Florida Probate Rules Out for Comment

The Florida Supreme Court has put new Florida Probate Rules out for comment. These revisions, which should not be controversial, are being proposed to coordinate the Florida probate rules with recent amendments to the Florida probate statutes. Here’s a summary of the proposed changes:

1. RULE 5.201. NOTICE OF PETITION FOR ADMINISTRATION. Under this amendment, Florida personal representatives must now include a copy of the will offered for probate with any notice that the estate is being opened. In other words, if the personal representative is required to or otherwise does serve anyone with notice that the estate is being opened for probate, the personal representative must provide that person with a copy of the will.
   1. Note: This requirement used to be included in the Florida Statutes, but was removed because it was thought to be a procedural requirement. The addition to the Florida probate rules is just to put this information in the right place.
2. RULE 5.260. CAVEAT; PROCEEDINGS. This rule has been amended to mesh with recent legislative changes to Florida probate law. It allows anyone other than a creditor to file a caveat with the court at any time, either before or after the decedent’s death. But a creditor can only file a caveat after the decedent’s death. It also requires a nonresident caveator to designate a Florida resident to serve as agent, but only if the nonresident caveator is not represented by a Florida probate attorney.
3. RULE 5.3425. SEARCH OF SAFE DEPOSIT BOX. This rule deals with the procedure for gaining access to a decedent’s safe deposit box. This is commonly done to find out whether the decedent left a will or whether there are any assets that would require Florida probate. The rule provides that, once Court determines that a person is entitled to search a safe deposit box, the Court must issue an Order that includes the following:
   1. An authorization to search the safe deposit box in the presence of an officer of the institution.
   2. At the petitioner’s request, the officer of the institution is authorized to remove and deliver the contents of the safe deposit box as follows:
      1. Any purported will, codicil, or memorandum transferring tangible personal property must be given to the appropriate Florida probate court;
      2. Any purported deed to a burial plot must be given to the petitioner; and
      3. Any life insurance policy must be given to the named beneficiary.
   3. The officer must make a complete copy of any document removed from the safe deposit box and include a memorandum of delivery that includes certain information about the transfer.
4. RULE 5.360. ELECTIVE SHARE. This rule is amended to confirm with Florida Statutes 732.2125(2), which deals with the exercise of the spouse’s right of election by an attorney-in-fact or guardian of the surviving spouse. The law new requires a finding by the court that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime. The amended rule simply requires that this determinate be included in the order granting the spousal election.

The rules are out for comment until February 7, 2011. The text of the proposed rules, as well as the procedures for submitting comments, can be found here.