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

Supreme Court of Florida
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No. SC22-1137
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IN RE: AMENDMENTS TO FLORIDA PROBATE RULES
5.040, 5.330, AND 5.930.

February 2, 2023
CORRECTED OPINION

PER CURIAM.

The Florida Bar’s Probate Rules Committee (Committee) has

filed a report proposing amendments to Florida Probate Rule 5.040

(Notice) to clarify the requirements for proof of service, and to

Florida Probate Rule 5.330 (Execution by Personal Representative)

to conform the rule to Florida Probate Rule 5.400 (Distribution and

Discharge). 1 The Committee also proposes new Florida Probate

Rule 5.930 (Affidavit of Qualified Custodian of Electronic Will),

which contains a new form affidavit.

1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R.
Gen. Prac. & Jud. Admin. 2.140(b)(1).
The Committee and the Board of Governors of The Florida Bar

approved the proposed amendments. The Committee published its

proposals for comment in The Florida Bar News prior to filing them

with the Court and received no comments. After the Committee

filed its report, the Court published the proposals for comment. No

comments were received. Having considered the Committee’s

proposals, the Court hereby amends the Florida Probate Rules as

proposed by the Committee. The more significant amendments are

discussed below.

First, subdivision (a)(6) of rule 5.040 is revised to clarify that

“evidence of delivery is not required” in probate proceedings when

formal service is made by first-class mail. Subdivision (e) is

amended to reflect that service is completed as provided in

subdivision (a)(5).

Next, subdivision (g) of rule 5.330 is revised to conform the

rule to rule 5.400 by requiring that a personal representative sign a

petition for discharge rather than a petition for distribution and

discharge.

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Additionally, new rule 5.930 (Affidavit of Qualified Custodian

of Electronic Will), which contains a form affidavit for use by

custodians of electronic wills, is adopted.

Accordingly, the Florida Probate Rules are amended as set

forth in the appendix to this opinion. New language is indicated by

underscoring; deletions are indicated by struck-through type. The

amendments shall become effective April 1, 2023, at 12:01 a.m.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, COURIEL,
GROSSHANS, and FRANCIS, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Probate Rules

James Grier Pressly III, Co-Chair, Florida Probate Rules Committee,
Palm Beach, Florida, Stacy B. Rubel, Co-Chair, Florida Probate
Rules Committee, Coral Gables, Florida, Joshua E. Doyle, Executive
Director, The Florida Bar, Tallahassee, Florida, and Heather Savage
Telfer, Bar Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner

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Appendix

RULE 5.040. NOTICE

(a) Formal Notice.

(1) Procedure for Formal Notice. When formal notice is
given, a copy of the pleading or motion shallmust be served on
interested persons, together with a notice requiring the person
served to serve written defenses on the person giving notice within
20 days after service of the notice, exclusive of the day of service,
and to file the original of the written defenses with the clerk of the
court either before service or immediately thereafter, and notifying
the person served that failure to serve written defenses as required
may result in a judgment or order for the relief demanded in the
pleading or motion, without further notice.

(2) Effect of Service of Formal Notice. After service of
formal notice, informal notice of any hearing on the pleading or
motion shallmust be served on interested persons, provided that if
no written defense is served within 20 days after service of formal
notice on an interested person, the pleading or motion may be
considered ex parte as to that person, unless the court orders
otherwise.

(3) Manner of Service of Formal Notice. Formal notice
shallmust be served in the following manner:

(A)-(D) [No Change]

(4) Persons to be Served. Service of formal notice under
(a)(3)(A) and (a)(3)(D) shallmust be made on the following:

(A) service on an interested person represented by
an attorney shallmust be made by delivery to the attorney at his or
her regular place of business;

(B) service on an interested person who has filed a
request for notice shallmust be made by delivery to such interested
person at the address given in the request for notice;

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(C) service on an incapacitated person or a person
with a developmental disability shallmust be made by delivery:

(i)-(ii) [No Change]

(D) service on a minor whose disabilities of nonage
are not removed shallmust be made by delivery to the persons
designated to accept service of process on a minor under chapter
48, Florida Statutes, at their usual place of abode or regular place
of business;

(E) service on any other individual shallmust be
made by delivery to such individual at his or her usual place of
abode or to any person authorized to receive service of a summons
on behalf of the individual as provided in chapter 48, Florida
Statutes; or

(F) service on a corporation or other business
entity shallmust be made by delivery to such corporation or other
business entity as provided in chapter 48, Florida Statutes.

(5) Completion of Service. Service of formal notice
pursuant to subdivision (a)(3)(A) shallwill be complete upon receipt
by the person to whom delivery is made. Service of formal notice
pursuant to subdivision (a)(3)(B) shallwill be complete as provided
in the Florida Rules of Civil Procedure for service of process. Service
of formal notice pursuant to subdivision (a)(3)(C) shallwill be
complete as provided by Florida law for service of process. Service of
formal notice pursuant to subdivision (a)(3)(D) shallwill be complete
upon mailing.

(6) Proof of Service. Proof of service shallmust be by
verified statement of the person serving formal notice and there
shallmust be attached to the verified statement the receipt signed
by the person to whom delivery was made or other evidence
satisfactory to the court that delivery was made. Alternatively, iIf
service is obtained pursuant to subdivision (a)(3)(D), the verified
statement must state the basis for service by first-class mail, the
date of mailing, and the address to which the first-class mail was
sent, and evidence of delivery is not required. Proof of service
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pursuant to subdivisions (a)(3)(B) or (a)(3)(C) shallmust be made as
provided by Florida law for service of process.

(b) Informal Notice. When informal notice of a petition or
other proceeding is required or permitted, it shallmust be served as
provided in rule 5.041.

(c) “Notice” Defined. In these rules, the Florida Probate
Code, and the Florida Guardianship Law “notice” shall means
informal notice unless formal notice is specified.

(d) Formal Notice Optional. Formal notice may be given in
lieu of informal notice at the option of the person giving notice
unless the court orders otherwise. When formal notice is given in
lieu of informal notice, formal notice shallmust be given to all
interested persons entitled to notice. When formal notice is given in
lieu of informal notice, that notice does not modify any time period
otherwise specified by statute or these rules.

(e) In the Manner Provided for Service of Formal Notice.
If a document is served in the manner provided for service of formal
notice, service is completed on receipt of the document, andas
provided in subdivision (a)(5). pProof of service shallmust be in the
manner set forth in subdivision (a)(6).

Committee Notes

Formal notice is the method of service used in probate
proceedings and the method of service of process for obtaining in
rem jurisdiction over the person’s interest in the estate property.
The court does not acquire personal jurisdiction over a person by
service of formal notice. “The manner provided for service of formal
notice” is as provided in rule 5.040 (a) (3).

Informal notice is the method of service of notice given to
interested persons entitled to notice when formal notice is not given
or required.

Reference in this rule to the terms “mail” or “mailing” refers to
use of the United States Postal Service.

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Rule History

1975 Revision-2020 Revision: [No Change]

2023 Revision: Subdivision (a)(6) is amended to note evidence
of formal notice is not required when sent by first-class mail.
Subdivision (e) is amended to refer to subdivision (a)(5). Committee
notes revised.

Statutory References

[No Change]

Rule References

[No Change]

RULE 5.330. EXECUTION BY PERSONAL REPRESENTATIVE

Notwithstanding any other provisions of these rules, the
personal representative shallmust sign the:

(a)-(f) [No Change]

(g) petition for distribution and discharge; and

(h) [No Change]

Committee Notes

Rule History

1975 Revision-2010 Revision: [No Change]

2023 Revision: Subdivision (g) was edited to conform with Fla.
Prob. R. 5.400. Committee notes revised.

Statutory References

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[No Change]

Rule References

[No Change]

RULE 5.930. AFFIDAVIT OF QUALIFIED CUSTODIAN OF
ELECTRONIC WILL

STATE OF FLORIDA
COUNTY OF

I, .....(affiant)....., state under oath that:

1. The affiant is:

a person domiciled in and a resident of Florida; or

a representative authorized to sign on behalf of .....(name of
entity)..... which is incorporated, organized, or has its principal place of
business in Florida.

2. The affiant has been informed that .....(name of “testator”)..... has
died. At the time of the testator’s death, the affiant or entity the affiant
represents was the qualified custodian (the “qualified custodian”) who had
custody of the electronic will .....(date of the “electronic will”)......

3. The qualified custodian deposited the electronic will with the Clerk
of Court of County, Florida on .....(date)......

4. The electronic record that contains the electronic will was held in
the custody of the qualified custodian at all times from .....(date)..... until it was
deposited with the clerk of court.

5. To the best of the affiant’s knowledge, the electronic record that
contains the electronic will was at all times, before being offered to the court, in
the custody of a qualified custodian in compliance with section 732.524,
Florida Statutes, and the electronic will has not been altered in any way since
the date it was created.

6. The qualified custodian has (check all that apply):

posted and maintained a blanket surety bond in compliance with
the requirements of section 732.525(1)(a), Florida Statutes; or

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maintained a liability insurance policy in compliance with the
requirements of section 732.525(1)(b), Florida Statutes.

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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