Exhibit A - Proposed Procedures Guide

Transcription

1 LOCAL PROCEDURES OF THE EIGHTEENTH JUDICIAL CIRCUIT PROBATE AND GUARDIANSHIP DIVISION Exhibit A - Proposed Procedures Guide Exhibit B - Checklists February 3, 2008

2 Local Procedures of the Eighteenth Judicial Circuit Probate and Guardianship Division The Probate Judge of Brevard County, Florida and their staff are pleased to present these Local Procedures. The Procedures have been adopted by Administrative Order. The Guide is not a "do-it-yourself" guide and cannot be used as a substitute for attorneys, accountants, trust officers and other professional advisors necessary for proper probate, trust and guardianship administration. These Procedures do not constitute legal advice. Further, these Procedures are not a substitute for the Florida Statutes concerning probate, trust and guardianship administration, nor are they a replacement for other sources of substantive law or the Florida Probate Rules. If you have questions, legal advice should be obtained from your own attorney.

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4 Exhibit A Local Procedures of the Eighteenth Judicial Circuit Probate and Guardianship Division Revised, 2008 These Rules govern the Local Procedure in all Probate and Guardianship Proceedings, and shall be known as the Eighteenth Judicial Circuit Local Procedures ( Procedures ). Part I shall apply to all probate and guardianship procedures. Part II shall apply to probate proceedings alone. Part III applies to guardianship proceedings alone. Part IV applies to common probate & guardianship mistakes. Part V is the Frequently Asked Questions section. Applicability of Florida Probate Rules. In most circumstances regarding procedure, Florida Probate Rules provide detailed procedural rules. All counsel and parties are expected to be familiar with the Florida Probate Rules and to practice in accordance with those rules. i

5 TABLE OF CONTENTS I. Matters applicable to Probate and Guardianship Proceedings. A. CLERK'S OFFICE Hours Obtaining Files Unavailable Court Files Obtaining Copies...2 B. HEARINGS 1. Motion Calendar...2 a. Setting a Motion Hearing Ex Parte Specially Set Hearings...3 C. MATTERS TAKEN UNDER ADVISEMENT...3 II. Matters applicable to Probate Proceedings. A. OPENING FILES Formal Administration Posting Bond Summary Administration Disposition of Personal Property without Administration...5 B. REOPENING ESTATES Closed By Order of Discharge...6 a. No Letters Needed...6 ii

6 b. Letters to be Reinstated...6 c. Newly Discovered Assets in Context of Summary or Family Administration Closed By Court Order...6 a. Summary Administration Proceedings...6 b. Formal Administration Proceedings...7 C. OTHER EXEMPT PROPERTY DETERMINATIONS...7 D. CLOSING ESTATES...8 E. DISCRETIONARY DETERMINATION OF SECURITY FOR ESTATES AND GUARDIANSHIPS Types and Determination of Securities...8 F. SALE OF REAL PROPERTY IN ESTATES...9 III. Matters applicable to Guardianship Proceedings. A. OPENING FILES...9 B. EMERGENCY TEMPORARY GUARDIANSHIPS...10 C. BACKGROUND INVESTIGATION Application for Appointment No Felony Conviction Prospective Guardians Nonprofessional Guardians Professional Guardians...10 D. SETTLEMENTS...10 E. GUARDIAN AD LITEMS...11 F. FEES Attorneys Guardians...11 iii

7 G. INITIAL INVENTORIES, INITIAL PLAN, ANNUAL ACCOUNTINGS, ANNUAL PLANS AND SIMPLIFIED ACCOUNTINGS...11 H. SALE OF REAL PROPERTY...12 I. DEPOSITORIES IN GUARDIANSHIPS...12 J. SHOW CAUSE PROCEDURES Failure to File Non-Compliant Filing...13 K. CLOSING GUARDIANSHIPS...13 L. MENTAL HEALTH PETITIONS Incapacity Baker Act Marchman Act...14 IV. Common Probate and Guardianship Mistakes...14 V. Frequently Asked Questions...15 iv

8 I. Matters Applicable to Probate and Guardianship Proceedings A. CLERK S OFFICE 1. Hours The Clerk s Offices are open from 8:00 a.m. to 5:00 p.m., Monday through Friday and are located at the following locations: Moore Justice Center (MJC) Melbourne 2825 Judge Fran Jamieson Way 51 S. Nieman Ave Viera, FL Melbourne, FL (321) (321) Historic Titusville Court House Merritt Island, Sherriff Dept. 506 South Palm Avenue 2575 N. Courtenay Pkwy. Titusville, FL Room 129 (321) Merritt Island, FL (321) Palm Bay 450 Cogan Drive SE Palm Bay, FL (321) Obtaining Files To review any open file or request copies of documents from open files, regardless of the year, you may appear in person at any of the above Clerk s offices. To review probate files for years 1981 through present that are closed, you must first order the file by calling (321) or by going to any of the Clerk s offices. It takes two to three days to transfer these files from storage to any of the Clerk s offices. Upon receipt of the requested file, you will be notified by telephone that your file is available for review. Probate and Mental Health files before 1981 are available on microfilm. The address where you can mail your request for copies is Land Records, PO Box 2767, Titusville, FL or you can request a file on the Brevard County Clerk Website. You can also request a file in person at the Parkway complex, 700 South Park Ave, Titusville, FL

9 Confidential files in Guardianship can only be reviewed by the ward, guardian or the attorney representing them. Confidential files in Probate can only be reviewed by the Personal Representative or the attorney representing the personal representative. The attorney or public cannot remove files from the Clerk s Office or Courthouse without a court order. 3. Unavailable Court Files If a file is checked out of the Clerk s Office to the Judge, Judicial Assistant, Staff Attorney, and Court Coordinator, it will be made available to an attorney or public unless extraordinary circumstances exist. The Clerk s Office will attempt to obtain the file for your review upon request. 4. Obtaining Copies Copies are available for $1.00 per page and an additional $1.50 per document to certify. Requests for five (5) copies or less may be obtained by visiting the Clerk s Office. Requests for more than five (5) copies must be made in writing, with a check made payable to the Clerk of Courts, and must include a self addressed stamped envelope. Please send these requests to: Clerk of Court, Land Records, P.O. Box 2767, Titusville, FL B. HEARINGS 1. Motion Calendar a. Setting a Motion Hearing Contact the current Probate and Guardianship Judge s Judicial Assistant to schedule a hearing. Copies of the notice of hearing, the motion, and any document to which the motion is addressed shall be served to all interested parties and to the Judicial Assistant in advance of the hearing. The original notice should be sent to the Clerk for filing. Hearings should be coordinated with opposing counsel so as to avoid scheduling conflicts. If an attorney needs to cancel a hearing, the attorney who set the hearing must call the Judge s Judicial Assistant as soon as possible so that the Court s calendar/docket can be kept current. Failure to notify the Court of cancelled hearings is an abuse of the Court s time and a waste of judicial resources. 2

10 2. Ex Parte Ex parte dockets are currently held on most Tuesday s. If you believe you have an emergency that is not one of the delineated ex parte matters, you should obtain prior Court approval before scheduling ex parte time. Delineated Ex Parte Matters: Ex parte matters for the Probate Judge require the attorney to call the clerk s office at (321) Hearings for the ex parte calendar must be scheduled no later than noon one business day prior to the hearing. Ex parte hearings are currently held on most Tuesdays between 9:00-9:30 a.m. Please note that ex parte hearings are only for uncontested matters. Do not schedule any contested hearings for ex parte time. Letters of Administration may be entered at an ex parte hearing when it is clear that the Court will not require the posting of a bond by the personal representative. Letters of Administration will not be entered when the court file reflects a Caveat by Interested Persons (other than a creditor) entitled to formal notice of the administration of the decedent s estate. Guardianship cases are digitally recorded pursuant to state law. If any party or attorney wants a probate case recorded, they must arrange in advance for the services of a court reporter. 3. Specially Set Hearings Specially set hearings are scheduled throughout the week at various times and days, depending on availability. A specially set hearing must be scheduled with the Judicial Assistant. After a date has been assigned, the attorney must send a Notice of Hearing and a copy of the motion or pleadings to all counsel and interested persons with courtesy copies of both to the Court. All original pleadings/papers are to be forwarded to the Clerk. Hearings should be coordinated with opposing counsel so as to avoid scheduling conflicts. Counsel should attempt in good faith to resolve disputed matters prior to scheduling a hearing so as to minimize the impact on the Court s docket. C. MATTERS TAKEN UNDER ADVISEMENT 3

11 When a matter heard by the judge is taken under advisement by the Court and at least 30 days have passed with no response (via an Order or otherwise), a reminder letter may be sent to the Judge by any interested party or attorney inquiring as to the status of an Order. II. Matters Applicable to Probate Proceedings. A. OPENING FILES (see checklist in Appendix B) To open a new file, the attorney can either mail documents or take them directly to the Clerk s Office for filing. 1. Formal Administration Chapter 733, Fla. Stat. Filing Fee: $255 Documents to be filed in a Testate estate: Petition for Administration (testate) Original Will (if the will is not self proved, an Oath of Witness to Will, Proof of Will or a Petition to Appoint Commissioner and a Commission may be required) Order Admitting Will & Appointing Personal Representative Designation of Resident Agent & Acceptance Oath of Personal Representative Letters of Administration Documents to be filed in an Intestate estate: Petition for Administration (intestate) Order Appointing Personal Representative Designation of Resident Agent & Acceptance Oath of Personal Representative Letters of Administration 2. Posting Bond A bond to the extent of the value of the assets can be posted at the time of the initial filing. In the alternative, an attorney can wait until the Court enters the Order Admitting Will to Probate & Appointing Personal Representative. 4

12 According to Florida Statutes, the decision to require bond is within the discretion of the Court regardless of the language in the will waiving such requirement or beneficiaries waiving the bond. 3. Summary Administration (see checklist in Appendix B) , Fla. Stat. Filing Fee: $205 (assets greater than $1,000) Filing Fee: $105 (assets less than $1,000) Probate Assets: (1) greater than $1,000 and less than $75,000 (excluding homestead or exempt property) or (2) decedent has been dead for more than 2 years there is no limit on value of property. Petition for Summary Administration, (Testate) or (Intestate) Original Will (if applicable) Death Certificate Proof of Will, Oath of Witness to Will or Petition to Appoint Commissioner and Commission (if applicable) Order Admitting Will (if applicable) Order of Summary Administration, (Testate) or (Intestate) Effective January 1, 2000, for small estates only, the Department of Revenue will no longer require the filing of a tax return. The form of the affidavit is prescribed by the Department of Revenue. In the case of a nontaxable estate, the court may consider the affidavit prepared pursuant to (2), Fla. Stat., as evidence of the non-liability for tax. Contact the Department of Revenue for further information. 4. Disposition of Personal Property Without Administration , Fla. Stat. Filing Fee: $101 Decedent must have been a Brevard County resident procedure only available for personal property of decedent Disposition forms are available at the Clerk s Office, Probate Division. You may file forms by mailing to Clerk s Office reimbursement for funeral expenses up to $6,000 and for medical and hospital expenses incurred within the last sixty (60) days of decedent s death to the extent not covered by insurance. Only the person that paid will be reimbursed. Value of asset should not exceed reimbursement amount. B. REOPENING ESTATES 5

13 The following procedures must be complied with to reopen a closed estate. A $50 filing fee is required to reopen a closed estate. 1. Closed by Order of Discharge a. No Letters needed File a Petition for Subsequent Administration & Order for Subsequent Administration. The assets and beneficiaries should be described in detail, including addresses, with notice to all interested parties. b. Letters to be Reinstated File a Petition to Reopen & Order to Reopen for Further Administration. Pertinent language in the Petition to Reopen must include revoking the order of discharge and reinstating previous letters. When an estate is reopened usually a new Letter of Administration are submitted and signed by the court. As long as the personal representative remains the same, the Clerk s office will use the old Letters in the file with a new certification. If the personal representative is a different individual, then the successor personal representative will need to submit an Amended Petition, an Oath of Personal Representative, Order Appointing and proposed Letters of Administration. To re-close the estate, waivers and receipts for assets from beneficiaries and a Petition and Order for Discharge must be filed. c. Newly Discovered Assets in Context of Summary or Family Administration When a new asset is discovered and an Order of Summary Administration has already been entered by the Court, the petitioner can file an Amended Petition for Summary Administration, adding the newly discovered asset to the existing assets provided they do not exceed the statutory threshold for that type of estate administration. An amended Order of Summary Administration with a complete description and value of all assets should be provided to the court for entry. 2. Closed by Court Order To reopen, file a Petition and Order to Set Aside Order of Dismissal and Request to Reopen File and closing papers necessary to complete the administration of the estate. 6

14 a. Summary Administration Proceedings Generally, when a petitioner files a Homestead Petition in a Summary Administration proceeding, the Court will not require Notice to Creditors prior to the issuance of the Homestead Order and Order of Summary Administration. The petitioner must make a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors and serve a copy of the petition on those creditors, and make provision for payment for those creditors to the extent that assets are available. See, , Fla. Stat. The petitioner is required to sign the Verified Petition for Summary Administration which must contain an attestation that all representations are made under penalty of perjury. However, in the event that a Petition for Summary Administration has listed known creditors of the decedent, the Court will require the attorney for the petitioner to list the creditors in the petition by complying with PGR 5.530(a)(3)(C). b. Formal Administration Proceedings The following items are needed for a Formal Administration: INTESTATE 1) Petition for Administration 2) Oath of Personal Representative 3) Designation of Resident Agent & Acceptance 4) Order Appointing Personal Representative 5) Letters of Administration TESTATE 1) Petition for Administration 2) Will 3) Proof of Will (If Applicable) 4) Oath of Personal Representative 5) Designation of Resident Agent & Acceptance 6) Order Admitting Will & Appointing Personal Representative 7) Letters of Administration Publication of Notice to Creditors is not necessary if two years have passed since decedent s death. C. OTHER EXEMPT PROPERTY DETERMINATIONS Interested persons must receive notice of a Petition to Determine Exempt Property under Fla. Stat If an estate is insolvent or the effect of granting a Petition to Determine Exempt Property is that some creditors will not be paid in full, creditors are interested persons and should be listed on the 7

15 petition and provided with notice. A Petition for Family Allowance and Order Authorizing Family Allowance maybe required. The total family allowance has been increased to $18,000. Fla. Stat D. CLOSING ESTATES (see checklist in appendix B) PLEADINGS/PAPERS TO CLOSE a. Death Certificate b. Inventory & Proof of Service of Inventory c. Proof of Publication of Notice to Creditors d. Notice of Administration e. Florida Tax Release with and Estate Tax Closing Letter/or Affidavit of No Estate Tax Due f. Certificate of Service that Agency for Health Care Administration was served with a Notice of Creditors if decedent is 55 years of age or older FS g. Receipt of Beneficiaries h. Verified Statement Regarding Creditors i. Resolution or Satisfaction of any/all claims timely filed against Estate j. Final Accounting or Waivers of same by Beneficiaries k. Petition for Discharge l. Schedule of Distribution (Unless Waived) m. Report of Distribution (Unless Waived) n. Order of Discharge *Effective January 1, 2000, for small estates only, the Department of Revenue will no longer require the filing of a tax return and the personal representative may execute an affidavit attesting that the estate is not taxable. The form of the affidavit is prescribed by the Department of Revenue. In the case of a nontaxable estate, the court may consider the affidavit prepared pursuant (2), Fla. Stat., as evidence of the non-liability for tax. Contact the Department of Revenue for further information. E. DISCRETIONARY DETERMINATION OF SECURITY FOR ESTATES 1. Types and Determination of Securities 8

16 Security for estates, as determined by the Court, shall be by bond or depository for probate estates. Some factors in determining securities by the Court, but not all, are as follows: a. The fiduciary qualifications of the personal representative b. The size of the estate c. The liquidity of the estate d. Types of assets consisting of the estate e. The number of beneficiaries f. Whether the decedent has been dead for more than two years g. Types of beneficiaries (minors, incapacitated, etc.) h. The interest the personal representative has in the estate i. The role the attorney plays in the estate j. Meeting time standards promulgated by the Supreme Court F. SALE OF REAL PROPERTY IN ESTATES The Probate Division requires the following terms included in a Petition for an Order to Sell Real Property and the proposed Order authorizing the sale: a. Contract price in the petition and order; b. Statement that the contract price is the fair market price for the real property and how that conclusion was reached, i.e. an appraisal. c. Statement that the transaction is an a non complex transaction; d. The legal description and the street address of the property; e. The scheduled closing date (if known); f. If property is exempt homestead it transfers to beneficiaries with Order to Determine Homestead. If non-homestead, a Petition for Order Authorizing Sale of Real Property or a Personal Representative may be filed. III. Matters applicable to Guardianship Proceedings. A. OPENING FILES To open a new file, the attorney can either mail documents or take them directly to the Clerk s Office for filing. CHAPTER 744, Fla. Stat. Filing Fee: $255 for Person & Property $105 for Person only 9

17 Petition for Appointment of Guardian, Application for Appointment as Guardian Oath of Guardian Designation of Resident Agent and Acceptance Order Appointing Guardian Letters of Guardianship B. EMERGENCY TEMPORARY GUARDIANSHIPS Prior to the appointment of a guardian but after a Petition for Determination of Incapacity has been filed, the Court may appoint an Emergency Temporary Guardian (ETG). The Court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. ETG hearings are heard by the current guardianship judge. The petitioning attorney must file the appropriate paperwork with the Clerk. The Clerk s office will then process the filing so that an attorney (the Elisor ) is appointed to represent the Respondent in the proceedings filed in the mental health file. The petitioning attorney should immediately contact the court appointed attorney. C. BACKGROUND INVESTIGATION 1. Application for Appointment (Disclosure Statement for Nonprofit Corporate Guardian) 2. Guardian cannot have a felony conviction. Please review a proposed Guardian s application carefully. 3. Prospective Guardians must submit the guardianship applications with an application for investigation, application for appointment. 4. Appointed nonprofessional guardians must submit the guardianship application. 5. Professional guardians and employees of professional guardians who owe a fiduciary responsibility to a ward must submit a disclosure statement for nonprofit corporate guardians and, for each employee a statement. Fingerprinting shall also be required. D. SETTLEMENTS It is the policy of the probate division that all settlements arising out of an action filed in civil court must be approved by the civil court judge. 10

18 E. GUARDIANS AD LITEM In accordance with , Fla. Stat., cases involving a minor in which the gross settlement is an amount that is equal to or exceeds $15,000, the Court, may appoint a Guardian Ad Litem to represent the minor s interests. In cases involving a minor in which the gross settlement is equal to or exceeds $50,000 the Court shall, prior to approval of the settlement, appoint a Guardian Ad Litem or a guardian. F. FEES 1. Attorneys. Petitions for Attorney s fees must be accompanied by a detailed itemization of the task and the amount of time spent on said task in addition to all other requirements of , Fla. Stat. All petitions for fees must include the total amount of prior fees awarded. 2. Guardians. Petitions for Guardians fees must be accompanied by a detailed itemization of the task and the amount of time spent on said task in addition to all other requirements of , Fla. Stat. All petitions for fees must include the total amount of prior fees awarded. Fees will not be granted for time attending a Show Cause hearing unless exceptional circumstances are presented to the Judge. G. INITIAL INVENTORIES, INITIAL PLAN, ANNUAL ACCOUNTINGS, ANNUAL PLANS, SIMPLIFIED ACCOUNTINGS Certain forms are available free of charge off the Internet at on the Probate and Guardianship site. When filing an accounting, plan or inventory, please remember the following: All audit fees are due at the time of filing. Statements from financial institutions verifying amounts for inventories and accountings must be attached to the report. 11

19 Period ending dates on the annual accounting and annual plan should be the end of the anniversary month of the Guardian s appointment date. The inventory must be valued as of the Letters of Guardianship date. All reports that are filed must contain the original: Signatures of all guardians and attorneys. The physician s report for the annual plan must contain the date of the exam as well as the date the physician signed the report. If real property is sold by court order, attach a copy of the closing statement (HUD) for each transaction. H. SALE OF REAL PROPERTY. The Probate Division requires the following terms included in a Petition for an Order to Sell Real Property and the proposed Order authorizing the sale: 1. Contract price in the petition and order; 2. Statement the contract price is the fair market price for the real property and how that conclusion was reached, i.e. an appraisal. 3. Statement that the transaction is an arm's length transaction; 4. The legal description and the street address of the property; 5. The scheduled closing date (if known); 6. A Petition for and an Order Authorizing Sale of Real Property is filed. I. DEPOSITORIES IN GUARDIANSHIPS All depositories must be a designated financial institution under the same conditions and limitations as contained in , Fla. Stat. A designated financial institution shall also include a dealer, as defined in (6), Fla. Stat., if the dealer is a member of the Security Investment Protection Corporation and is doing business in the state. J. SHOW CAUSE PROCEDURES 1. Failure to File Failure to file an inventory, plan, accounting, any other pleading or failure to pay any required fee or cost will result in the issuance of an Order to Show Cause. The Show Cause hearing will be held before the current guardianship 12

20 judge and appearance is unless compliance with the order is completed before the hearing. Fees will not be granted for time attending a Show Cause hearing unless exceptional circumstances are presented to the Judge. 2. Non-Compliant Filing If the Guardianship Audit division of the Clerk s Office finds any inventory, plan or accounting to be non-compliant, the Clerk s office will provide the attorney and guardian with information regarding non-compliance and request compliance within approximately days. If, after that time, the file is still non-compliant, an Order to Show Cause will issue. The Show Cause hearing will be held before the current guardianship judge and appearance is mandatory unless compliance with the order has been completed before hearing. K. CLOSING GUARDIANSHIPS A Judge may consider a Petition for Discharge if waivers are filed with regard to all non-compliant matters by all interested persons. A Judge will not consider a Petition for Discharge if the file is non-compliant. L. MENTAL HEALTH PETITIONS 1. Incapacity , , , Fla. Stat. Filing Fee: $101 Petitions for Incapacity must be completely and accurately filled out before filed. The alleged incapacitated person s (AIP) address must be his/her present address. Failure to provide the most current address may delay the examining committee. If an AIP is moved from the address provided in the petition, please notify the Clerk s office, examining committee, and the court appointed attorney immediately. In addition, all next of kin should be listed in the petition and must be provided with copies of the petition and notice. 2. Baker Act Chapter 394, Fla. Stat. INVOLUNTARY EXAMINATION Filing Fee: None A Petition for Involuntary Examination for mental illness may be obtained in the Clerk s office. The Petition shall be filed in accordance with , 13

21 Fla. Stat. The Petition must contain sworn testimony. If a Judge grants the petition and enters an ex parte order for involuntary examination the patient is served and taken into custody then delivered to a receiving facility (normally Circle of Care) for the involuntary examination. The patient may be held no more than 72 hours unless a Petition for Long Term Placement filed by the receiving facility. 3. Marchman Act CHAPTER 397 Filing Fee: None A Marchman Act Petition is for involuntary assessment and/or treatment for substance abuse. A Petition to Marchman Act may be obtained in the Clerk s Office. A hearing will be set before a Judge and the petitioner must be present at that hearing. In addition, the alleged substance abuser must be served the Notice of Hearing or there must be proof that service was attempted. A lawyer is not involved in a Court ordered Involuntary Assessment. The person s admission to a facility may not be a longer than 5 days. A Petition for Involuntary Treatment is filed when a patient continues there abuse of drugs and alcohol usages after the Involuntary Assessment is done. The Hearing on Involuntary Treatment is a formal hearing with proof of service required on the Respondent. A Lawyer is appointed. IV. Common Probate and Guardianship Mistakes. 1. Omitting the attorney s Florida Bar Number 2. Omitting the date of Death and Social Security Number on Petition for Formal Administration or Summary Administration 3. Omitting consents from both parents if they are not petitioning to be appointed guardian (s) in minor guardianships 4. Improper Venue 5. Incorrect Filing Fees 6. Omission of attorney or personal representative s signatures on pleadings 7. Failing to file a copy of the inventory with the Department of Revenue. 14

22 V. Frequently Asked Questions A. ESTATES Q. Why do I need an attorney in Formal Administration or Guardianships? A. Every Personal Representative or Guardian, unless the Personal Representative remains sole interested person shall be represented by an attorney admitted to practice in Florida. Florida Probate Rules 5.030(a) Q. Why is the Judge requiring the personal representative to post bond? A. Fla. Stat., , the Court has the discretion to waive the Requirement of filing a bond, require a personal representative to post bond, decrease the bond, or increase additional surety. The Court may require a bond based on the residency of the personal representative or guardian, size, nature and liquidity of the estate or minor assets. The Court may still require a bond even if the Personal Representative is the only beneficiary to protect creditors. Q. What are the filing fees for the various estate administration proceedings? A. Disposition of personal property without administration: $ Summary Administration & Ancillary Summary Probate Assets less than $1,000.00: $ Probate Assets greater than $1, and less than $75,000.00: $ Formal Administration, Formal Ancillary or Conservatorship: $ Q. What is required to be filed when all the assets are in a Trust? A. Fla. Stat., requires a trustee to file with the Probate Court a Notice of Trust. The filing fee is $

23 B. GUARDIANSHIPS Q. What are the filing fees for the various guardian proceedings? A. Guardianship: $ B. Guardian of the person only: $ C. Veteran s Administration Guardianship: $ D. Petition for Determination of Incompetency: $ Q. Who May be appointed as a Guardian? A. Any Florida Resident who is 18 years of age or older or any nonresident of Florida that is: 1) related by lineal consanguinity to the ward; 2) a legally adopted child of the ward or adoptive parent of the ward; 3) a spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or 4) the spouse of a person otherwise qualified. Q. Who may not be appointed Guardian? A. No person who has been convicted of a felony or has a confirmed report of abuse, neglect, abandonment, or exploitation. In addition, no person who may be incapable to perform the duties of guardian due to incapacity or illness or is other wise unsuitable. Reference should also be made to , , Fla. Stat. Q. What needs to be filed to open a guardianship? A. The following forms are required to open a guardianship file: 1) Petition of Guardianship 2) Application to Serve Copy 3) Any required Consent 4) Oath of Guardian 16

24 5) Order Appointing Guardianship and Acceptance of Resident Agent 6) Letters of Guardianship Q. What is required to be filed for my background investigation? A. Nonprofessional Guardians being investigated for the first time must file the following: Mandatory Checklist Application for Appointment Nonprofessional Guardians filing for their annual reinvestigation must file the following: Mandatory Checklist Application for Appointment Professional Guardians filing for their annual investigation must file the following: Mandatory Checklist Fingerprint card ($53.25 fingerprint card processing cost made payable to FDLE) (the professional guardian and each employee with a fiduciary obligation to the ward) A Employee Statement with a Fiduciary Obligation to a Ward (for each employee with a mandatory checklist) Application for Appointment (Disclosure Statement if nonprofit corporate guardian Clerk s Office Processing Fee ($7.50 payable to the Clerk of Court) Professional Guardians filing for a new case within the year of their annual investigation must file: 17

25 Mandatory Checklist Clerk s Office Processing Fee ($7.50 payable to the Clerk of Court) Q. Where can I get an Application for Appointment? A. The Application for Appointment may be obtained from the Clerk s office or on the Circuit s website - on the Probate and Guardianship site. Q. Where can I get fingerprinted? A. Brevard County Sheriff s Office. Q. When must I be reinvestigated? A. Professional guardians must be reinvestigated annually. Q. I have received Letters of Guardianship, now what are my responsibilities? A. As not all guardianships have the same requirements, your attorney should provide you with all of your specific duties. In general you may have to file an initial inventory and initial plan. Annually you may be required to file annual accountings and annual plans as well as submit to annual re-investigations. If you are a nonprofessional guardian, you may also be required to attend a 4 or 8 hour guardianship course that will provide you with much of the information necessary to fulfill your fiduciary obligation. Q. Where and when can I take the non-professional guardianship course? A. The nonprofessional guardianship course has been designed to provide nonprofessional guardians with the information necessary to ensure their ward s best interest is being met. Currently, this course is offered through Brevard Community College. You can contact Brevard Community College at (321) This is not the 40- hour class required to be a professional guardian. Q. Where can I get the Brevard County accounting forms? 18

26 A. These forms are available online at the Brevard County Clerk of Courts web site or You can also obtain these forms from your attorney. Q. Can I close out a guardianship if my ward has died or turned 18 even though I am non-compliant in an old filing? A. Maybe. A waiver from all interested persons must be filed with the Court. If waivers are not filed, a case must be in compliant status for an Order of Discharge to be considered by the Judge. Q. Where can I get the Brevard County accounting forms? A. Forms can be found on the Brevard County Clerk of Courts web site, law library, or your attorney s office. Q. Which forms must I file? A. Please consult your attorney regarding your duty as a guardian and the forms you are required to file. Q. How much is the audit fee? A. It is based on the estate value as outlined in Chapter 744, Fla. Stat. Q. When are my reports due? A. The reporting due dates are based on the day Guardianship Letters were issued. More specifically, the Initial Inventory and Plan are due sixty (60) days following the issuance of the Guardianship Letters. The Annual Accounting & Plan are due on the first day of the fourth month following the anniversary month (which is the month Guardianship Letters were issued). In some circumstances, the Court may consider a change to the reporting period upon the filing of an appropriate petition. Q. What is the Guardianship Inception Date? A. The Guardianship Inception Date is the day Letters are signed by a Judge appointing an individual guardian over a minor child or 19

27 someone declared incapacitated. Q. When is my next report due and what period should it cover? A. That depends on the date your Letters of Guardianship were entered. All Annual Reports are due the first day of the fourth month after the Letter of Guardianship are entered. For example, if the Letters were issued June 15, 2007, the first Annual Guardianship Report would be due October 1 st, The first Annual Report would consist of an Annual Plan (7/1/08-6/30/09) and the Annual Accounting (6/15/07-6/30/08). All future yearly Annual Plans and Annual Accountings would cover a 12 month period of 7/1-6/30. The Annual Plans are always for the future year and the Annual Accountings are for the past year. If the Annual Accounting is complicated and the guardian can more efficiently report on the Ward s assets on a yearly calendar basis, 1/1-12/31, the attorney can submit a Petition and Order to Authorize the Annual Accounting that would be due yearly on 4/1. Q. Can I file a simplified accounting? A. Maybe. If you are the guardian of the property, and all assets in the estate are in restricted or frozen accounts, and the only transactions that occur are interest accrual, deposits pursuant to settlement or financial institution service charges. 20