Florida Probate Rule 5.025
RULE 5.025. ADVERSARY PROCEEDINGS
(a) Specific Adversary Proceedings. The following
proceedings are adversary proceedings unless otherwise ordered by
the court:
(1) to remove or surcharge a personal representative;
(2) to remove or surcharge a guardian;
(3) to obtain an injunction or temporary injunction
under section 825.1035, Florida Statutes;
(4) to probate a lost or destroyed will, or later-
discovered will;
(5) to determine beneficiaries;
(6) to contest the validity of a will;
(7) for revocation of probate of a will;
(8) to construe, reform, or modify a will;
(9) to cancel a devise;
(10) to partition property for the purposes of
distribution;
(11) to determine pretermitted status or pretermitted
share;
(12) to determine amount of elective share; and
(13) to determine elective share contribution.
(b) Declared Adversary Proceedings. Other proceedings
may be declared adversary by service on interested persons of a
separate declaration that the proceeding is adversary.
(1) If served by the petitioner, the declaration must be
served with the petition to which it relates.
(2) If served by the respondent, the declaration and a
written response to the petition must be served at the earlier of:
(A) within 20 days after service of the petition, or
(B) before the hearing date on the petition.
(3) When the declaration is served by a respondent, the
petitioner must promptly serve formal notice on all other interested
persons.
(c) Adversary Status by Order. The court may determine
any proceeding to be an adversary proceeding at any time.
(d) Notice and Procedure in Adversary Proceedings.
(1) Petitioner must serve formal notice, except as
provided in proceedings under section 825.1035, Florida Statutes.
(2) 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. The Florida Rules of Civil
Procedure govern, except for rule 1.525.
(3) The court on its motion or on motion of any
interested person may enter orders to avoid undue delay in the
main administration.
(4) If a proceeding is already commenced when an
order is entered determining the proceeding to be adversary, it must
thereafter be conducted as an adversary proceeding. The order
must require interested persons to serve written defenses, if any,
within 20 days from the date of the order. It is not necessary to re-
serve the petition except as ordered by the court.
(5) When the proceedings are adversary, the caption of
subsequent pleadings, as an extension of the probate caption, must
include the name of the first petitioner and the name of the first
respondent.
Committee Notes
The court on its initiative or on motion of any party may order
any proceeding to be adversary or nonadversary or enter any order
that will avoid undue delay. The personal representative would be
an interested person in all adversary proceedings. A prescribed form
for the caption is provided that will facilitate the clerk’s and the
court’s ability to segregate such adversary proceeding from other
adversary proceedings and from the main probate file:
Court
Case #
)
In Re Estate of John B. Jones )
)
Julia Jones, )
)
Petitioner, )
)
v. )
)
Harold Jones, as Personal )
Representative, et al., )
)
Respondents. )
Rule History
1975 Revision: New rule. 324 So. 2d 38.
1977 Revision: Editorial changes to (a)(1).
1984 Revision: Extensive changes, committee notes revised
and expanded.
1988 Revision: Changes in (a) add proceedings to remove a
guardian and to surcharge a guardian to the list of specific
adversary proceedings and delete proceedings to determine and
award the elective share from the list. Change in (b)(4) clarifies on
whom the petitioner must serve formal notice. Editorial change in
(d)(2) and (d)(5). Committee notes revised. Citation form changes in
committee notes.
1992 Revision: Deletion of (b)(3) as unnecessary. Former (b)(4)
renumbered as new (b)(3). Committee notes revised. Citation form
changes in committee notes.
2001 Revision: Change in (a) to add determination of amount
of elective share and contribution as specific adversary proceedings.
Committee notes revised.
2003 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
2011 Revision: Subdivision (a) revised to add “reform a will,
modify a will” and “determine pretermitted status.” Subdivision
(d)(2) modified to insure that an award of attorneys’ fees in a
probate or guardianship proceeding follows the law and procedures
established for such proceedings, rather than the law and
procedures for civil proceedings. See Amendments to the Florida
Family Law Rules of Procedure (Rule 12.525), 897 So. 2d 467 (Fla.
2005). Editorial changes to conform to the court’s guidelines for
rules submissions as set forth in Administrative Order AOSC06-14.
Committee notes revised.
2018 Revision: Subdivisions (a) and (d)(1) amended to
reference section 825.1035, Florida Statutes. Committee notes
revised.
2024 Revision: Subdivision (a) amended to create new
subdivisions (a)(1)–(a)(13) and to include in the list of specific
adversary proceedings those proceedings that contest the validity of
a will. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§§ 732.201–732.2155, Fla. Stat. Elective share of surviving
spouse.
§ 732.301, Fla. Stat. Pretermitted spouse.
§ 732.302, Fla. Stat. Pretermitted children.
§ 732.507, Fla. Stat. Effect of subsequent marriage, birth,
adoption, or dissolution of marriage.
§§ 732.6005–732.611, Fla. Stat. Rules of construction.
§ 732.615, Fla. Stat. Reformation to correct mistakes.
§ 732.616, Fla. Stat. Modification to achieve testator’s tax
objectives.
§ 733.105, Fla. Stat. Determination of beneficiaries.
§ 733.107, Fla. Stat. Burden of proof in contests; presumption
of undue influence.
§ 733.109, Fla. Stat. Revocation of probate.
§ 733.207, Fla. Stat. Establishment and probate of lost or
destroyed will.
§ 733.208, Fla. Stat. Discovery of later will.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.504, Fla. Stat. Removal of personal representative;
causes for removal.
§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.
§ 733.506, Fla. Stat. Proceedings for removal.
§ 733.5061, Fla. Stat. Appointment of successor upon
removal.
§ 733.603, Fla. Stat. Personal representative to proceed
without court order.
§ 733.609, Fla. Stat. Improper exercise of power; breach of
fiduciary duty.
§ 733.619(2), (4), Fla. Stat. Individual liability of personal
representative.
§ 733.814, Fla. Stat. Partition for purpose of distribution.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.474, Fla. Stat. Reasons for removal of guardian.
§ 744.477, Fla. Stat. Proceedings for removal of a guardian.
§ 825.1035, Fla. Stat. Injunction for protection against
exploitation of a vulnerable adult.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.270 Revocation of probate.
Fla. Prob. R. 5.360 Elective share.
Fla. Prob. R. 5.365 Petition for dower.
Fla. Prob. R. 5.440 Proceedings for removal.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.660 Proceedings for removal of guardian.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. R. Civ. P. 1.140 Defenses.
Fla. R. Civ. P. 1.160 Motions.
Fla. R. Civ. P. 1.200 Pretrial procedure.
Fla. R. Civ. P. 1.280 General provisions governing discovery.
Fla. R. Civ. P. 1.290 Depositions before action or pending
appeal.
Fla. R. Civ. P. 1.310 Depositions upon oral examination.
Fla. R. Civ. P. 1.340 Interrogatories to parties.
Fla. R. Civ. P. 1.380 Failure to make discovery; sanctions.
(a) Specific Adversary Proceedings. The following
proceedings are adversary proceedings unless otherwise ordered by
the court:
(1) to remove or surcharge a personal representative;
(2) to remove or surcharge a guardian;
(3) to obtain an injunction or temporary injunction
under section 825.1035, Florida Statutes;
(4) to probate a lost or destroyed will, or later-
discovered will;
(5) to determine beneficiaries;
(6) to contest the validity of a will;
(7) for revocation of probate of a will;
(8) to construe, reform, or modify a will;
(9) to cancel a devise;
(10) to partition property for the purposes of
distribution;
(11) to determine pretermitted status or pretermitted
share;
(12) to determine amount of elective share; and
(13) to determine elective share contribution.
(b) Declared Adversary Proceedings. Other proceedings
may be declared adversary by service on interested persons of a
separate declaration that the proceeding is adversary.
(1) If served by the petitioner, the declaration must be
served with the petition to which it relates.
(2) If served by the respondent, the declaration and a
written response to the petition must be served at the earlier of:
(A) within 20 days after service of the petition, or
(B) before the hearing date on the petition.
(3) When the declaration is served by a respondent, the
petitioner must promptly serve formal notice on all other interested
persons.
(c) Adversary Status by Order. The court may determine
any proceeding to be an adversary proceeding at any time.
(d) Notice and Procedure in Adversary Proceedings.
(1) Petitioner must serve formal notice, except as
provided in proceedings under section 825.1035, Florida Statutes.
(2) 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. The Florida Rules of Civil
Procedure govern, except for rule 1.525.
(3) The court on its motion or on motion of any
interested person may enter orders to avoid undue delay in the
main administration.
(4) If a proceeding is already commenced when an
order is entered determining the proceeding to be adversary, it must
thereafter be conducted as an adversary proceeding. The order
must require interested persons to serve written defenses, if any,
within 20 days from the date of the order. It is not necessary to re-
serve the petition except as ordered by the court.
(5) When the proceedings are adversary, the caption of
subsequent pleadings, as an extension of the probate caption, must
include the name of the first petitioner and the name of the first
respondent.
Committee Notes
The court on its initiative or on motion of any party may order
any proceeding to be adversary or nonadversary or enter any order
that will avoid undue delay. The personal representative would be
an interested person in all adversary proceedings. A prescribed form
for the caption is provided that will facilitate the clerk’s and the
court’s ability to segregate such adversary proceeding from other
adversary proceedings and from the main probate file:
Court
Case #
)
In Re Estate of John B. Jones )
)
Julia Jones, )
)
Petitioner, )
)
v. )
)
Harold Jones, as Personal )
Representative, et al., )
)
Respondents. )
Rule History
1975 Revision: New rule. 324 So. 2d 38.
1977 Revision: Editorial changes to (a)(1).
1984 Revision: Extensive changes, committee notes revised
and expanded.
1988 Revision: Changes in (a) add proceedings to remove a
guardian and to surcharge a guardian to the list of specific
adversary proceedings and delete proceedings to determine and
award the elective share from the list. Change in (b)(4) clarifies on
whom the petitioner must serve formal notice. Editorial change in
(d)(2) and (d)(5). Committee notes revised. Citation form changes in
committee notes.
1992 Revision: Deletion of (b)(3) as unnecessary. Former (b)(4)
renumbered as new (b)(3). Committee notes revised. Citation form
changes in committee notes.
2001 Revision: Change in (a) to add determination of amount
of elective share and contribution as specific adversary proceedings.
Committee notes revised.
2003 Revision: Committee notes revised.
2008 Revision: Committee notes revised.
2011 Revision: Subdivision (a) revised to add “reform a will,
modify a will” and “determine pretermitted status.” Subdivision
(d)(2) modified to insure that an award of attorneys’ fees in a
probate or guardianship proceeding follows the law and procedures
established for such proceedings, rather than the law and
procedures for civil proceedings. See Amendments to the Florida
Family Law Rules of Procedure (Rule 12.525), 897 So. 2d 467 (Fla.
2005). Editorial changes to conform to the court’s guidelines for
rules submissions as set forth in Administrative Order AOSC06-14.
Committee notes revised.
2018 Revision: Subdivisions (a) and (d)(1) amended to
reference section 825.1035, Florida Statutes. Committee notes
revised.
2024 Revision: Subdivision (a) amended to create new
subdivisions (a)(1)–(a)(13) and to include in the list of specific
adversary proceedings those proceedings that contest the validity of
a will. Committee notes revised.
Statutory References
§ 393.12, Fla. Stat. Capacity; appointment of guardian
advocate.
§§ 732.201–732.2155, Fla. Stat. Elective share of surviving
spouse.
§ 732.301, Fla. Stat. Pretermitted spouse.
§ 732.302, Fla. Stat. Pretermitted children.
§ 732.507, Fla. Stat. Effect of subsequent marriage, birth,
adoption, or dissolution of marriage.
§§ 732.6005–732.611, Fla. Stat. Rules of construction.
§ 732.615, Fla. Stat. Reformation to correct mistakes.
§ 732.616, Fla. Stat. Modification to achieve testator’s tax
objectives.
§ 733.105, Fla. Stat. Determination of beneficiaries.
§ 733.107, Fla. Stat. Burden of proof in contests; presumption
of undue influence.
§ 733.109, Fla. Stat. Revocation of probate.
§ 733.207, Fla. Stat. Establishment and probate of lost or
destroyed will.
§ 733.208, Fla. Stat. Discovery of later will.
§ 733.212, Fla. Stat. Notice of administration; filing of
objections.
§ 733.504, Fla. Stat. Removal of personal representative;
causes for removal.
§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.
§ 733.506, Fla. Stat. Proceedings for removal.
§ 733.5061, Fla. Stat. Appointment of successor upon
removal.
§ 733.603, Fla. Stat. Personal representative to proceed
without court order.
§ 733.609, Fla. Stat. Improper exercise of power; breach of
fiduciary duty.
§ 733.619(2), (4), Fla. Stat. Individual liability of personal
representative.
§ 733.814, Fla. Stat. Partition for purpose of distribution.
§ 744.3085, Fla. Stat. Guardian advocates.
§ 744.474, Fla. Stat. Reasons for removal of guardian.
§ 744.477, Fla. Stat. Proceedings for removal of a guardian.
§ 825.1035, Fla. Stat. Injunction for protection against
exploitation of a vulnerable adult.
Rule References
Fla. Prob. R. 5.040 Notice.
Fla. Prob. R. 5.270 Revocation of probate.
Fla. Prob. R. 5.360 Elective share.
Fla. Prob. R. 5.365 Petition for dower.
Fla. Prob. R. 5.440 Proceedings for removal.
Fla. Prob. R. 5.649 Guardian advocate.
Fla. Prob. R. 5.660 Proceedings for removal of guardian.
Fla. Prob. R. 5.681 Restoration of rights of person with
developmental disability.
Fla. R. Civ. P. 1.140 Defenses.
Fla. R. Civ. P. 1.160 Motions.
Fla. R. Civ. P. 1.200 Pretrial procedure.
Fla. R. Civ. P. 1.280 General provisions governing discovery.
Fla. R. Civ. P. 1.290 Depositions before action or pending
appeal.
Fla. R. Civ. P. 1.310 Depositions upon oral examination.
Fla. R. Civ. P. 1.340 Interrogatories to parties.
Fla. R. Civ. P. 1.380 Failure to make discovery; sanctions.