SC13-30 Appendix E - Supreme Court · words of similar effect, such words shall mean the methods of service which are set forth in Section (a)(3) of this Rule 5.040. In addition,

MEMO

TO: Probate Rules Committee

FROM: Jeff Goethe

RE: Rule 5.060- Request for Notice and Copies

DATE: August 27, 2010

Rule 5.060 was amended by the committee in June to add a reference to RJA Rule 2.516

and to reflect the change in the title to Rule 5.041.

Rule 5.060 includes references to "papers" which should be changed to "documents,"

reflecting the shift to electronic filing and service. The rule also uses the "mail" which should be

replaced with "serve."

Subdivision (a) also provides that the clerk of court will be responsible for serving copies

of the request to the attorney for the personal representative or guardian. I have experienced

situations where the clerk refuses to serve certain items, even when copies and stamped

envelopes are provided. They have cited the "saving taxpayers" and "our budget will no longer

allow us to provide this service" arguments. Although the Clerk continues to serve a copy of the

Statement of Claim filed by creditors and the Notice of Trust, it would probably be prudent and

practical for the attorney making the request for copies to serve copies of the request. There

appear to be no statutory requirements that the clerk serve copies of the request.

Appendix E-1

Appendix E-1

RULE 5.060. REQUEST FOR NOTICES AND COPIES OF PLEADINGS

(a) Request. Any interested person who desires notice of proceedings in the estate of a decedent or ward may file a separate written request for notice of further proceedings, designating therein such person's residence and post office address. When such person's residence or post office address changes, a new designation of such change shall be filed in the proceedings. A person filing such request, or address change, shallmust alse aelh•er a eeJ9)' thereef te the elerlc, whe shall furthwith mail it te serve a copy on the attorney for the personal representative or guardian, HetiHg eH the erigiHal the fast ef mailiHgand include a certificate of service.

(b) Notice and Copies. A party filing a request shall be served thereafter by the moving party with notice of further proceedings and with copies of subsequent pleadings and papersdocuments as long as the party is an interested person.

Committee Notes

Rule History

1975 Revision: This rule substantially incorporates the provisions of prior rule 5.060 except that now a copy of the request shall be mailed by the clerk only to the attorney for the personal representative or guardian. Even though a request under this rule has not been made, informal notice as provided in rule 5.040(b)(3) may still be required.

1977 Revision: Editorial and citation form change in committee note.

1980 Revision: Caveat, the personal representative may want to give notice to parties even though not required, for example, where an independent action has been filed on an objected claim.

1988 Revision: Captions added to subdivisions. Committee notes expanded. Citation form changes in committee notes.

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

2003 Revision: Committee notes revised.

[?010 Revision: Committee notes revised.] ________________ --------------------------------------- ___________ _ Comment [JSGl]: Change proposed as part of the fast-track project one-service. Approved by the

2013 Revision: Subdivisions (a) and (b) revised to reflect service of documents, rather than Probate Rules Committee on June 21, 2010.

papers. Subdivision (a) revised to shift responsibility for service of the request from the clerk to the interest person making the request for notice and copies.

Statutory References

731.201 Fla. Stat. General definitions. 733.604 Fla. Stat. Inventory.

Appendix E-2

Appendix E-2

Rule References

Fla. Prob. R. 5.040 Notice. Fla. Prob. R. 5.041 Service of pleadings and ~documentS. _______________ -------------------------------{Comment [JSG2]: See previous comment.

Fla. Prob. R. 5.340 Inventory. Fla. Prob. R. 5.341 Estate information. [Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.[ ____________________________________________ ---{ Comment [JSG3]: See previous comment.

Appendix E-3

Appendix E-3

·rae Kelley Bronner" To <fpilotte@murphyreid .com> <tae@estatelaw .com>

cc "'Craig Shaw'" <[email protected]> 01/06/2010 09:31 PM

bee

Subject Rule 5.11 0

Frank:

I am writing to you as chair of the Probate Rules Committee to raise an issue I ran across in the Probate Rules. Rule 5.110- Address Designation for Personal Representative or Guardian; Designation of Resident Agent and Acceptance requires in subsection (a) that before letters are issued, the personal representative or guardian shall file a designation of its residence street address and mailing address. The rule does not make any exception for a corporate PR (or guardian)- who would not have a residence address. In that case it would be impossible to comply with t he rule. It seems that it would be appropriate to provide an exception from the requirement to report a residence address for corporate fiduciaries.

Tae Kelley Bronner, P.L. 10006 Cross Creek Blvd. PMB #428 Tampa, Fl33647 Direct Phone: 813-907-6643 Fax: 813-907-6644

Appendix E-4

Appendix E-4

MEMO

TO: Probate Rules Committee

FROM: Jeff Goethe

RE: Rule 5.240 - Notice of Administration

DATE: August 26,2010

The Probate Law and Procedure Committee addressed concerns about service of various

notices upon the personal representative. As the rules are currently written, a personal

representative could argue that he or she did not receive the notice of administration, and

therefore had a full two years to elect an elective share.

The attached draft was prepared by a subcommittee within the Probate Law and

Procedure Committee and approved during the Probate Law and Procedure Committee meetings

in July 2008. The item has been on the agenda at past meetings of the Probate Rules Committee,

but has not been addressed.

Appendix E-5

Appendix E-5

The following proposed changes to the Probate Rules were approved at the meeting of the Probate Law and Procedure Committee at the meeting in Palm Beach, in July, 2008:.

1. Proposed wording of new Rule, to deal with service of notices upon persons who are personal representatives:

(a) Date Notice of Administration is Considered Served on Person who is Personal Representative. Unless service of the Notice of Administration is waived pursuant to Rule 5.240(e), when a person who is entitled to service of the Notice of Administration pursuant to Rule 5.240(a) is also a Personal Representative, the Notice of Administration shall be deemed served upon such person upon the earliest of the following dates: (i) the date upon which such person acknowledges in writing receipt of the Notice of Administration; (ii) the date upon which the Notice of Administration is first served upon any other person entitled to service of the Notice of Administration (or the first among multiple persons entitled to such service); or, (iii) the date which is thirty (30) days after the date Letters of Administration are issued.

(b) Date Other Notices are Considered Served on Person who is Personal Representative. When a person who is entitled to service of notice under these rules of the Florida Probate Code (other than the Notice of Administration) is also a Personal Representative, any such notice shall be deemed as having been served upon such person upon the earliest of the following dates: (i) the date upon which such person acknowledges in writing receipt of the notice; (ii) the date upon which the notice is required to be served under these rules or the Florida Probate Code; or, (iii) the date upon which the notice is first served upon any other person entitled to service of the same notice.

MIA1\ESTATES\398491.1 09999/8888 MAD 11/1/2008

Appendix E-6

Appendix E-6

2. Proposed Revision to Rule 5.040(a), to Define "In the Manner Provided by Formal Notice."

(new subsection (a)(6)):

(6) Whenever service is required or permitted by statute or by these rules "in the manner provided for service by formal notice" or words of similar effect, such words shall mean the methods of service which are set forth in Section (a)(3) of this Rule 5.040.

In addition, all references in the Rules and statutes to "in the manner provided for service of formal notice" would need to be changed to "in the manner provided for service by formal notice".

- 2­MIA1\ESTATES\398491.1 09999/8888 MAD 11/1/2008

Appendix E-7

Appendix E-7

• Tae,

I tend to agree that this should be fixed

Best regards,

Charlie

From: [email protected] Reply-to: [email protected] To: [email protected] Sent: 6/28/2011 2:42:53 P.M. Eastern Daylight Time Subj: Re: [ABA-PTL] Florida - extension to close estate

**Change in Address-Please Note*"

If you have not done so, please update the list address to reflect the new address: ABA­[email protected]. Messages sent to the old address [email protected] will no longer be accepted after July 1st, 2011.

I tend to agree with you, but this may be a good candidate for a glitch bill fix.

Benjamin P. Shenkman, Esq. Gonzalez & Shenkman, P.L. 12012 South Shore Blvd., Suite 107 Wellington, FL 33414 561-227-1575

-----Original Message---·· From: Jeff Goethe <[email protected]> To: ABA-PTL <[email protected]> Sent: Tue, Jun 28, 2011 8:26am Subject: Re: [ABA-PTL] Florida - extension to close estate

Good question. I think the answer is yes. I have a few trust administrations here we've encouraged the client to file the return, but no probate dministrations. As you noted, the word "required" seems to be the issue. Rule 5.395 says that hen afederal estate tax return is "required," the personal representative's ust serve a Notice of Federal Estate Tax Return. Rule 2.250(0) sets forth the ime standards for probate cases, and extends the time for completing the dministration to 12 months after the due date of the federal tax return when a eturn is filed. Rule 2.250 does not speak in terms of a "required" filing. The eturn is "required" to make the election, but the portability election is ptional. Looking at the FlSSJ form 3.0950, the Notice of Federal Estate Tax Return Due imply says that the return is due, but does not mention "required". I think ou could file that and the clerk and/or probate coordinator would extend the ase deadlines accordingly. I think the form would be filed in good faith based pon the portability election. The PR's still on the hook with the IRS until hey process the return (although you don't expect any tax liability) and the PR s .still acting In the interests of the estate beneficiaries, or at least some

2

Page 124 of 131 Probate Rules Committee September 22, 2011

Appendix E-8

Appendix E-8

• • fthem. The other option would be to prepare a petitio11 for extension of time, explain hat the return is being filed to make the election, and ask for an extension hrough 12 months after the due date, citing Rule 2.250(D). If it's filed efore the normal12 month deadline to close the estate, it can be handled ex arte, and I don't think I've ever had trouble obtaining an initial extension. I hope that helps. Jeffrey S. Goethe oard Certified Wills, Trusts and Estates Attorney arnes Walker, Goethe & Hoonhout, Chartered 119 Manatee Avenue West radenton, Florida 34205 941} 741·8224 [email protected]

IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by he IRS, we inform you that any U.S. federal tax advice contained· in this ommunlcation (including any attachments} is not intended or written to be used, nd cannot be used, for the purpose of (i) avoiding penalties under the Internal evenue Code or (ii) promoting, marketing or recommending to another party any ransaction or matter addressed herein. CONFIDENTIALITY NOTICE: The infonnation contained in this message, and any ttachments, is legally privileged and confidential information and intended nly for the use of the individual or entity named above. If the reader of this essage is not the Intended recipient, you are hereby notified that any issemination, distribution or copy of this message, or its attachments, is trictly prohibited. If you have received this message, or its attachments, in rror please notify us immediately by telephone (941-741-8224 collect) and eturn the original message above via the United States Postal Service. Thank ou. REPRESENTATION: This email does not constitute ar~ offer or agreement to provide egal representation to the recipient of this message. -Original Message---· · rom: The Estate Planner's and Administrator's Discussion fmailto:[email protected] n Behalf Of Ben Shenkman ent: Monday, June 27,2011 3:00PM o: [email protected]

. ubject: [ABA-PTL] Florida - extension to close estate **Change in Address-Please Note•* If you have not done so, please update the list address to reflect the new ddress: [email protected]. Messages .sent to the old address [email protected] will no longer be accepted after July 1st, 2011.

uestlon for Florida lawyers:

s time for filing Petition for Discharge extended where 706 is not "required" ut is filed solely for surviving spouse to elect portability of deceased pouse's estate tax credit?

enjamin P. Shenkman, Esq. onzalez & Shenkman, P.L. 2012 South Shore Blvd., Suite 107 ellington, FL 33414 hone (561) 227-1575 ax (561) 227-1574 -mail: [email protected]

3

Page 125 of 131 Probate Rules Committee September 22, 2011

Appendix E-9

Appendix E-9

Subject. RE: Bar Form- P4-0400; Notice of Tal<ing Possession of Protected Homestead"

Judge Smith:

··s, the form is one of the Probate and Guaridanship Forms Committe Forms, promulgated through RPPTL and supplied f FLSSI I think I previously gave you a copy of the index of Florida Bar forms, but in case I didn't, I am attaching it The

Index is great because it gives the Rule and Statute reference for each form In general, the Committee that creates and reviews these forms (which, as you know, I have been on for many years) tries to follow the statute and rules exactly and not to add much, if any, editorial additions, and certainly not to sway from the language of the statute and rules

733.608(2) does not provide that the date and time of hearing, if known, would appear in the Petition But the Rule is as follows (see (b)(4), and (c)):

"RULE 5 404 NOTICE OF TAKING POSSESSION OF PROTECTED HOMESTEAD (a) Filing of Notice. If a personal representative takes possession of what appears reasonably to be protected homestead pending a determination of its homestead status, the personal representative shall file a notice of that act (b) Contents of Notice The notice shall contain: ·

{I) a legal description of the property; (2) a statement of the limited purpose for preserving, insuring, and

protecting it for the heirs or devisees pending a determination of the homestead status;

(3) the name and address of the personal representative and the personal representative's attorney, (4) if known, the location, date, and time the petition to determine homestead status will be heard, and

. (5) if the personal representative is in possession when the notice is filed, the date the personal representative took possession (c) Service of Notice The notice shall be served in the manner provided for service of formal notice on interested persons and on any person in actual possession of the property

Committee Notes Rule History 2002 Revision: New rule 2005 Revision. Term "devisees" substituted for "beneficiaries" in "lbdivision (b)(2) to clarify the status of persons interested in protected homestead. Committee notes revised

;tutory References§ 732.401, Fla Stat Descent of homestead § 7324015, Fla Stat Devise of homestead § 133.608{2), Fla. Stat General power of the personal representative Rule References Updated 3/10/11 Florida Probate Rules Page 91 of 160 Fla Prob. R 5 402 Notice of lien on protected homestead Fla Prob R 5 403 Proceedings to determine amount of lien on protected homestead Fla. Prob R 5 405 Proceedings to determine proteoted homestead real property "

Also note that Paragraph {c) says notice is by formal notice. So, in spite of the sentence about the hearing date, we do not believe that sentence should be considered the "Notice of Hearing"

I do not know why the Rules drafters put the statement in, but maybe it should be removed or should be clarified to indicate that formal notice is required, and this statement does not substitute for that The Probate Rules Committee is a Florida Bar, standing committee, not a Real Property, Probate and Trust Law Section committee, so I have nobody on that committee to contact as to this matter But I will tell David Brennan, Probate and Guardianship Forms Committee Chair, and Tae Kelley Bronner, RPPTL Probate Law and Procedure Chair, of the inquiry and response so they can decide whether to address it. Tae is also on Probate Rules Committee, as is Judge Mel Grossman, who I know you talk to from time to time But, as said, the forms committee would not remove a provision that is in the rules, unless the rule is changed. ·

Michael A Pyle Pyle & Dellinger, PL 1655 N. Clyde Morris Blvd Daytona Beaoh, FL 32117 Phone: (385) 615-9007 Fax: (386) 676-2615 email: mikep@pylelaw com

n1~ase vlsit our web site at: www .pylelaw com

I~OTICE OF CONFIDENTIALITY: The infonmatlon contained in this transmission is 1) Subject to the Attorney -Client Privilege; 2) Attorney Work Produc~ or

3

Page.111 of 131 Probate Rules Committee September 22, 2011

Appendix E-10

Appendix E-10

3) Confidential. it is intended only for. the individual designated above You are hereby notified that any dissemination, distribution, copying, or use of or reliance upon the information contained in and transmitted with this e"mall by or to anyone other than the recipient designated above by the sender is unauthorized and strictly prohibited If you have received this transmission in error please notify the sender by telephone

16) 615"9007 immediately Any communication erroneously transmitted to you should be Immediately deleted

Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of ( 1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein

-Original Message""""" From: Smith, Judge c, McFerrin [[email protected]) Sent: Friday, May 27, 2011 9:20AM To: Mike Pyle Co: Angie Efird (E-mail) Subject: Bar Form

Mike: This note is to you In your capacity as Bar Form guru! I recently reviewed a doc<Jment that the lawyer insisted was a standard Bar Form document I had never seen it

before, but this lawyer (Jeff Dees) is a careful, competent lawyer, so I took his word for it I told him 1would ask you about the document I could fax you the document if you'd like to see il but it is entitled "Notice of Taking Possession of Protected Homestead." The. form is strange to me because paragraph four has nothing to do with taking possession of the property, but rather is a "Notice of Hearing" on the PR's Petition to Determine Homestead The Notice of Hearing does not n~ve the required ADA information, and unless the reader is careful (many prose litigants and some lawyers are not), one

rid easily miss this notice of hearing and not attend or respond I will readily admit that time constraints keep me from moroughly reading all my court files and the numerous documents in them that do not require action by the court So, this form may be in greater use than I know. However, if a litigant were to challenge the adequacy of this notice of hearing, I would probably consider it faulty notice, even if given in good faith That would normally do no more harm than to slow the process a bit while we re"set the matter.

Do have an opinion on this one? ems

P s As a general matter of efficient practice, 1 usually try to discourage lawyers from combining separate pleadings or motions into one document It takes me much longer to dig into the combo pleading than to look at separate ones" just a practical matter, not a rule or Jaw

4

Page112of131 Probate Rules Committee September 22, 2011

Appendix E-11

Appendix E-11

Email from Rohan Kelley re 5.530: A matter involving a Summary Administration has come up recently in Dade County, although I’m surprised it hasn’t come up elsewhere before. The facts are that the decedent has been dead for more than 2 years. An heir filed a summary administration but the JA has indicated (perhaps pursuant to direction from the judge?) that 2 creditors who filed caveats 8 or 9 years ago must be paid before the order can issue. The rule, 5.350 provides in pertinent part:

(a) Petition. The petition shall be verified as required by law and shall contain: * * * (9) a statement either that all creditors’ claims are barred or that a diligent search and

reasonable inquiry for any known or reasonably ascertainable creditors has been made and one of the following:

(A) A statement that the estate is not indebted. (B) The name and address of each creditor, the nature of the debt, the amount of the

debt and whether the amount is estimated or exact, and when the debt is due. If provision for payment of the debt has been made other than for full payment in the proposed order of distribution, the following information shall be shown:

(i) The name of the person who will pay the debt. (ii) The creditor’s written consent for substitution or assumption of the debt by another

person. (iii) The amount to be paid if the debt has been compromised. (iv) The terms for payment and any limitations on the liability of the person paying the

debt; The “and” toward the end of the sentence in (9) is unclear whether it applies to both alternatives (claim is barred and diligent search has been performed), or only to the second alternative, diligent search has been performed. If it applies to the first alternative as well, the additional requirements of the petition are inconsistent with that alternative. Perhaps the wording could be clarified. Rohan Kelley The Kelley Law Firm, PL 3365 Galt Ocean Drive Fort Lauderdale, Florida 33308 Telephone: 954-563-1400 x11 Email [email protected]

Appendix E-12

Appendix E-12

MEMO

TO: Probate Rules Committee

FROM: Jeff Goethe

RE: Rule 5.696 - Annual Accounting

DATE: August 27, 2010

Rule 5.696 was amended by the committee in June to add a reference to RJA Rule 2.516

and to reflect the change in the title to Rule 5.041.

Rule 5.696 includes references to "papers" which should be changed to "documents,"

reflecting the shift to electronic filing and service.

Appendix E-13

Appendix E-13

RULE 5.696. ANNUAL ACCOUNTING

(a) Contents and Filing. The guardian of the property shall file an annual accounting as required by law. The annual accounting shall include:

(1) a full and correct account of the receipts and disbursements of all of the wards property over which the guardian has control and a statement of the wards property on hand at the end of the accounting period; and

(2) a copy of the statements of all of the wards cash accounts as of the end of the accounting period from each institution where the cash is deposited.

(b) Substantiating Papers. Unless otherwise ordered by the court, the guardian need not file the papers substantiating the annual accounting. Upon reasonable written request, the guardian of the property shall make the substantiating papers available for examination to persons entitled to receive or inspect the annual accounting. Substantiating papers need not be filed with the court unless so ordered.

(c) Interim Inspection of Records. Upon reasonable written request and notice, the guardian of the property shall make all material financial records pertaining to the guardianship available for inspections to those persons entitled to receive or inspect the annual accounting.

Committee Notes

Rule History

1991 Revision: New rule.

1992 Revision: Citation form changes in committee notes.

~010 Revision: Committee notes revised.] _________________________________________________________________ _ .. Comment [JSGl]: Change proposed as part of the fast-track project on e-service. Approved by the Proabte Rules Committee on June 21, 2010.

Statutory References

744.367 Fla. Stat. Duty to file annual guardianship report. 744.3678 Fla. Stat. Annual accounting. 744.3701 Fla. Stat. Inspection of report. 744.3735 Fla. Stat. Annual appearance of the guardian.

Rule References Fla. Prob. R. 5.020 Pleadings; verification; motions. Fla. Prob. R. 5.041 Service of pleadings and papei'Sdocuments. Fla. Prob. R. 5.060 Request for notices and copies of pleadings. Fla. Prob. R. 5.610 Execution by guardian. Fla. Prob. R. 5.695 Annual guardianship report. Fla. Prob. R. 5.700 Objection to guardianship reports. Fla. R. Jud. Admin. 2.516 Service of pleadings and documents.

Appendix E-14

Appendix E-14