Fla. Prob. R. 5.080

As amended through March 26, 2024

Rule 5.080 - DISCOVERY AND SUBPOENA

(a) Adoption of Civil Rules. The following Florida Rules of Civil Procedure shall apply in all probate and guardianship proceedings:

(1) Rule 1.280, general provisions governing discovery.

(2) Rule 1.290, depositions before action or pending appeal.

(3) Rule 1.300, persons before whom depositions may be taken.

(4) Rule 1.310, depositions upon oral examination.

(5) Rule 1.320, depositions upon written questions.

(6) Rule 1.330, use of depositions in court proceedings.

(7) Rule 1.340, interrogatories to parties.

(8) Rule 1.350, production of documents and things and entry upon land for inspection and other purposes.

(9) Rule 1.351, production of documents and things without deposition.

(10) Rule 1.360, examination of persons.

(11) Rule 1.370, requests for admission.

(12) Rule 1.380, failure to make discovery; sanctions.

(13) Rule 1.390, depositions of expert witnesses.

(14) Rule 1.410, subpoena.

(b) Limitations and Costs. In order to conserve the assets of the estate, the court has broad discretion to limit the scope and the place and manner of the discovery and to assess the costs, including attorneys' fees, of the discovery against the party making it or against 1 or more of the beneficiaries of the estate or against the ward in such proportions as the court determines, considering, among other factors, the benefit derived therefrom.

(c) Application. It is not necessary to have an adversary proceeding under rule 5.025 to utilize the rules adopted in subdivision (a) above. Any interested person may utilize the rules adopted in subdivision (a).

FL. Prob. R. 5.080

Amended by 2022 WL 2721129, effective effective 10/1/2022; amended by 2021 WL 5050374, effective 10/28/2021; amended by 199 So.3d 835, effective 1/1/2017; amended by 824 So.2d 849, effective 5/2/2002; amended by 683 So.2d 78, effective 1/1/1997; 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

Subdivision (b) is not intended to result in the assessment of costs, including attorney's fees, in every instance in which discovery is sought. Subdivision (c) is not intended to overrule the holdings in In re Estate of Shaw, 340 So. 2d 491 (Fla. 3d DCA 1976), and In re Estate of Posner, 492 So. 2d 1093 (Fla. 3d DCA 1986).

Rule History

1975 Revision: This rule is the same as prior rule 5.080, broadened to include guardianships and intended to clearly permit the use of discovery practices in nonadversary probate and guardianship matters.

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

1984 Revision: Florida Rules of Civil Procedure 1.290, 1.300, 1.351, and 1.410 have been added.

1988 Revision: Subdivision (a)(15) deleted as duplicative of rule 5.070 Subpoena. Editorial change in (b). Citation form change in committee notes.

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

1996 Revision: Reference to rule 1.400 eliminated because of deletion of that rule from the Florida Rules of Civil Procedure. Editorial change.

2002 Revision: Reference to rule 1.410 transferred to subdivision (a) from former rule 5.070. Subdivision (b) amended to give court discretion to assess attorneys' fees. Subdivision (c) added. Committee notes revised.

2006 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

2016 Revision: Florida Rule of Civil Procedure 1.451 has been added to subdivision (a). Committee notes revised.

Statutory References

§ 731.201(23), Fla. Stat. General definitions.

§ 733.106, Fla. Stat. Costs and attorney's fees.

§ 744.105, Fla. Stat. Costs.

§ 744.108, Fla. Stat. Guardian's and attorney's fees and expenses.

Rule References

Fla. Prob. R. 5.025 Adversary proceedings.

Fla. R. Gen. Prac. & Jud. Admin. 2.535 Court reporting.