Fl. Prob. R. 5.120

As amended through November 4, 2024

Rule 5.120 - ADMINISTRATOR AD LITEM AND GUARDIAN AD LITEM

(a) Appointment. When it is necessary that the estate of a decedent or a ward be represented in any probate or guardianship proceeding and there is no personal representative of the estate or guardian of the ward, or the personal representative or guardian is or may be interested adversely to the estate or ward, or is enforcing the personal representative's or guardian's own debt or claim against the estate or ward, or the necessity arises otherwise, the court may appoint an administrator ad litem or a guardian ad litem, as the case may be, without bond or notice for that particular proceeding. At any point in a proceeding, a court may appoint a guardian ad litem to represent the interests of an incapacitated person, an unborn or unascertained person, a minor or any other person otherwise under a legal disability, a person with a developmental disability, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. The administrator ad litem or guardian ad litem shall file an oath to discharge all duties faithfully and upon the filing shall be qualified to act. No process need be served upon the administrator ad litem or guardian ad litem, but such person shall appear and defend as directed by the court.

(b) Petition. The petition for appointment of a guardian ad litem shall state to the best of petitioner's information and belief:

(1) the initials and residence address of each minor, person with a developmental disability, or incapacitated person and year of birth of each minor who has an interest in the proceedings;

(2) the name and address of any guardian appointed for each minor, person with a developmental disability, or incapacitated person;

(3) the name and residence address of any living natural guardians or living natural guardian having legal custody of each minor, person with a developmental disability, or incapacitated person;

(4) a description of the interest in the proceedings of each minor, person with a developmental disability, or incapacitated person; and

(5) the facts showing the necessity for the appointment of a guardian ad litem.

(c) Notice. Within 10 days after appointment, the petitioner shall serve conformed copies of the petition for appointment of a guardian ad litem and order to any guardian, or if there is no guardian, to the living natural guardians or the living natural guardian having legal custody of the minor, person with a developmental disability, or incapacitated person.

(d) Report. The guardian ad litem shall serve conformed copies of any written report or finding of the guardian ad litem's investigation and answer filed in the proceedings, petition for compensation and discharge, and the notice of hearing on the petition to any guardian, or in the event that there is no guardian, to the living natural guardians or the living natural guardian having legal custody of the minor, person with a developmental disability, or incapacitated person.

(e) Service of Petition and Order. Within 10 days after appointment, the petitioner for an administrator ad litem shall serve conformed copies of the petition for appointment and order to the attorney of record of each beneficiary and to each known beneficiary not represented by an attorney of record.

(f) Enforcement of Judgments. When an administrator ad litem or guardian ad litem recovers any judgment or other relief, it shall be enforced as other judgments. Execution shall issue in favor of the administrator ad litem or guardian ad litem for the use of the estate or ward and the money collected shall be paid to the personal representative or guardian, or as otherwise ordered by the court.

(g) Claim of Personal Representative. The fact that the personal representative is seeking reimbursement for claims against the decedent paid by the personal representative does not require appointment of an administrator ad litem.

Fl. Prob. R. 5.120

Amended by 2021 WL 5050374, effective 10/28/2021; amended by 288 So.3d 565, effective 1/16/2020; amended by 139 So.3d 875, effective 4/22/2014; amended by 102 So.3d 505, effective 9/1/2012; amended by 986 So.2d 576, effective 7/10/2008; amended by 607 So.2d 1306, effective 1/1/1993; amended by 344 So.2d 828, effective 7/1/1977; amended by 324 So.2d 38, effective 1/1/1976; adopted by 201 So. 2d 409, effective 1/1/1968.

Committee Notes

Rule History

1977 Revision: Editorial change in (a) limiting application of rule to probate and guardianship proceedings. In (b) the petition for appointment of a guardian need not be verified. Deletion of (g) as being substantive rather than procedural and changing former (h) to new (g). Change in committee note to conform to statutory renumbering.

This rule implements sections 731.303(5), 733.308, and 744.391, Florida Statutes, and includes some of the provisions of prior rule 5.230.

1988 Revision: Editorial changes; captions added to paragraphs. Citation form changes in committee notes.

1992 Revision: Addition of phrase in subdivision (a) to conform to 1992 amendment to section 731.303(5), Florida Statutes. Editorial changes. Committee notes revised. Citation form changes in committee notes.

2003 Revision: Committee notes revised.

2006 Revision: Committee notes revised.

2008 Revision: Subdivisions (a), (b), (c), and (d) amended to include persons with a developmental disability. Committee notes revised.

2012 Revision: The phrase "deliver or mail" in subdivisions (c), (d), and (e) has been replaced with the word "serve" to comply with other rules relating to service of pleadings and documents. Committee notes revised.

2014 Revision: Amends subdivision (b)(1) to conform to Florida Rule of General Practice and Judicial Administration 2.425. Committee notes revised.

2020 Revision: Committee notes revised. Citation form changes in committee notes.

Statutory References

§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.

§ 731.303, Fla. Stat. Representation.

§ 733.308, Fla. Stat. Administrator ad litem.

§ 733.708, Fla. Stat. Compromise.

§ 744.3025, Fla. Stat. Claims of minors.

§ 744.3085, Fla. Stat. Guardian advocates.

§ 744.387, Fla. Stat. Settlement of claims.

§ 744.391, Fla. Stat. Actions by and against guardian or ward.

§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.

§ 985.43, Fla. Stat. Predisposition reports; other evaluations.

§ 985.441, Fla. Stat. Commitment.

§ 985.455, Fla. Stat. Other dispositional issues.

Rule References

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.