Fla. Prob. R. 5.040

As amended through March 26, 2024

Rule 5.040 - NOTICE

(a) Formal Notice.

(1)Procedure for Formal Notice. When formal notice is given, a copy of the pleading or motion must 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 must 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 must be served in the following manner:

(A) by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt;

(B) as provided in the Florida Rules of Civil Procedure for service of process;

(C) as otherwise provided by Florida law for service of process; or

(D) by first-class mail when only in rem or quasi in rem relief is sought against a person if:

(i) registered or certified mail service to the addressee requiring a signed receipt is unavailable and if delivery by commercial delivery service requiring a signed receipt is also unavailable;

(ii) delivery pursuant to subdivision (a)(3)(A) is attempted and is refused by the addressee; or

(iii) delivery pursuant to subdivision (a)(3)(A) is attempted and is unclaimed after notice to the addressee by the delivering entity.

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

(A) service on an interested person represented by an attorney must 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 must be made by delivery to such interested person at the address given in the request for notice;

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

(i) to such person at his or her usual place of abode; and

(ii) to such person's legal guardian at the legal guardian's usual place of abode or regular place of business or, if such person does not have a legal guardian, to the person having care or custody of such person at his or her usual place of abode or regular place of business;

(D) service on a minor whose disabilities of nonage are not removed must 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 must 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 must 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) will be complete upon receipt by the person to whom delivery is made. Service of formal notice pursuant to subdivision (a)(3)(B) will 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) will be complete as provided by Florida law for service of process. Service of formal notice pursuant to subdivision (a)(3)(D) will be complete upon mailing.

(6)Proof of Service. Proof of service must be by verified statement of the person serving formal notice and there must 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. If 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 pursuant to subdivisions (a)(3)(B) or (a)(3)(C) must 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 must be served as provided in rule 5.041.

(c) 'Notice' Defined. In these rules, the Florida Probate Code, and the Florida Guardianship Law 'notice' 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 must 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 as provided in subdivision (a)(5). Proof of service must be in the manner set forth in subdivision (a)(6).

FL. Prob. R. 5.040

Amended by 2023 WL 1457568, effective 4/1/2023; amended by 2021 WL 5050374, effective 10/28/2021; amended by 309 So.3d 196, effective 12/31/2020; amended by 287 So.3d 492, effective 1/1/2020; amended by 199 So.3d 835, effective 1/1/2017; amended by 102 So.3d 505, effective 9/1/2012; amended by 50 So.3d 578, effective 1/1/2011; amended by 986 So.2d 576, effective 7/10/2008; amended by 959 So.2d 1170, effective 1/1/2008; amended by 912 So.2d 1178, effective 1/1/2006; amended by 778 So.2d 272, effective 1/1/2001; amended by 683 So.2d 78, effective 1/1/1997; amended by 584 So.2d 964, effective 10/1/1991; amended by 458 So.2d 1079, effective 1/1/1985; amended by 387 So.2d 949, effective 1/1/1981; 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

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.

Rule History

1975 Revision: Implements section 731.301, Florida Statutes.

1977 Revision: Reference to elisor.

1980 Revision: Editorial changes. Clarification of time for filing defenses after formal notice. Authorizes court to give relief to delinquent respondent from ex parte status; relief from service on numerous persons; allows optional use of formal notice.

1984 Revision: Editorial changes. Eliminates deadline for filing as opposed to serving defenses after formal notice; defines procedure subsequent to service of defenses after formal notice; new requirements for service of formal notice on incompetents and corporations; defines when service of formal notice is deemed complete; provisions relating to method of service of informal notice transferred to new rules 5.041 and 5.042; eliminates waiver of notice by will.

1988 Revision: Editorial changes. Committee notes revised. Citation form changes in committee notes.

1991 Revision: Subdivision (b) amended to define informal notice more clearly.

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

1996 Revision: Subdivision (a) amended to permit service of formal notice by commercial delivery service to conform to 1993 amendment to section 731.301(1), Florida Statutes. Editorial changes.

2001 Revision: Editorial changes in subdivision (a)(3)(A) to clarify requirements for service of formal notice.

2003 Revision: Committee notes revised.

2005 Revision: Subdivision (a)(3)(A) amended to delete requirement of court approval of commercial delivery service.

2006 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

2007 Revision: New subdivision (a)(3)(A)(iv) inserted in response to Cason ex rel. Saferight v. Hammock, 908 So. 2d 512 (Fla. 5th DCA 2005), and subsequent subdivisions renumbered accordingly. Committee notes revised.

2008 Revision: Subdivision (a)(3)(A)(iii) revised to include 'person with a developmental disability.' Committee notes revised.

2010 Revision: Subdivision (d) amended to clarify that the optional use of formal notice when only informal notice is required does not modify any time period otherwise specified by statute or rule. Committee notes revised.

2012 Revision: Subdivision (b) revised to reflect amendment to rule 5.041.

2016 Revision: Subdivision (e) created to specify when service in the manner provided for service of formal notice is completed. Committee notes revised.

2019 Revision: Subdivision (a) reformatted for easier reading and corrected syntax. Subdivision (a)(3)(D) amended to provide for service by first-class mail when only in rem or quasi in rem relief is sought under certain circumstances. Committee notes revised.

2020 Revision: Committee notes amended.

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

§ 1.01(3), Fla. Stat. Definitions.

ch. 48, Fla. Stat. Process and service of process.

ch. 49, Fla. Stat. Constructive service of process.

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

§ 731.105, Fla. Stat. In rem proceeding.

§ 731.201(18), (22), Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

§ 731.302, Fla. Stat. Waiver and consent by interested person.

§ 733.212, Fla. Stat. Notice of administration; filing of objections.

§ 733.2123, Fla. Stat. Adjudication before issuance of letters.

§ 733.502, Fla. Stat. Resignation of personal representative.

§ 733.613, Fla. Stat. Personal representative's right to sell real property.

§ 733.6175, Fla. Stat. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.

§ 733.901, Fla. Stat. Final discharge.

ch. 743, Fla. Stat. Disability of nonage of minors removed.

§ 744.106, Fla. Stat. Notice.

§ 744.301, Fla. Stat. Natural guardians.

§ 744.3085, Fla. Stat. Guardian advocates.

§ 744.3201, Fla. Stat. Petition to determine incapacity.

§ 744.331, Fla. Stat. Procedures to determine incapacity.

§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.

§ 744.441, Fla. Stat. Powers of guardian upon court approval.

§ 744.447, Fla. Stat. Petition for authorization to act.

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

Rule References

Fla. Prob. R. 5.025 Adversary proceedings.

Fla. Prob. R. 5.030 Attorneys.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.042 Time.

Fla. Prob. R. 5.060 Request for notices and copies of pleadings.

Fla. Prob. R. 5.180 Waiver and consent.

Fla. Prob. R. 5.560 Petition for appointment of guardian of an incapacitated person.

Fla. Prob. R. 5.649 Guardian advocate.

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

Fla. R. Gen. Prac. & Jud. Admin. 2.505 Attorneys.

Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Civ. P. 1.070 Process.

Fla. R. Civ. P. Form 1.902 Summons.