Fla. Prob. R. 5.025

As amended through March 26, 2024

Rule 5.025 - ADVERSARY PROCEEDINGS

(a) Specific Adversary Proceedings. The following are adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, obtain an injunction or temporary injunction pursuant to section 825.1035, Florida Statutes, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, reform a will, modify a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will.

(b) Declared Adversary Proceedings. Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.

(1) If served by the petitioner, the declaration must be served with the petition to which it relates.

(2) If served by the respondent, the declaration and a written response to the petition must be served at the earlier of:

(A) within 20 days after service of the petition, or

(B) prior to the hearing date on the petition.

(3) When the declaration is served by a respondent, the petitioner must promptly serve formal notice on all other interested persons.

(c) Adversary Status by Order. The court may determine any proceeding to be an adversary proceeding at any time.

(d) Notice and Procedure in Adversary Proceedings.

(1) Petitioner must serve formal notice, except as provided in proceedings pursuant to section 825.1035, Florida Statutes.

(2) After service of formal notice, the proceedings, as nearly as practicable, must be conducted similar to suits of a civil nature, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.

(3) The court on its motion or on motion of any interested person may enter orders to avoid undue delay in the main administration.

(4) If a proceeding is already commenced when an order is entered determining the proceeding to be adversary, it must thereafter be conducted as an adversary proceeding. The order must require interested persons to serve written defenses, if any, within 20 days from the date of the order. It is not necessary to reserve the petition except as ordered by the court.

(5) When the proceedings are adversary, the caption of subsequent pleadings, as an extension of the probate caption, must include the name of the first petitioner and the name of the first respondent.

FL. Prob. R. 5.025

Amended by 253 So.3d 983, effective 9/27/2018; amended by 73 So.3d 205, effective 9/28/2011; amended by 807 So.2d 622, 816 So.2d 1095, effective 10/11/2001; amended by 607 So.2d 1306, effective 1/1/1993; amended by 531 So.2d 1261, effective 1/1/1989; amended by 458 So.2d 1079, effective 1/1/1985; amended by 344 So.2d 828, effective 7/1/1977; amended by 324 So.2d 38, effective 1/1/1976; adopetd by 201 So. 2d 409, effective 1/1/1968.

Committee Notes

The court on its initiative or on motion of any party may order any proceeding to be adversary or nonadversary or enter any order that will avoid undue delay. The personal representative would be an interested person in all adversary proceedings. A prescribed form for the caption is provided that will facilitate the clerk's and the court's ability to segregate such adversary proceeding from other adversary proceedings and from the main probate file:

		Court
		Case #
)
In Re Estate of John B. Jones	)
)
Julia Jones,	)
)
Petitioner,	)
)
v.	)
)
Harold Jones, as Personal	)
Representative, et al.,	)
)
Respondents.	)
__________________________

Rule History

1975 Revision: New rule. 324 So. 2d 38.

1977 Revision: Editorial changes to (a)(1).

1984 Revision: Extensive changes, committee notes revised and expanded.

1988 Revision: Changes in (a) add proceedings to remove a guardian and to surcharge a guardian to the list of specific adversary proceedings and delete proceedings to determine and award the elective share from the list. Change in (b)(4) clarifies on whom the petitioner must serve formal notice. Editorial change in (d)(2) and (d)(5). Committee notes revised. Citation form changes in committee notes.

1992 Revision: Deletion of (b)(3) as unnecessary. Former (b)(4) renumbered as new (b)(3). Committee notes revised. Citation form changes in committee notes.

2001 Revision: Change in (a) to add determination of amount of elective share and contribution as specific adversary proceedings. Committee notes revised.

2003 Revision: Committee notes revised.

2008 Revision: Committee notes revised.

2011 Revision: Subdivision (a) revised to add "reform a will, modify a will" and "determine pretermitted status." Subdivision (d)(2) modified to insure that an award of attorneys' fees in a probate or guardianship proceeding follows the law and procedures established for such proceedings, rather than the law and procedures for civil proceedings. See Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So. 2d 467 (Fla. 2005). Editorial changes to conform to the court's guidelines for rules submissions as set forth in Administrative Order AOSC06-14. Committee notes revised.

2018 Revision: Subdivisions (a) and (d)(1) amended to reference section 825.1035, Florida Statutes. Committee notes revised.

Statutory References

§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.

§§ 732.201-732.2155, Fla. Stat. Elective share of surviving spouse.

§ 732.301, Fla. Stat. Pretermitted spouse.

§ 732.302, Fla. Stat. Pretermitted children.

§ 732.507, Fla. Stat. Effect of subsequent marriage, birth, adoption, or dissolution of marriage.

§§ 732.6005-732.611, Fla. Stat. Rules of construction.

§ 732.615, Fla. Stat. Reformation to correct mistakes.

§ 732.616, Fla. Stat. Modification to achieve testator's tax objectives.

§ 733.105, Fla. Stat. Determination of beneficiaries.

§ 733.107, Fla. Stat. Burden of proof in contests; presumption of undue influence.

§ 733.109, Fla. Stat. Revocation of probate.

§ 733.207, Fla. Stat. Establishment and probate of lost or destroyed will.

§ 733.208, Fla. Stat. Discovery of later will.

§ 733.504, Fla. Stat. Removal of personal representative; causes for removal.

§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.

§ 733.506, Fla. Stat. Proceedings for removal.

§ 733.5061, Fla. Stat. Appointment of successor upon removal.

§ 733.603, Fla. Stat. Personal representative to proceed without court order.

§ 733.609, Fla. Stat. Improper exercise of power; breach of fiduciary duty.

§ 733.619(2), (4), Fla. Stat. Individual liability of personal representative.

§ 733.814, Fla. Stat. Partition for purpose of distribution.

§ 744.3085, Fla. Stat. Guardian advocates.

§ 744.474, Fla. Stat. Reasons for removal of guardian.

§ 744.477, Fla. Stat. Proceedings for removal of a guardian.

§ 825.1035, Fla. Stat. Injunction for protection against exploitation of a vulnerable adult.

Rule References

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.270 Revocation of probate.

Fla. Prob. R. 5.360 Elective share.

Fla. Prob. R. 5.365 Petition for dower.

Fla. Prob. R. 5.440 Proceedings for removal.

Fla. Prob. R. 5.649 Guardian advocate.

Fla. Prob. R. 5.660 Proceedings for removal of guardian.

Fla. Prob. R. 5.681 Restoration of rights of person with developmental disability.

Fla. R. Civ. P. 1.140 Defenses.

Fla. R. Civ. P. 1.160 Motions.

Fla. R. Civ. P. 1.200 Pretrial procedure.

Fla. R. Civ. P. 1.280 General provisions governing discovery.

Fla. R. Civ. P. 1.290 Depositions before action or pending appeal.

Fla. R. Civ. P. 1.310 Depositions upon oral examination.

Fla. R. Civ. P. 1.340 Interrogatories to parties.

Fla. R. Civ. P. 1.380 Failure to make discovery; sanctions.