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. 2nd DCA 2009).