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Don’t Ignore Formal Notice Of A Florida Probate Proceeding

James W. Martin

Formal notice of a Florida probate proceeding must be served by a means of delivery requiring proof of delivery. Formal notices are sent along with copies of various probate documents in order to legally bind the person being served. The formal notice in a probate proceeding is similar to a summons in a civil proceeding. Service of a summons in a civil case is intended to give the court jurisdiction over the person being served. Service of formal notice in a probate proceeding is intended to give the court jurisdiction over that person’s interest in the probate estate. Florida Statutes Section 731.301(2) states: “Formal notice shall be sufficient to acquire jurisdiction over the person receiving formal notice to the extent of the person’s interest in the estate.”

When a Florida resident dies, a probate proceeding is usually required. The decedent’s last will and testament is filed with the Court along with a petition for administration asking the Court to admit the will to probate (validate the will) and appoint a PR (personal representative or executor). The PR will publish notice to creditors in a newspaper, serve possible creditors, collect assets, pay debts and expenses and taxes, and then make distributions to beneficiaries.
Various parts of a probate proceeding might call for service of formal notice. For example, Florida Probate Rule 5.025 requires service of formal notice to determine beneficiaries, construe a will, remove a PR and other adversary proceedings. Rule 5.530 requires service of formal notice of a petition for summary administration on beneficiaries and known and reasonably ascertainable creditors who have not signed the petition.

Florida Probate Rule 5.040(a)(1) states what the formal notice consists of, as follows: “?(1) When formal notice is given, a copy of the pleading or motion shall 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.”

Florida Probate Rule 5.040(a)(3) states that formal notice of a Florida probate proceeding shall be served either in the usual way of serving process in Florida (sheriff, process server, etc.) or by sending a copy by any commercial delivery service (e.g., FedEx, UPS, etc.) requiring a signed receipt or by any form of mail requiring a signed receipt (e.g., U.S. Mail certified return receipt requested). The Rule goes on to require that ?a verified statement of service be filed with an attachment consisting of the “signed receipt or other evidence satisfactory to the court that delivery was made to the addressee or the addressee’s agent.”

So, it’s important to remember that when it comes to Florida probate proceedings, you don’t need to serve formal notice by sheriff. You can serve it by FedEx, UPS, etc., as long as you follow the rules. And if you receive a formal notice, don’t wait for the sheriff to show up to serve you since the service by mail, FedEx, etc., might be valid enough to bind you under Florida law.

If you receive a “Formal Notice” of a Florida probate proceeding, don’t wait for the sheriff to show up to serve you since service by mail might be valid enough to bind you under Florida law.

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