardian's relationship to and any previous association with the alleged incapacitated person; and



(8) the reasons why the proposed guardian should be appointed;



(9) whether there are alternatives to guardianship known to the petitioner that may sufficiently address the problems of the alleged incapacitated person in whole or in part; and



(10) if the proposed guardian is a professional guardian, a statement that the proposed guardian has complied with the registration requirements of section 744.1083, Florida Statutes.



(b) - (c) [No Change]



Committee Notes


Rule History



1975 Revision: Substantially the same as section 744.334, Florida Statutes, expanded to include provisions of section 744.302, Florida Statutes, and section 744.312, Florida Statutes, by reference.



1977 Revision: Change in committee notes to conform to statu tory renumbering.



1980 Revision: Implements 1979 amendment to section 744.334, Florida Statutes.



1984 Revision: Combines rule 5.560 and part of prior rule 5.570. Editorial changes and committee notes revised.



1988 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.



1989 Revision by Ad Hoc Committee: Subdivision (a)(4) of the former rule has been deleted altogether because the date and court of adjudication will probably not be known at the time of filing the petition for the appointment since petition for appointment will henceforth be filed contemporaneously with the petition to determine incapacity.



1991 Revision: Implements 1989 amendments to sections 744.334 and 744.331(1), Florida Statutes, and 1990 technical amendments. Subdivision (c)(1) deleted because rule 5.555(d) addresses service on parents.



1992 Revision: Citation form changes in committee notes.



1996 Revision: Deletes requirement in subdivision (a) to report social security number of alleged incapacitated person. Adds provision to subdivision (b) for notice before hearing when petition is not served simultaneously with petition to determine incapacity.



2000 Revision: Deletes requirement in subdivision (a) to report social security number of proposed guardian.



2003 Revision: Committee notes revised.



2006 Revision: New (a)(9) added to incorporate 2006 passage of section 744.462, Florida Statutes. Subdivision (a)(10) added to implement section 744.1083, Florida Statutes. Committee notes revised.



Statutory References



§ 744.1083, Fla. Stat. Professional guardian registration.


§ 744.309, Fla. Stat. Who may be appointed guardian of a resident ward.


§ 744.312, Fla. Stat. Considerations in appointment of guardian.


§ 744.331, Fla. Stat. Procedures to determine incapacity.


§ 744.334, Fla. Stat. Petition for appointment of guardian or professional guardian; contents.


§ 744.3371(1), Fla. Stat. Notice of petition for appointment of guardian and hearing.


§ 744.341, Fla. Stat. Voluntary guardianship.


§ 744.344, Fla. Stat. Order of appointment.


§ 744.462, Fla. Stat. Determination regarding alternatives to guardianship.


§ 744.703, Fla. Stat. Office of public guardian; appointment, notification.



Rule References



Fla. Prob. R. 5.020 Pleadings; verification; motions.


Fla. Prob. R. 5.040 Notice.


Fla. Prob. R. 5.550 Petition to determine incapacity.



RULE 5.590. APPLICATION FOR APPOINTMENT AS GUARDIAN; DISCLOSURE STATEMENT; FILING



(a) - (d) [No Change]



Committee Notes



Rule History



1988 Revision: Prior rule deleted; text of rule moved to rule 5.650.



1989 Revision: Rule reactivated with different title and text.



1991 Revision: Implements 1989 and 1990 amendments to section 744.3125, Florida Statutes.



1992 Revision: Citation form change in committee notes.



1996 Revision: Adds filing and service provisions consistent with rule 5.560. Corrects reference to corporations qualified to exercise fiduciary powers. Editorial changes. Adds statutory references.



2003 Revision: Committee notes revised.



2006 Revision: Committee notes revised.



Statutory References



§ 744.102(34), (1314), Fla. Stat. Definitions.


§ 744.309, Fla. Stat. Who may be appointed guardian of a resident ward.


§ 744.3125, Fla. Stat. Application for appointment.


§ 744.331(1), Fla. Stat. Procedures to determine incapacity.


§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.



RULE 5.625. NOTICE OF COMPLETION OF GUARDIAN EDUCATION REQUIREMENTS



(a) Filing. Unless the guardian education requirement is waived by the court, each guardian, other than a professional guardian, shall file with the court within 1 year4 months after the issuance of letters of guardianship a notice of completion of guardian education requirements.



(b) - (c) [No Change]



Committee Notes



Rule History



2005 Revision: New rule.



2006 Revision: Subdivision (a) amended to conform to 2006 amendment to section 744.3145(4), Florida Statutes.



Statutory Reference



§ 744.3145, Fla. Stat. Guardian education requirements.


 


RULE 5.630. PETITION FOR APPROVAL OF ACTS



(a) Contents. When authorization or confirmation of any act of the guardian is required, application shall be made by verified petition stating the facts showing:



(1) the expediency or necessity for the action;



(2) a description of any property involved;



(3) the price and terms of any sale, mortgage, or other contract;



(4) whether the ward has been adjudicated incapacitated to act with respect to the rights to be exercised; and



(5) whether the action requested conforms to the guardianship plan; and



(6) the basis for the relief sought.



(b) [No Change]



(c) Order.



(1) If the act is authorized or confirmed, the order shall describe the permitted act and authorize the guardian to perform it or confirm its perfor mance.



(2) If a sale or mortgage is authorized or confirmed, the order shall describe the property. If a sale is to be private, the order shall specify the price and the terms of the sale. If a sale is to be public, the order shall state that the sale shall be made to the highest bidder and that the court reserves the right to reject all bids.



(3) If the guardian is authorized to bring an action to contest the validity of all or part of a revocable trust, the order shall contain a finding that the action appears to be in the ward's best interests during the ward's probable lifetime. If the guardian is not authorized to bring such an action, the order shall contain a finding concerning the continued need for a guardian and the extent of the need for delegation of the ward's rights.



Committee Notes



Rule History



1975 Revision: Substantially the same as sections 744.503, 744.447, and 744.451, Florida Statutes, with editorial changes.



1977 Revision: Change in statutory reference in rule and in committee note to conform to statutory renumbering.



1980 Revision: Implements 1979 amendment to section 744.447(2), Florida Statutes.



1988 Revision: Editorial changes; captions added to subdivisions. Committee notes revised. Citation form changes in rule and committee notes.



1989 Revision: Prior rule deleted and replaced by temporary emergency rule.



1991 Revision: Changes to conform to 1989 revised guardianship law.



1992 Revision: Committee notes revised. Citation form changes in committee notes.



2006 Revision: New (a)(6) added to incorporate 2006 amendment to section 744.441, Florida Statutes. New (c)(3) added to reflect passage of 2006 amendment to section 737.2065, Florida Statutes. Committee notes revised.



Statutory References



§ 737.2065, Fla. Stat. Trust contests.


§ 744.3215, Fla. Stat. Rights of persons determined incapacitated.


§ 744.441, Fla. Stat. Powers of guardian upon court approval.


§ 744.447, Fla. Stat. Petition for authorization to act.


§ 744.451, Fla. Stat. Order.



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 papers.


Fla. Prob. R. 5.060 Request for notices and copies of pleadings.


Fla. Prob. R. 5.610 Execution by guardian.


Fla. Prob. R. 5.636 Settlement of minors' claims.


 


RULE 5.636. SETTLEMENT OF MINORS' CLAIMS


 


(a) - (c) [No Change]



(d) Guardian Ad Litem. The court shall appoint a guardian ad litem on behalf of a minor, without bond or notice, with respect to any proposed settlement that exceeds $25,00050,000 and affects the interests of the minor, if:



(1) there is no court-appointed guardian of the minor;



(2) the court-appointed guardian may have an interest adverse to the minor; or



(3) the court determines that representation of the minor's interest is otherwise inadequate.



(e) Valuation of Proposed Settlement. A proposed settlement is deemed to exceed $25,00050,000 if the gross amount payable exceeds $25,00050,000, without reduction to reflect present value or fees and costs.





  1. [No Change]

 





TO BE CONTINUED AS PART III………..




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Analysis and review provided by Poway Property line Lawyers.







 


 








Description This matter is before the Court for consideration of proposed amendments to the Florida Probate Rules.On October 30, 2006, the Florida Probate Rules Committee (Committee) filed a fast track report recommending various amendments to the Florida Probate Rules in response to 2006 legislation. The Committee has proposed amendments to a number of rules, mostly in response to statutory changes made by chapters 2006 77 and 2006 178, Laws of Florida. Chapter 2006 77 became effective June 6, 2006, and chapter 206 178 became effective July 1, 2006. In addition, the Committee has recommended amendments to several rules in order to reflect the recent renumbering of the Florida Rules of Judicial Administration. See In re Amend. to Fla. Rules of Jud. Admin., 939 So. 2d 966 (Fla. 2006). All proposed amendments were approved by unanimous vote of the Committee and the Executive Committee of The Florida Bar Board of Governors. The Committee published the proposals in the November 1, 2006, edition of The Florida Bar News, with a request that comments be filed directly with the Court. No comments have been filed. Accordingly, upon consideration of the Committee's report and the relevant legislation, we hereby amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately.
It is so ordered.
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