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.—
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:
RULE 5.120. ADMINISTRATOR AD LITEM AND GUARDIAN AD LITEM
If you find yourself dealing with a Probate that has become complicated because of missing or unknown heirs or beneficiaries, give us a call.