PROBATE CORNER
Demystifying Formal Notice
DAVID M . GARTEN
In Rem Jurisdiction : Formal notice is strictly a probate and trust concept . It is a form of notice that is described in and served by a method of service provided under Fla . Prob . R . 5.040 ( a ). See § 731.201 ( 18 ), F . S . In probate proceedings , formal notice to a person is sufficient notice for the court to exercise its in rem jurisdiction over the person ’ s interest in the estate property or in the decedent ’ s protected homestead . The court does not acquire personal jurisdiction over a person by service of formal notice . See § 731.301 ( 2 ), F . S .
Adversary Proceedings : Petitioner must serve formal notice in all adversary proceedings . Adversary proceedings are defined in Fla . Prob . R . 5.025 ( a ) – ( c ). 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 , and the Florida Rules of Civil Procedure govern , except for rule 1.525 . See Fla . Prob . R . 5.025 ( d ). Depending on the venue , it may be necessary for the presiding judge , as opposed to the clerk of court , to enter a default .
Response Period : 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 .
See Fla . Prob . R . 5.040 ( a ). Fla . R . of Jud . Adm . 2.514 ( b ) does not apply to the computation of time following service by formal notice ( e . g ., the 5-day rule does not apply ). See Fla . Prob . R . 5.042 ( d ). If no answer 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 . See Fla . Prob . R . 5.040 ( a ).
The 20-day time period is merely a procedural rule and is not a statute of limitations or a nonclaim provision . Therefore , if no default is entered and an answer is served prior to the hearing on the petition / motion , the answer will not be stricken . See Nardi v . Nardi , 390 So . 2d 438 ( Fla . 3rd DCA 1980 ); Tanner v . Estate of Tanner , 476 So . 2d 793 ( Fla . 1st DCA 1985 ).
Trusts : If the settlor ’ s estate is being probated , and the settlor ’ s trust or the trustee of the settlor ’ s trust is a beneficiary under the settlor ’ s will , the trustee , any person employed by the trustee , or any interested person may have the propriety of employment and the reasonableness of the compensation of the trustee or any person employed by the trustee determined in the probate proceeding . In such a proceeding , the petitioner may serve formal notice as provided in the Florida Probate Rules , and such notice shall be sufficient for the court to acquire jurisdiction over the person receiving the notice to the extent of the person ’ s interest in the trust . See § 736.0206 ( 2 ) and ( 6 ), F . S .
Non-Interested Persons : An interested person is defined as " any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved ." See § 731.201 ( 23 ), F . S . A person who has no interest in the estate property or in the decedent ’ s protected homestead is not an interested person in the estate and cannot be served by formal notice . The non- interested person must be served by the traditional form of service of process prescribed by § 48.031 , F . S . to acquire in rem and / or in personam jurisdiction over him / her . For example , in Estate of Vernon , 608 So . 2d 510 ( Fla . 4th DCA 1992 ), the estate claimed that shares of stock previously held in the decedent ’ s name were estate assets . The court held that because the estate had previously entered into an agreement with defendants providing for the liquidation of the stock that resolved all claims between them , the defendants were non-interested persons . The estate ' s remedy was to institute an ordinary civil action against defendants . See also Galego v .
Robinson , 695 So . 2d 443 ( Fla . 2d DCA 1997 ); Kountze v . Kountze , 20 So . 3d 428 ( Fla . 2d DCA 2009 ).
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