Jun 28

Summary of 2020 Probate & Guardianship Legislative Changes

Changes to the Probate and Trust Codes

Laws of Florida Chapter 2020-67 includes changes affecting wills and estates. Some changes become effective upon becoming law, others on July 1, 2020, and others on October 1, 2020. The Probate Rules Committee is working on updates to affected probate rules, but they will not be filed with the Florida Supreme Court for consideration before July 1st. The forms committee for FLSSI is also aware of the changes and working to update their forms as quickly as possible.

  • Section 731.1065 is added to include a definition to include precious metals, such as bullion or coins, kept for historical, artistic, collectible or investment purposes as tangible personal property (effective for all proceedings commenced before, on or after July 1, 2020);
  • Section 731.201(32) is amended to clarify that a cause of action by the decedent is property of the estate and therefore within the authority of the personal representative (effective October 1, 2020);
  • Section 731.301(2) is amended to confirm that formal notice is sufficient to exercise in rem and quasi in rem jurisdiction, but not personal jurisdiction over the person served with formal notice (effective upon becoming law);
  • Section 733.212 is amended to require two new items in the Notice of Administration. (1) the surviving spouse’s deadline to file an election elect an elective share can be extended under 732.2135(2); and (2) a notice that the failure to contest a pour-over will can result in being barred from contesting the trust or other writing incorporated by reference into the will. (Effective October 1, 2020)
  • New language has been added to Section 733.610 to extend conflicts of interests for a personal representative to a sale or encumbrance involving the personal representative’s spouse, agent or attorney. (Effective July 1, 2020)
  • Section 733.617 has been amended to require written disclosure to a testator when the will designates the drafting attorney, including another attorney in the same firm or someone related to the attorney or an attorney in the same firm, as a personal representative. (It is effective October 1, 2020.) Without the proper disclosure, the attorney or related person is not entitled to compensation. This was previously addressed by an updated comment to Rule 4-1.8 of the Rules Regulating the Florida Bar in 2017. (Effective October 1, 2020)
  • Section 736.0708 is the Trust Code version of 733.617 for drafting attorneys or related persons being designated as trustee. This was previously addressed by an updated comment to Rule 4-1.8 of the Rules Regulating the Florida Bar in 2017. (Effective October 1, 2020)

The text of the probate changes can be found at: http://laws.flrules.org/2020/67

Changes to the Guardianship Laws

Laws of Florida 2020-35 includes changes affecting Guardianship proceedings. These changes are effective July 1, 2020.

  • Section 744.312 has been amended to require that the court consider any disqualifying factors under s. 744.309 and conflicts of interest under s. 744.446.
  • Section 744.334, which lists the requirements for a petition for appointment of a guardian, has been amended to require additional information, including reasons for the guardian’s appointment; whether the proposed guardian is a professional; the proposed guardian’s relation to the alleged incapacitated person or minor; any other types of guardianship proceedings or alternatives to guardianship for the alleged incapacitated person or minor; and includes a clearer definition of “alternatives to guardianship.” A petitioner who is a professional guardian cannot petition for his or her own appointment unless he or she is related to the alleged incapacitated person or minor. A public guardian appointed under s. 744.2006 for a person of limited financial means is excluded from rule prohibiting the petitioner from seeking his or her own appointment.
  • Section 744.363 is amended to require that the initial guardianship plan list any preexisting orders not to resuscitate or other advance directives defined under s. 765.101.
  • The requirements for the annual guardianship under s. 744.367 (the annual report of a guardian of the person and the annual report of a guardian of the property) must include a “declaration of all remuneration receipted by the guardian from any source for services rendered to or on behalf of the ward.”
  • Section 744.3675 has been amended to require that the annual guardianship plan for an adult ward include a list of preexisting orders not to resuscitate and advance health care directives, whether any such directives have been suspended by the court, and the steps taken to locate the advance directives.
  • Section 736.0207 has been amended to require court approval before the guardian may sign a do not resuscitate order. Expedited procedures are provided for the court’s consideration and authorization of a do not resuscitate order.
  • Section 744.446, as amended, prohibits a guardian from offering or receiving any form of kickback or indirect compensation for service as guardian. The amendments also prohibit conflicts of interest relating to the proposed guardian’s business transactions or activities with the ward, the presiding judge, any member of the appointed examining committee, any court employee involved in the guardianship process, or the attorney for the ward.

The text of the new legislation can be found at: http://laws.flrules.org/2020/35.

The Probate Rules Committee is currently drafting rule updates and the forms committee of FLSSI is also drafting updates, but they will not be ready prior to the July 1, 2020 effective date.