During a formal administration of a Florida probate case, there is often a need to provide formal notice to certain interested persons in the probate. Formal notice is used to acquire jurisdiction over that person or entity for the purposes of the Florida probate administration. Under section 731.301(2), Florida Statutes, “In a probate proceeding, formal notice is sufficient to acquire jurisdiction over the person receiving formal notice to the extent of the person’s interest in the estate or in the decedent’s protected homestead.” Further, under section 731.301(3), Florida Statutes, “Persons given proper notice of a proceeding are bound by all orders entered in that proceeding.” Therefore, in order to make sure that the Florida probate case is properly administered, formal notice is required to make sure that all issues involving interested persons are resolved by the end of the probate case.
What is formal notice? Under section 731.201(18), Florida Statutes formal notice “means a form of notice that is described in and served by a method of service provided under rule 5.040(a) of the Florida Probate Rules.”
Under Florida Probate Rule 5.040(a), formal notice must be served on interested persons and include the following:
- A copy of the pleading or motion
- A notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice
- A notice to the person served that a 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.
The major difference between formal notice and informal notice is the requirement for an answer to be filed in the probate case in response to formal notice. An answer to a petition sent under formal notice is required to be filed within 20 days after the day that the formal notice is received. Under section 731.301(2), Florida Statutes, formal notice is required to acquire jurisdiction over the person giving formal notice. This is different from informal notice, which just binds the persons that were provided by the orders of the Florida probate court, but does not provide jurisdiction to the court.
Under Florida law, formal notice is required to be given to all interested persons in the following instances:
- Formal notice must be provided to an interested person who has filed a caveat of a petition for administration and probate of a will under section 731.110(3), Florida Statutes.
- Formal notice must be provided to interested persons when the adjudication of the validity of a will is to be determined before probate begins under section 733.2123, Florida Statutes.
- Formal notice must be given to all people who are qualified to act a personal representative and has a preference equal to or greater than the person who is currently acting or proposed to be acting as personal representative under Florida Probate Code Rule 5.201.
- Formal notice must be provided to the surviving spouse and all known beneficiaries, unless the spouse and beneficiaries have already been provided formal notice under section 733.212, Florida Statutes.
- There are numerous other times when formal notice is necessary in a Florida probate case. Most are out of the scope of this blog post. If you think that you may need to give formal notice for an event in a Florida probate case, consult with your Florida probate attorney.
It is important to give formal notice when it is required, because if an interested person does not receive formal notice, that person may be able to bring an action later on in the probate administration or reopen the probate administration if there were assets of the estate that the person was entitled to. This is why it is important to make sure that you figure out the interested persons in a Florida probate administration and act proactively in giving formal notice when required.
If you need to probate a loved one’s estate, or think that you may be entitled to property in a loved one’s estate, contact us today for a free consultation. Our firm focuses in probate administration and probate litigation and may be able to help you.
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