In Re: Amendments to Florida Probate Rules
Supreme Court of Florida
In Re: Amendments to Florida Probate Rules
Opinion
Supreme Court of Florida
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No. SC2024-0433
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IN RE: AMENDMENTS TO FLORIDA PROBATE RULES.
November 7, 2024
PER CURIAM.
The Florida Bar’s Probate Rules Committee has filed a report
proposing amendments to Florida Probate Rules 5.320 (Oath of
Personal Representative) and 5.550 (Petition to Determine
Incapacity). 1 The Committee initially proposed amendments to
rules 5.095 (General and Special Magistrates) and 5.697
(Magistrates’ Review of Guardianship Inventories, Accounting, and
Plans) as well, but it subsequently rescinded the proposed
amendments to those rules in response to a comment filed with the
Court following publication in The Florida Bar News.
The Florida Bar’s Board of Governors unanimously approved
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see
also Fla. R. Gen. Prac. & Jud. Admin. 2.140(b).
the proposal to amend rules 5.320 and 5.550.
Having considered the Committee’s proposal, the comment,
and the Committee’s response and amended appendices, we amend
the Florida Probate Rules as proposed by the Committee, with
minor revisions. We amend rule 5.320 to include two oath forms,
one to be used by individuals and another to be used by entities
acting as personal representatives. We also amend rule 5.550 to
require that both the notice of petition to determine incapacity and
the petition be read to the alleged incapacitated person.
Accordingly, the Florida Probate Rules are amended as
reflected in the appendix to this opinion. New language is indicated
by underscoring; deletions are indicated by struck-through type.
The amendments shall become effective January 1, 2025, at 12:01
a.m.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
FRANCIS, and SASSO, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
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Original Proceeding – Florida Probate Rules
Erin Farrington Finlen, Co-Chair, Probate Rules Committee, Fort
Lauderdale, Florida, Zackary T. Zuroweste, Co-Chair, Probate Rules
Committee, Clearwater, Florida, Alexandra V. Rieman, Past Chair,
Probate Rules Committee, Fort Lauderdale, Florida, Joshua E.
Doyle, Executive Director, The Florida Bar, Tallahassee, Florida,
and Heather Savage Telfer, Bar Liaison, The Florida Bar,
Tallahassee, Florida,
for Petitioner
Hon. Mike Murphy, Circuit Judge, Ninth Judicial Circuit of Florida,
Orlando, Florida,
Responding with comments
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APPENDIX
RULE 5.320. OATH OF PERSONAL REPRESENTATIVE
Before the granting of letters of administration, the prospective
personal representative shallmust file an oath to faithfully
administer the estate of the decedent.
(a) Oath of Personal Representative; Entity. For a trust
company, corporation, association, or other entity, the oath must
also contain a statement that the personal representative is
authorized and qualified to serve under section 733.305, Florida
Statutes. The oath must substantially comply with the following
form.
[CAPTION]
OATH OF PERSONAL REPRESENTATIVE
STATE OF
COUNTY OF
I, , (affiant), state under oath that:
1. I am of , a:
Trust company incorporated under the laws of
Florida;
State banking corporation authorized and qualified
to exercise fiduciary powers in Florida under section 733.305,
Florida Statutes;
State savings corporation authorized and qualified
to exercise fiduciary powers in Florida under section 733.305,
Florida Statutes;
National banking association authorized and
qualified to exercise fiduciary powers in Florida under section
733.305, Florida Statutes; or
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Federal savings and loan associations authorized
and qualified to exercise fiduciary powers in Florida under section
733.305, Florida Statutes;
and I am authorized to make this oath on behalf of the entity.
2. The entity’s place of business is and
post office address is .
3. The entity will faithfully administer the estate of the
decedent according to law.
4. The entity will promptly file and serve a notice on all
interested persons at any time the entity would not be qualified for
appointment and will include the reason the entity would not then
be qualified and the date on which the disqualifying event occurred.
5. The entity will file and serve a notice within 20 days on
all interested persons, in the event there is a change in the entity’s
place of business or mailing address.
Affiant
Sworn to (or affirmed) and subscribed before me by means of
physical presence or online notarization, this day
of _ , 20 , by (name of person making
statement).
______________________________
Signature of Notary
Public—State of Florida
(Print, Type, or Stamp Commissioned
Name of Notary Public)
Personally Known or Produced Identification
Type of Identification Produced
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(b) Oath of Personal Representative; Individual. For an
individual, Tthe oath shallmust also contain a statement that the
personal representative has reviewed the statutes relating to the
requirements for appointment as personal representative, that the
personal representative is qualified to serve, and that the personal
representative has a continuing duty to file and serve a notice upon
the occurrence of an event that would disqualify the personal
representative. If the petition is verified by the prospective personal
representative individually, the oath may be incorporated in the
petition or in the designation of resident agent. The oath for an
individual shallmust substantially comply with the following form:
[CAPTION]
OATH OF PERSONAL REPRESENTATIVE
STATE OF
COUNTY OF
I, , (Aaffiant), state under oath that:
1. I am qualified within the provisions of sections 733.302,
733.303, and 733.304, Florida Statutes, to serve as personal
representative of the estate of , deceased. I have
reviewed the statutes and understand the qualifications. Under
penalties of perjury, I certify that the following statements are true:
a. I am 18 years of age or older.
b. I have never been convicted of a felony.
c. I have never been convicted in any state or foreign
jurisdiction of abuse, neglect, or exploitation of an elderly person or
a disabled adult, as those terms are defined in section 825.101,
Florida Statutes.
d. I am mentally and physically able to perform the
duties of personal representative.
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e. I am a resident of the State of Florida, or, if I am not
a resident of the State of Florida, I am:
a legally adopted child or adoptive parent of
the decedent;
related by lineal consanguinity to the
decedent; a spouse or a brother, sister, uncle, aunt, nephew, or
niece of the decedent, or someone related by lineal consanguinity to
any such person; or
the spouse of a person otherwise qualified
under one1 of the provisions above.
2. I will faithfully administer the estate of the decedent
according to law.
3. My place of residence is , and my
post office address is .
4. I will promptly file and serve a notice on all
interested persons at any time I know that I would not be qualified
for appointment and will include the reason I would not then be
qualified and the date on which the disqualifying event occurred.
5. I will file and serve a notice within 20 days on all
interested persons, in the event there is a change in my residence
address, street address, or mailing address.
Affiant
Sworn to (or affirmed) and subscribed before me by means of
_____ physical presence or _______ online notarization, this _____
day of ________, 20__, by _____________________ (name of person
making statement).
______________________________
Signature of Notary
Public—State of Florida
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(Print, Type, or Stamp Commissioned
Name of Notary Public)
Personally Known _______ or Produced Identification __________
Type of Identification Produced ____________________________
Committee Notes
It is contemplated the oath may be signed concurrently with
the petition for administration and will be valid even if it predates
the order appointing the personal representative.
Rule History
1977 Revision - 2021 Revision: [No Change]
2024 Revision: Rule was amended to distinguish between the
oath requirements for corporate and individual personal
representatives. Committee notes revised.
Statutory References
§ 733.302, Fla. Stat. Who may be appointed personal
representative.
§ 733.303, Fla. Stat. Persons not qualified.
§ 733.304, Fla. Stat. Nonresidents.
§ 733.305, Fla. Stat. Trust companies and other corporations
and associations.
§ 733.3101, Fla. Stat. Personal representative not qualified.
§ 825.101, Fla. Stat. Definitions.
Rule References
[No Change]
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RULE 5.550. PETITION TO DETERMINE INCAPACITY
(a) Contents. The petition to determine incapacity must be
verified by the petitioner and must state:
(1)-(2) [No Change]
(3) that the petitioner believes the alleged incapacitated
person to be incapacitated, the facts on which suchthe belief is
based, and the names and addresses of all persons known to the
petitioner who have knowledge of suchthe facts through personal
observation;
(4)-(9) [No Change]
(b) Notice.
(1) Contents. The notice of filing the petition to
determine incapacity must state:
(A) [No Change]
(B) that an attorney has been appointed to
represent suchthe alleged incapacitated person; and
(C) that if the court determines that suchthe
alleged incapacitated person is incapable of exercising any of the
rights enumerated in the petition, a guardian may be appointed.
(2) Service on Alleged Incapacitated Person. The notice
and a copy of the petition to determine incapacity must be
personally served by an elisor appointed by the court, who may be
the court appointedcourt-appointed counsel for the alleged
incapacitated person. The elisor must read the notice and petition
to the alleged incapacitated person, but need not read the petition.
A return of service must be filed by the elisor certifying that the
notice and petition have been served on and the notice read to the
alleged incapacitated person. No responsive pleading is required
and no default may be entered for failure to file a responsive
pleading. The allegations of the petition are deemed denied.
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(3) [No Change]
(c) Verified Statement. An interested person may file a
verified statement that states:
(1) that he or shethe interested person has a good faith
belief that the alleged incapacitated person’s trust, trust
amendment, or durable power of attorney is invalid; and
(2) [No Change]
(d) [No Change]
(e) Reports.
(1) Filing. Each member of the examining committee
must file his or herthe examining committee member’s report with
the clerk of the court within 15 days after appointment.
(2)-(3) [No Change]
(f) [No Change]
Committee Notes
Rule History
1980 Revision - 2024 Revision: [No Change]
2024 Revision: Subdivision (b)(2) amended to conform to
section 744.331(1), Florida Statutes. Committee notes revised.
Statutory References
[No Change]
Rule References
Fla. Prob. R. 5.020 Pleadings; verification; motions.
Fla. Prob. R. 5.040(a)(3) Notice.
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Fla. Prob. R. 5.800(a) Application of revised chapter 744 to
existing guardianships.
Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the
Ffiling of Ssensitive Iinformation.
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Reference
- Status
- Published