2011 Florida Statutes
PROBATE CODE: GENERAL PROVISIONS
PROBATE CODE: GENERAL PROVISIONS
TITLE XLIIESTATES AND TRUSTS
PROBATE CODE: GENERAL PROVISIONS
SHORT TITLE; CONSTRUCTION
NOTICE AND REPRESENTATION
SHORT TITLE; CONSTRUCTION
731.005 Short title.
731.011 Determination of substantive rights; procedures.
731.102 Construction against implied repeal.
731.103 Evidence as to death or status.
731.1035 Applicable rules of evidence.
731.104 Verification of documents.
731.105 In rem proceeding.
731.106 Assets of nondomiciliaries.
731.109 Seal of the court.
731.110 Caveat; proceedings.
731.005 Short title.—Chapters 731-735 shall be known and may be cited as the Florida Probate Code and referred to as the “code.”
History.—s. 1, ch. 74-106; s. 1, ch. 75-220; s. 4, ch. 2001-226.
731.011 Determination of substantive rights; procedures.—The code became effective on January 1, 1976. The substantive rights of all persons that vested prior to January 1, 1976, shall be determined as provided in former chapters 731-737 and 744-746. The procedures for the enforcement of vested substantive rights shall be as provided in the Florida Probate Rules.
History.—s. 4, ch. 74-106; ss. 2, 113, ch. 75-220; s. 5, ch. 2001-226.
731.102 Construction against implied repeal.—This code is intended as unified coverage of its subject matter. No part of it shall be impliedly repealed by subsequent legislation if that construction can reasonably be avoided.
History.—s. 1, ch. 74-106; s. 2, ch. 75-220.
731.103 Evidence as to death or status.—In proceedings under this code and under chapter 736, the following additional rules relating to determination of death and status are applicable:
(1) An authenticated copy of a death certificate issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date, and time of death and the identity of the decedent.
(2) A copy of any record or report of a governmental agency, domestic or foreign, that a person is alive, missing, detained, or, from the facts related, presumed dead is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
(3) A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. A petition for this determination shall be filed in the county in Florida where the decedent maintained his or her domicile or in any county of this state if the decedent was not a resident of Florida at the time his or her absence commenced.
(4) This section does not preclude the establishment of death by direct or circumstantial evidence prior to expiration of the 5-year time period set forth in subsection (3).
History.—s. 1, ch. 74-106; s. 2, ch. 75-220; s. 946, ch. 97-102; s. 1, ch. 2003-154; s. 27, ch. 2006-217.
Note.—Created from former s. 734.34.
731.1035 Applicable rules of evidence.—In proceedings under this code, the rules of evidence in civil actions are applicable unless specifically changed by the code.
History.—s. 28, ch. 2006-217.
731.104 Verification of documents.—When verification of a document is required in this code or by rule, the document filed shall include an oath or affirmation as provided in the Florida Probate Rules. Any person who willfully includes a false statement in the document shall be guilty of perjury.
History.—s. 1, ch. 74-106; s. 2, ch. 75-220; s. 6, ch. 2001-226.
731.105 In rem proceeding.—Probate proceedings are in rem proceedings.
History.—s. 3, ch. 75-220.
731.106 Assets of nondomiciliaries.—
(1) A debt in favor of a nondomiciliary, other than one evidenced by investment or commercial paper or other instrument, is located in the county where the debtor resides or, if the debtor is not an individual, at the place where the debtor has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is at the time of death.
(2) When a nonresident decedent, whether or not a citizen of the United States, provides by will that the testamentary disposition of tangible or intangible personal property having a situs within this state, or of real property in this state, shall be construed and regulated by the laws of this state, the validity and effect of the dispositions shall be determined by Florida law. The court may, and in the case of a decedent who was at the time of death a resident of a foreign country the court shall, direct the personal representative appointed in this state to make distribution directly to those designated by the decedent’s will as beneficiaries of the tangible or intangible property or to the persons entitled to receive the decedent’s personal estate under the laws of the decedent’s domicile.
History.—s. 3, ch. 75-220; s. 1, ch. 77-174; s. 947, ch. 97-102; s. 7, ch. 2001-226.
731.109 Seal of the court.—For the purposes of this code, the seal of the clerk of the circuit court is the seal of the court.
History.—s. 3, ch. 75-220.
731.110 Caveat; proceedings.—
(1) Any interested person who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court. The caveat of the interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered. The caveat of a creditor may be filed only after the person’s death.
(2) If the caveator is a nonresident and is not represented by an attorney admitted to practice in this state who has signed the caveat, the caveator must designate some person residing in the county in which the caveat is filed as the agent of the caveator, upon whom service may be made; however, if the caveator is represented by an attorney admitted to practice in this state who has signed the caveat, it is not necessary to designate a resident agent.
(3) If a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules.
(4) A caveat filed before the death of the person for whom the estate will be administered expires 2 years after filing.
History.—s. 3, ch. 75-220; s. 2, ch. 77-87; s. 1, ch. 85-79; s. 2, ch. 92-200; s. 948, ch. 97-102; s. 9, ch. 2001-226; s. 2, ch. 2007-74; s. 3, ch. 2010-132.
731.155 Applicability.—This act shall take effect January 1, 2002. The substantive rights of all persons that have vested prior to January 1, 2002, shall be determined as provided in former chapters 63, 215, 409, 660, and 731-737 as they existed prior to January 1, 2002. The procedures for the enforcement of substantive rights which have vested prior to January 1, 2002, shall be as provided in this act, except that any Family Administration filed before January 1, 2002, may be completed as a Family Administration.
History.—s. 195, ch. 2001-226.
731.201 General definitions.
731.201 General definitions.—Subject to additional definitions in subsequent chapters that are applicable to specific chapters or parts, and unless the context otherwise requires, in this code, in s. 409.9101, and in chapters 736, 738, 739, and 744, the term:
(1) “Authenticated,” when referring to copies of documents or judicial proceedings required to be filed with the court under this code, means a certified copy or a copy authenticated according to the Federal Rules of Civil Procedure.
(2) “Beneficiary” means heir at law in an intestate estate and devisee in a testate estate. The term “beneficiary” does not apply to an heir at law or a devisee after that person’s interest in the estate has been satisfied. In the case of a devise to an existing trust or trustee, or to a trust or trustee described by will, the trustee is a beneficiary of the estate. Except as otherwise provided in this subsection, the beneficiary of the trust is not a beneficiary of the estate of which that trust or the trustee of that trust is a beneficiary. However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103(14) shall be regarded as a beneficiary of the estate.
(3) “Child” includes a person entitled to take as a child under this code by intestate succession from the parent whose relationship is involved, and excludes any person who is only a stepchild, a foster child, a grandchild, or a more remote descendant.
(4) “Claim” means a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or estate, inheritance, succession, or other death taxes.
(5) “Clerk” means the clerk or deputy clerk of the court.
(6) “Collateral heir” means an heir who is related to the decedent through a common ancestor but who is not an ancestor or descendant of the decedent.
(7) “Court” means the circuit court.
(8) “Curator” means a person appointed by the court to take charge of the estate of a decedent until letters are issued.
(9) “Descendant” means a person in any generational level down the applicable individual’s descending line and includes children, grandchildren, and more remote descendants. The term “descendant” is synonymous with the terms “lineal descendant” and “issue” but excludes collateral heirs.
(10) “Devise,” when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will or trust. The term includes “gift,” “give,” “bequeath,” “bequest,” and “legacy.” A devise is subject to charges for debts, expenses, and taxes as provided in this code, the will, or the trust.
(11) “Devisee” means a person designated in a will or trust to receive a devise. Except as otherwise provided in this subsection, in the case of a devise to an existing trust or trustee, or to a trust or trustee of a trust described by will, the trust or trustee, rather than the beneficiaries of the trust, is the devisee. However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103(14) shall be regarded as a devisee.
(12) “Distributee” means a person who has received estate property from a personal representative or other fiduciary other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increments to them remaining in the trustee’s hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee. For purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(13) “Domicile” means a person’s usual place of dwelling and shall be synonymous with residence.
(14) “Estate” means the property of a decedent that is the subject of administration.
(15) “Exempt property” means the property of a decedent’s estate which is described in s. 732.402.
(16) “File” means to file with the court or clerk.
(17) “Foreign personal representative” means a personal representative of another state or a foreign country.
(18) “Formal notice” means a form of notice that is described in and served by a method of service provided under rule 5.040(a) of the Florida Probate Rules.
(19) “Grantor” means one who creates or adds to a trust and includes “settlor” or “trustor” and a testator who creates or adds to a trust.
(20) “Heirs” or “heirs at law” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
(21) “Incapacitated” means a judicial determination that a person lacks the capacity to manage at least some of the person’s property or to meet at least some of the person’s essential health and safety requirements. A minor shall be treated as being incapacitated.
(22) “Informal notice” or “notice” means a method of service for pleadings or papers as provided under rule 5.040(b) of the Florida Probate Rules.
(23) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.
(24) “Letters” means authority granted by the court to the personal representative to act on behalf of the estate of the decedent and refers to what has been known as letters testamentary and letters of administration. All letters shall be designated “letters of administration.”
(25) “Minor” means a person under 18 years of age whose disabilities have not been removed by marriage or otherwise.
(26) “Other state” means any state of the United States other than Florida and includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
(27) “Parent” excludes any person who is only a stepparent, foster parent, or grandparent.
(28) “Personal representative” means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.
(29) “Petition” means a written request to the court for an order.
(30) “Power of appointment” means an authority, other than as an incident of the beneficial ownership of property, to designate recipients of beneficial interests in property.
(31) “Probate of will” means all steps necessary to establish the validity of a will and to admit a will to probate.
(32) “Property” means both real and personal property or any interest in it and anything that may be the subject of ownership.
(33) “Protected homestead” means the property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under s. 4(b), Art. X of the State Constitution. For purposes of the code, real property owned as tenants by the entirety is not protected homestead.
(34) “Residence” means a person’s place of dwelling.
(35) “Residuary devise” means a devise of the assets of the estate which remain after the provision for any devise which is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount. If the will contains no devise which is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount, “residuary devise” or “residue” means a devise of all assets remaining after satisfying the obligations of the estate.
(36) “Security” means a security as defined in s. 517.021.
(37) “Security interest” means a security interest as defined in s. 671.201.
(38) “Trust” means an express trust, private or charitable, with additions to it, wherever and however created. It also includes a trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust. “Trust” excludes other constructive trusts, and it excludes resulting trusts; conservatorships; custodial arrangements pursuant to the Florida Uniform Transfers to Minors Act; business trusts providing for certificates to be issued to beneficiaries; common trust funds; land trusts under s. 689.071, except to the extent provided in s. 689.071(7); trusts created by the form of the account or by the deposit agreement at a financial institution; voting trusts; security arrangements; liquidation trusts; trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind; and any arrangement under which a person is nominee or escrowee for another.
(39) “Trustee” includes an original, additional, surviving, or successor trustee, whether or not appointed or confirmed by court.
(40) “Will” means an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person’s property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will.
History.—s. 1, ch. 74-106; s. 4, ch. 75-220; s. 1, ch. 77-174; s. 2, ch. 85-79; s. 66, ch. 87-226; s. 1, ch. 88-340; s. 7, ch. 93-257; s. 6, ch. 95-401; s. 949, ch. 97-102; s. 52, ch. 98-421; s. 11, ch. 2001-226; s. 106, ch. 2002-1; s. 2, ch. 2003-154; s. 2, ch. 2005-108; s. 29, ch. 2006-217; s. 3, ch. 2007-74; s. 8, ch. 2007-153; s. 1, ch. 2009-115; s. 4, ch. 2010-132.
Note.—Created from former s. 731.03.
NOTICE AND REPRESENTATION
731.302 Waiver and consent by interested person.
731.401 Arbitration of disputes.
(1) If notice to an interested person of a petition or other proceeding is required, the notice shall be given to the interested person or that person’s attorney as provided in the code or the Florida Probate Rules.
(2) In a probate proceeding, formal notice is sufficient to acquire jurisdiction over the person receiving formal notice to the extent of the person’s interest in the estate or in the decedent’s protected homestead.
(3) Persons given proper notice of a proceeding are bound by all orders entered in that proceeding.
History.—s. 1, ch. 74-106; s. 5, ch. 75-220; s. 3, ch. 77-87; s. 1, ch. 77-174; s. 1, ch. 93-257; s. 64, ch. 95-211; s. 950, ch. 97-102; s. 12, ch. 2001-226; s. 5, ch. 2010-132.
Note.—Created from former s. 732.28.
731.302 Waiver and consent by interested person.—Subsequent to the filing of a petition for administration, an interested person, including a guardian ad litem, administrator ad litem, guardian of the property, personal representative, trustee, or other fiduciary, or a sole holder or all coholders of a power of revocation or a power of appointment, may waive, to the extent of that person’s interest or the interest which that person represents, subject to the provisions of ss. 731.303 and 733.604, any right or notice or the filing of any document, exhibit, or schedule required to be filed and may consent to any action or proceeding which may be required or permitted by this code.
History.—s. 1, ch. 74-106; s. 6, ch. 75-220; s. 4, ch. 77-87; s. 267, ch. 79-400; s. 3, ch. 84-106; s. 25, ch. 2003-154.
Note.—Created from former s. 732.28.
731.303 Representation.—In the administration of or in judicial proceedings involving estates of decedents, the following apply:
(1) Persons are bound by orders binding others in the following cases:
(a)1. Orders binding the sole holder or all coholders of a power of revocation or a general, special, or limited power of appointment, including one in the form of a power of amendment or revocation to the extent that the power has not become unexercisable in fact, bind all persons to the extent that their interests, as persons who may take by virtue of the exercise or nonexercise of the power, are subject to the power.
2. Subparagraph 1. does not apply to:
a. Any matter determined by the court to involve fraud or bad faith by the trustee;
b. A power of a trustee to distribute trust property; or
c. A power of appointment held by a person while the person is the sole trustee.
(b) To the extent there is no conflict of interest between them or among the persons represented:
1. Orders binding a guardian of the property bind the ward.
2. Orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will, in establishing or adding to a trust, in reviewing the acts or accounts of a prior fiduciary, and in proceedings involving creditors or other third parties. However, for purposes of this section, a conflict of interest shall be deemed to exist when each trustee of a trust that is a beneficiary of the estate is also a personal representative of the estate.
3. Orders binding a personal representative bind persons interested in the undistributed assets of a decedent’s estate, in actions or proceedings by or against the estate.
(c) An unborn or unascertained person, or a minor or any other person under a legal disability, who is not otherwise represented is bound by an order to the extent that person’s interest is represented by another party having the same or greater quality of interest in the proceeding.
(2) Orders binding a guardian of the person shall not bind the ward.
(3) In proceedings involving the administration of estates, notice is required as follows:
(a) Notice as prescribed by law shall be given to every interested person, or to one who can bind the interested person as described in paragraph (1)(a) or paragraph (1)(b). Notice may be given both to the interested person and to another who can bind him or her.
(b) Notice is given to unborn or unascertained persons who are not represented pursuant to paragraph (1)(a) or paragraph (1)(b) by giving notice to all known persons whose interests in the proceedings are the same as, or of a greater quality than, those of the unborn or unascertained persons.
(4) If the court determines that representation of the interest would otherwise be inadequate, the court may, at any time, 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, or a person whose identity or address is unknown. If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests.
(5) The holder of a power of appointment over property not held in trust may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power. Representation under this subsection does not apply to:
(a) Any matter determined by the court to involve fraud or bad faith by the trustee;
(b) A power of a trustee to distribute trust property; or
(c) A power of appointment held by a person while the person is the sole trustee.
History.—s. 1, ch. 74-106; s. 7, ch. 75-220; s. 5, ch. 77-87; s. 1, ch. 77-174; s. 1, ch. 88-217; s. 3, ch. 92-200; s. 951, ch. 97-102; s. 13, ch. 2001-226; s. 3, ch. 2002-82; s. 3, ch. 2003-154; s. 30, ch. 2006-217; s. 9, ch. 2007-153.
731.401 Arbitration of disputes.—
(1) A provision in a will or trust requiring the arbitration of disputes, other than disputes of the validity of all or a part of a will or trust, between or among the beneficiaries and a fiduciary under the will or trust, or any combination of such persons or entities, is enforceable.
(2) Unless otherwise specified in the will or trust, a will or trust provision requiring arbitration shall be presumed to require binding arbitration under s. 44.104.
History.—s. 4, ch. 2007-74.