2020: A Challenging Year for Keeping Up With Changes to Probate and Guardianship Rules and Statutes.

• Author: Goethe, Jeffrey S.
• Position: Florida

In addition to all of the unprecedented changes affecting just about every aspect of their lives in 2020, probate and guardianship attorneys were faced with many changes in the Florida Probate Rules, the Florida Probate Code, (1) and the Florida Guardianship Law. (2) Because court rules and statutes can have different effective dates, careful attention is required to ensure that documents filed and served with the court comply with the current judicial and legislative requirements.

The sources for probate and guardianship changes becoming effective in 2020 include: Laws of Fla. Ch. 201971, (3) Ch. 2020-35, Ch. 2020-67, Ch. 2020-73, Ch. 2020-110; In re: Amendments to the Fla. Prob. Rules--2019 Regular-Cycle Report, 287 So. 3d 492 (Fla. Dec. 19, 2019); In re: Amendments to the Fla. Prob. Rules--2019 Fast-Track Report, 288 So. 3d 565 (Fla. Jan. 16, 2020); In re: Amendments to the Fla. Probate Rules--Guardianship, 301 So. 2d 859 (Fla. Sept. 3, 2020); In re: Amendments to the Fla. Prob. Rules-Vulnerable Adults, No. SC20-21, 45 Fla. L. Weekly 255 (Sept. 24, 2020); In Re: Amendments to the Florida Probate Rules--2020 Fast-Track Report, No. SC20-1746, 2020 Fla. LEXIS 2145 (Dec. 31, 2020).

Each court opinion and each legislative item contains an effective date. Some of the cases involving proposed rule changes were pending simultaneously. Some legislative changes took effect before or after the rules cases were filed with the Florida Supreme Court. Each opinion and each legislative item must be reviewed to determine the interaction between the work of the Florida Supreme Court and the work of the Florida Legislature. In general, the procedural aspects of probate and guardianship proceedings are governed by the Florida Probate Rules and the substantive aspects of the law are governed by the Florida Probate Code and the Florida Guardianship Law. Often, however, distinguishing between what is procedural and what is substantive is difficult. The following article helps Florida practitioners reconcile the application of the rules and statutes that govern guardianship and probate proceedings, especially for the changes in 2020. (4)

Motion for Rehearing

To reconcile a difference between the Florida Rules of Civil Procedure and the Florida Probate Rules, the time for service of a motion for rehearing in a probate or guardianship proceeding has been modified. Rule 5.020(d) was amended to change the deadline for service of a motion for rehearing from 10 days to 15 days after the date of the filing of the order or judgment, effective January 1, 2020. (5)

Service

Rule 5.040 governs the service of court papers in probate and guardianship proceedings. Rule 5.040(a)(3)(D) was amended to permit service by first class mail for quasi in rem or in rem jurisdiction in limited circumstances. (6) Rule 5.040(a)(5) addresses completion of service under subdivisions (a)(3)(B) and (C). Proof of service requires a "receipt signed by the person to whom delivery was made or other evidence satisfactory to the court that delivery was made." (7) This rule amendment became effective January 1, 2020.

F.S. [section]731.301 was amended to recognize that formal notice in a probate or guardianship proceeding is sufficient notice for the court to exercise in rem jurisdiction over a person's interest in the property of the estate and a person's interest in protected homestead. The amendment further confirmed that formal notice does not result in in personam jurisdiction over the person served. (8) The amendment applies to all proceedings pending "on or before, or commenced after, the date this act becomes a law." (9)

Petition for Administration

Rule 5.200 has been amended to require affirmative statements about a petitioner's priority and qualification to serve as personal representative. The petition must state "whether or not any other person has equal or higher preference, and if so, their name and whether they will be served with formal notice." (10) Subsection (k) was added to provide explicit statements about the personal representative's qualifications:

(k) [A] statement that the personal representative seeking appointment is qualified to serve under the laws of Florida as a business entity under section 733.305, Florida Statutes, or, if an individual, that the person is qualified to serve under the laws of Florida, including:

(1) whether the person has been convicted of a felony;

(2) that the person is mentally and physically able to perform the duties of personal representative;

(3) that the person is 18 years of age or older; and

(4) whether the person is a resident of Florida and, if not a resident, a statement of the person's relationship to the decedent in accordance with section 733.304, Florida Statutes. (11)

Notice of Administration

Rule 5.240 contains the procedural requirements for a notice of administration, which alerts recipients to certain deadlines that may affect their rights under the Florida Probate Code. The contents of the notice of administration are contained in probate Rule 5.240 and F.S. [section]732.212. Rule 5.240(b)(4) was...