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Dealing With Missing Beneficiaries or Heirs in Florida Probate

March 11, 2015

Frequently we deal with Florida Probates where an heir or a beneficiary is unable to be found.  If you have a Florida Probate Administration where a beneficiary or an heir goes missing or you or your family has lost touch with the individual  you have a few options.  First, remember that the Florida Rules of Probate require that you provide formal notice to accomplish certain actions within your Probate.  More specifically, Florida Rule of Probate 5.040: Provides:

RULE 5.040. NOTICE (a) Formal Notice.

(3) Formal notice shall be served: (A) by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt as follows: (i) to the attorney representing an interested person; or (ii) to an interested person who has filed a request for notice at the address given in the request for notice; or (iii) to an incapacitated person or a person with a developmental disability to the person’s usual place of abode and to the person’s legal guardian, if any, at the guardian’s usual place of abode or regular place of business; or, if there is no legal guardian, to the incapacitated person or person with a developmental disability at the person’s usual place of abode and on the person, if any, having care or custody of the incapacitated person or person with a developmental disability at the usual place of abode or regular place of business of such custodian; or (iv) to a minor whose disabilities of nonage are not removed, by serving the persons designated to accept service of process on a minor under chapter 48, Florida Statutes; or (v) on any other individual to the individual’s usual place of abode or to the place where the individual regularly conducts business; or (vi) on a corporation or other business entity to its registered office in Florida or its principal business office in Florida or, if neither is known after reasonable inquiry, to its last known address; or (B) as provided in the Florida Rules of Civil Procedure for service of process; or (C) as otherwise provided by Florida law for service of process.

This last catch all provision for service allows a Personal Representative in Florida and/or his or her attorney to make use of the other forms of services provided for in the Florida Rules of Civil Procedure.  These are codified in part in Chapter 49 Florida Statutes, Constructive Service of Process.  If you cant find someone to serve, the Florida Rules of Civil Procedure provide an avenue for service via publication.  These are usually in the backpages of a local newspaper with other legal notices.  But before you can get there, all those attempting to provide this sort of constructive service must provide an affidavit of diligent inquiry.  In other words,  you have to show that you tried to find the person.  These requirements are set forth in Florida Statute 49.031 which provides:

49.031 Sworn statement as condition precedent.

(1) As a condition precedent to service by publication, a statement shall be filed in the action executed by the plaintiff, the plaintiff’s agent or attorney, setting forth substantially the matters hereafter required, which statement may be contained in a verified pleading, or in an affidavit or other sworn statement.

Then, depending on the type of action, there are several different requirements for an Affidavit set forth in Florida Statutes 49.031 through 49.071.  Once this affidavit is complied with you may petition the Court for the issuance of a Notice of Action to be published in a local newspaper in the jurisdiction upon which the case or claim is pending.  But for Florida probates, the rules provide an additional nuance of giving the Personal Representative the ability to appointment a Guardian Ad Litem for ascertainable individuals pursuant to Florida Rule of Probate 5.120 which provides:


(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.
An appointed Guardian Ad Litem for an undiscovered person will alleviate your notice issues.  The Guardian stands in the shoes of the beneficiary or heir.  Importantly, this Court appointed Guardian does not retain the ability to take any assets.  The Guardian simply insures that the best interests of this undiscovered heir or beneficiary are looked after.  If during the course of the probate proceeding the missing individual is still not found, the Personal Representative may petition the Probate Court to have the missing heir or beneficiary’s portion of the estate deposited into the Court Registry.  This unclaimed money is dealt with pursuant to Florida Statute 733.816 which provides a detailed procedure for holding the unclaimed funds.

If you find yourself dealing with a Probate that has become complicated because of missing or unknown heirs or beneficiaries, give us a call.

Brice Zoecklein, Esq.


Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.