House Bill hb0137c1
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    Florida House of Representatives - 2001              CS/HB 137
        By the Council for Smarter Government and Representatives
    Goodlette, Cantens, Pickens, Seiler and Bense
  1                      A bill to be entitled
  2         An act relating to probate; amending s. 63.172,
  3         F.S.; providing for the right of inheritance
  4         with respect to adoption; amending s. 409.9101,
  5         F.S.; revising language with respect to
  6         recovery of payments made on behalf of certain
  7         Medicaid-eligible persons; amending s. 655.936,
  8         F.S., relating to the opening of a decedent's
  9         safe-deposit box; amending s. 731.005, F.S.,
10         relating to the Florida Probate Code; amending
11         s. 731.011, F.S.; providing reference to the
12         Florida Probate Rules with respect to the
13         determination of substantive rights under the
14         Florida Probate Code; amending s. 731.104,
15         F.S.; revising language with respect to the
16         verification of documents; amending s. 731.106,
17         F.S., relating to the assets of
18         nondomiciliaries; repealing s. 731.107, F.S.,
19         relating to adversary proceedings; amending s.
20         731.110, F.S.; revising language with respect
21         to proceedings concerning caveat; repealing s.
22         731.111, F.S., relating to notice to creditors;
23         amending s. 731.201, F.S.; revising general
24         definitions with respect to the Florida Probate
25         Code; amending s. 731.301, F.S.; revising
26         language with respect to notice; amending s.
27         731.303, F.S., relating to representation;
28         amending s. 732.101, F.S., relating to
29         intestate estates; amending s. 732.102, F.S.;
30         revising language with respect to the share of
31         the spouse; increasing the monetary amount of
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    Florida House of Representatives - 2001              CS/HB 137
    405-109-01
  1         certain shares; amending s. 732.103, F.S.,
  2         relating to the share of certain heirs;
  3         amending s. 732.107, F.S.; clarifying
  4         provisions; revising a filing date; revising
  5         certain provisions regarding owner's
  6         representation; amending s. 732.1101, F.S.;
  7         providing that aliens shall have the same right
  8         of inheritance as citizens; amending s.
  9         732.2025, F.S.; redefining the term "qualifying
10         special needs trust" or "supplemental needs
11         trust"; amending s. 732.2035, F.S.; redefining
12         the term "decedent's ownership interest";
13         amending s. 732.2045, F.S.; adding an exclusion
14         to the elective share for property that is part
15         of the protected homestead; amending s.
16         732.2055, F.S.; redefining "value" for purposes
17         of calculating the elective estate; amending s.
18         732.2075, F.S.; revising the formula for
19         payment of the elective share; amending s.
20         732.2085, F.S.; adding a cross reference;
21         amending s. 732.2095, F.S.; correcting a cross
22         reference; modifying the formula for
23         determining the fair market value of assets
24         regarding the elective share; amending s.
25         732.2105, F.S.; revising the effect of an
26         elective share election on other estate
27         interests; amending s. 732.2125, F.S.; revising
28         language with respect to the right of election;
29         amending s. 732.2135, F.S.; revising language
30         with respect to time of election, extensions,
31         and withdrawal; amending s. 732.2145, F.S.;
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  1         revising language with respect to the order of
  2         contribution; amending s. 732.2155, F.S.;
  3         revising language with respect to the effective
  4         date of certain trusts; amending s. 732.218,
  5         F.S.; revising language with respect to
  6         rebuttable presumptions; amending s. 732.219,
  7         F.S., relating to disposition upon death;
  8         amending s. 732.221, F.S.; revising language
  9         with respect to perfection of title of personal
10         representative or beneficiary; amending s.
11         732.222, F.S., relating to the purchaser for
12         value or lender; amending s. 732.223, F.S.;
13         revising language with respect to perfection of
14         title of surviving spouse; amending s. 732.302,
15         F.S.; revising language with respect to
16         pretermitted children; amending s. 732.401,
17         F.S.; revising language with respect to descent
18         of homestead; amending s. 732.4015, F.S.;
19         revising language with respect to the
20         definition of "owner" and "devise" concerning
21         homestead; amending s. 732.402, F.S.; revising
22         language with respect to exempt property;
23         amending s. 732.403, F.S.; revising language
24         with respect to family allowance; amending s.
25         732.501, F.S.; revising language with respect
26         to who may make a will; amending s. 732.502,
27         F.S.; revising language with respect to
28         execution of wills; amending s. 732.503, F.S.;
29         revising language with respect to self-proof of
30         will; amending s. 732.505, F.S.; revising
31         language with respect to revocation by writing;
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  1         amending s. 732.507, F.S.; revising language
  2         with respect to effect of subsequent marriage,
  3         birth, or dissolution of marriage; amending s.
  4         732.513, F.S.; revising language with respect
  5         to devises to trustees; amending s. 732.514,
  6         F.S., relating to vesting of devises; amending
  7         s. 732.515, F.S.; revising language with
  8         respect to separate writing identifying devises
  9         of tangible property; amending s. 732.6005,
10         F.S., relating to rules of construction and
11         intention; amending s. 732.601, F.S.; revising
12         language with respect to the Simultaneous Death
13         Law; amending s. 732.603, F.S.; revising
14         language with respect to antilapse, deceased
15         devises, and class gifts; amending s. 732.604,
16         F.S., relating to the failure of a testamentary
17         provision; amending s. 732.605, F.S., relating
18         to change in securities, accessions, and
19         nonademption; amending s. 732.606, F.S.,
20         relating to nonademption of specific devises in
21         certain cases; amending s. 732.701, F.S.;
22         providing for agreements concerning succession
23         executed by a nonresident under certain
24         circumstances; amending s. 732.702, F.S.;
25         revising language with respect to waiver of
26         spousal rights; amending s. 732.801, F.S.;
27         revising language with respect to disclaimer of
28         interests in property passing by will or
29         intestate succession or under certain powers of
30         appointment; amending s. 732.804, F.S.;
31         providing for provisions relating to
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  1         disposition of the body; amending s. 732.901,
  2         F.S., relating to production of wills;
  3         eliminating language with respect to willful
  4         failure to deposit the will; transferring,
  5         amending, and renumbering ss. 732.910, 732.911,
  6         732.912, 732.913, 732.914, 732.915, 732.916,
  7         732.917, 732.918, 732.9185, 732.919, 732.921,
  8         732.9215, 732.92155, 732.9216, and 732.922,
  9         F.S.; correcting cross references; amending ss.
10         381.004 and 381.0041, F.S.; correcting cross
11         references; amending s. 733.101, F.S., relating
12         to the venue of probate proceedings; amending
13         s. 733.103, F.S., relating to the effect of
14         probate; amending s. 733.104, F.S.; revising
15         language with respect to the suspension of the
16         statute of limitations in favor of the personal
17         representative; amending s. 733.105, F.S.;
18         revising language with respect to the
19         determination of beneficiaries; amending s.
20         733.106, F.S.; revising language with respect
21         to costs and attorney fees; amending s.
22         733.107, F.S., relating to the burden of proof
23         in contests; amending s. 733.109, F.S.;
24         revising language with respect to the
25         revocation of probate; amending s. 733.201,
26         F.S., relating to proof of wills; amending s.
27         733.202, F.S.; providing that any interested
28         person may petition for administration;
29         repealing s. 733.203, F.S., relating to when
30         notice is required; amending s. 733.204, F.S.;
31         revising language with respect to the probate
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  1         of a will written in a foreign language;
  2         amending s. 733.205, F.S., relating to the
  3         probate of a notarial will; amending s.
  4         733.206, F.S., relating to the probate of a
  5         resident after foreign probate; amending s.
  6         733.207, F.S.; revising requirements with
  7         respect to the establishment and probate of a
  8         lost or destroyed will; amending s. 733.208,
  9         F.S.; revising language with respect to the
10         discovery of a later will; amending s. 733.209,
11         F.S.; providing requirements with respect to
12         the estates of missing persons; amending s.
13         733.212, F.S.; revising language with respect
14         to the notice of administration and filing of
15         objections; creating s. 733.2121, F.S.;
16         providing for notice to creditors and the
17         filing of claims; amending s. 733.2123, F.S.,
18         relating to adjudication before issuance of
19         letters; amending s. 733.213, F.S.; providing
20         that a will may not be construed until after it
21         has been admitted to probate; amending s.
22         733.301, F.S.; revising language with respect
23         to preference in the appointment of the
24         personal representative; amending s. 733.302,
25         F.S.; revising language with respect to who may
26         be appointed personal representative; amending
27         s. 733.305, F.S., relating to trust companies
28         and other corporations and associations;
29         amending s. 733.306, F.S.; revising language
30         with respect to the effect of the appointment
31         of a debtor; amending s. 733.307, F.S.,
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    Florida House of Representatives - 2001              CS/HB 137
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  1         relating to succession of administration;
  2         amending s. 733.308, F.S., relating to the
  3         administrator ad litem; amending s. 733.309,
  4         F.S., relating to the executor de son tort;
  5         creating s. 733.310, F.S.; providing for when a
  6         personal representative is not qualified;
  7         repealing s. 733.401, F.S., relating to the
  8         issuance of letters; amending s. 733.402, F.S.;
  9         revising language with respect to the bond of a
10         fiduciary; amending s. 733.403, F.S.; revising
11         language with respect to the amount of the
12         bond; amending s. 733.404, F.S., relating to
13         the liability of the surety; amending s.
14         733.405, F.S.; revising language with respect
15         to the release of surety; amending s. 733.406,
16         F.S.; revising language with respect to bond
17         premium allowable as an expense of
18         administration; amending s. 733.501, F.S.;
19         revising language with respect to curators;
20         amending s. 733.502, F.S.; revising language
21         with respect to the resignation of the personal
22         representative; amending s. 733.503, F.S.;
23         providing for the appointment of a successor
24         upon the resignation of the personal
25         representative; creating s. 733.5035, F.S.;
26         providing for the surrender of assets after
27         resignation; creating s. 733.5036, F.S.;
28         providing for accounting and discharge
29         following resignation; amending s. 733.504,
30         F.S.; revising language with respect to the
31         removal of the personal representative;
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    Florida House of Representatives - 2001              CS/HB 137
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  1         amending s. 733.505, F.S.; providing that a
  2         petition for removal shall be filed in the
  3         court having jurisdiction of the
  4         administration; amending s. 733.506, F.S.;
  5         revising language with respect to proceedings
  6         for removal; creating s. 733.5061, F.S.;
  7         providing for the appointment of a successor
  8         upon removal of the personal representative;
  9         repealing s. 733.507, F.S., relating to
10         administration following resignation or
11         removal; amending s. 733.508, F.S.; providing
12         for accounting and discharge upon removal;
13         amending s. 733.509, F.S.; revising language
14         with respect to surrender of assets upon
15         removal; amending s. 733.601, F.S.; revising
16         language with respect to time of accrual of
17         duties and powers; amending s. 733.602, F.S.,
18         relating to the general duties of a personal
19         representative; amending s. 733.603, F.S.,
20         relating to when a personal representative may
21         proceed without court order; amending s.
22         733.604, F.S.; revising language with respect
23         to inventory; repealing s. 733.605, F.S.,
24         relating to appraisers; creating s. 733.6065,
25         F.S.; providing for the opening of a
26         safe-deposit box; amending s. 733.607, F.S.;
27         revising language with respect to the
28         possession of the estate; amending s. 733.608,
29         F.S.; revising language with respect to the
30         general power of the personal representative;
31         amending s. 733.609, F.S.; revising language
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    Florida House of Representatives - 2001              CS/HB 137
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  1         with respect to improper exercise of power and
  2         the breech of fiduciary duty; amending s.
  3         733.610, F.S., relating to the sale,
  4         encumbrance, or transaction involving a
  5         conflict of interest; amending s. 733.611,
  6         F.S.; revising language with respect to persons
  7         dealing with the personal representative;
  8         amending s. 733.612, F.S.; revising language
  9         with respect to transactions authorized for the
10         personal representatives and exceptions
11         thereto; amending s. 733.6121, F.S., relating
12         to powers of the personal representative with
13         respect to environmental or human health laws
14         affecting property subject to administration;
15         amending s. 733.613, F.S.; revising language
16         with respect to the personal representatives'
17         right to sell real property; amending s.
18         733.614, F.S., relating to the powers and
19         duties of a successor personal representative;
20         amending s. 733.615, F.S.; revising language
21         with respect to joint personal representatives;
22         amending s. 733.616, F.S.; revising language
23         with respect to the powers of the surviving
24         personal representatives; amending s. 733.617,
25         F.S.; revising language with respect to
26         compensation of the personal representative;
27         amending s. 733.6171, F.S.; revising language
28         with respect to compensation of the attorney
29         for the personal representative; amending s.
30         733.6175, F.S.; revising language with respect
31         to proceedings for review of employment of
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  1         agents and compensation of personal
  2         representatives and employees of the estate;
  3         amending s. 733.619, F.S., relating to the
  4         individual liability of the personal
  5         representative; amending s. 733.701, F.S.;
  6         revising language with respect to notifying
  7         creditors; correcting cross references;
  8         amending s. 733.702, F.S.; revising language
  9         with respect to limitations on presentation of
10         claims; amending s. 733.703, F.S.; revising
11         language with respect to the form and manner of
12         presenting a claim; amending s. 733.704, F.S.,
13         relating to amendment of claims; amending s.
14         733.705, F.S.; revising language with respect
15         to payment of and objection to claims; amending
16         s. 733.707, F.S.; revising language with
17         respect to the order of payment of expenses and
18         obligations; amending s. 733.708, F.S.;
19         revising language with respect to compromise;
20         amending s. 733.710, F.S., relating to claims
21         against estates; amending s. 733.801, F.S.;
22         providing that the personal representative
23         shall pay as an expense of administration
24         certain costs; amending s. 733.802, F.S.;
25         revising language with respect to proceedings
26         for compulsory payment of devises or
27         distributive interest; amending s. 733.803,
28         F.S., relating to encumbered property; amending
29         s. 733.805, F.S.; revising language with
30         respect to the order in which assets are
31         appropriated; amending s. 733.806, F.S.,
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  1         relating to advancement; amending s. 733.808,
  2         F.S.; revising language with respect to death
  3         benefits and disposition of proceeds; amending
  4         s. 733.809, F.S., relating to right of
  5         retainer; amending s. 733.810, F.S.; revising
  6         language with respect to distribution in kind
  7         and valuation; amending s. 733.811, F.S.;
  8         revising language with respect to the right or
  9         title of distributee; amending s. 733.812,
10         F.S.; providing for improper distribution or
11         payment and liability of distributee; amending
12         s. 733.813, F.S., relating to protection of the
13         purchaser from the distributee; amending s.
14         733.814, F.S.; revising language with respect
15         to partition for the purpose of distribution;
16         amending s. 733.815, F.S.; providing for
17         private contracts among certain interested
18         persons; amending s. 733.816, F.S., relating to
19         the distribution of unclaimed property held by
20         the personal representative; amending s.
21         733.817, F.S.; revising language with respect
22         to apportionment of estate taxes; amending s.
23         733.901, F.S.; providing requirements with
24         respect to final discharge; amending s.
25         733.903, F.S.; revising language with respect
26         to subsequent administration; amending s.
27         734.101, F.S., relating to the foreign personal
28         representative; amending s. 734.102, F.S.;
29         revising language with respect to ancillary
30         administration; amending s. 734.1025, F.S.;
31         revising language with respect to the
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  1         nonresident decedent's testate estate with
  2         property not exceeding a certain value in this
  3         state; providing for the determination of
  4         claims; amending s. 734.104, F.S., relating to
  5         foreign wills; amending s. 734.201, F.S.,
  6         relating to jurisdiction by act of a foreign
  7         personal representative; amending s. 734.202,
  8         F.S., relating to jurisdiction by act of
  9         decedent; repealing s. 735.101, F.S., relating
10         to family administration and the nature of the
11         proceedings; repealing s. 735.103, F.S.,
12         relating to petition for family administration;
13         repealing s. 735.107, F.S., relating to family
14         administration distribution; amending s.
15         735.201, F.S.; increasing a monetary amount
16         with respect to summary administration;
17         amending s. 735.203, F.S.; revising language
18         with respect to the petition for summary
19         administration; amending s. 735.206, F.S.;
20         revising language with respect to summary
21         administration distribution; amending s.
22         735.2063, F.S.; revising language with respect
23         to notice to creditors; repealing s. 735.209,
24         F.S., relating to joinder of heirs, devisees,
25         or surviving spouse in summary administration;
26         amending s. 735.301, F.S., relating to
27         disposition without administration; amending s.
28         735.302, F.S.; revising language with respect
29         to income tax refunds in certain circumstances;
30         creating s. 737.208, F.S.; prohibiting
31         distribution pending outcome of contest;
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  1         providing exceptions; amending s. 737.3054,
  2         F.S.; revising language with respect to
  3         trustee's duty to pay expenses and obligations
  4         of grantor's estate; amending s. 737.306, F.S.;
  5         revising language with respect to personal
  6         liability of trustee; creating s. 737.3061,
  7         F.S.; providing for limitation on actions
  8         against certain trusts; amending s. 737.308,
  9         F.S.; revising language with respect to notice
10         of trust; amending ss. 215.965, 660.46, and
11         737.111, F.S.; correcting cross references;
12         directing the Division of Statutory Revision
13         and Indexing to change the title of certain
14         parts of the Probate Code; providing an
15         effective date.
16
17  Be It Enacted by the Legislature of the State of Florida:
18
19         Section 1.  Paragraphs (b) and (c) of subsection (1) of
20  section 63.172, Florida Statutes, are amended to read:
21         63.172  Effect of judgment of adoption.--
22         (1)  A judgment of adoption, whether entered by a court
23  of this state, another state, or of any other place, has the
24  following effect:
25         (b)  It terminates all legal relationships between the
26  adopted person and the adopted person's relatives, including
27  the birth parents, except a birth parent who is a petitioner
28  or who is married to a petitioner, so that the adopted person
29  thereafter is a stranger to his or her former relatives for
30  all purposes, including inheritance and the interpretation or
31  construction of documents, statutes, and instruments, whether
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  1  executed before or after entry of the adoption judgment, that
  2  do not expressly include the adopted person by name or by some
  3  designation not based on a parent and child or blood
  4  relationship, except that rights of inheritance shall be as
  5  provided in the Florida Probate Code.
  6         (c)  Except for rights of inheritance, it creates the
  7  relationship between the adopted person and the petitioner and
  8  all relatives of the petitioner that would have existed if the
  9  adopted person were a blood descendant of the petitioner born
10  within wedlock. This relationship shall be created for all
11  purposes, including inheritance and applicability of statutes,
12  documents, and instruments, whether executed before or after
13  entry of the adoption judgment, that do not expressly exclude
14  an adopted person from their operation or effect.
15         Section 2.  Section 409.9101, Florida Statutes, is
16  amended to read:
17         409.9101  Recovery for payments made on behalf of
18  Medicaid-eligible persons.--
19         (1)  This section may be cited as the "Medicaid Estate
20  Recovery Act."
21         (2)  It is the intent of the Legislature by this
22  section to supplement Medicaid funds that are used to provide
23  medical services to eligible persons. Medicaid estate recovery
24  shall generally be accomplished by the agency through the
25  filing a statement of claim claims against the estate of a
26  estates of deceased Medicaid recipient recipients as provided
27  in part VII of chapter 733. Recovery The recoveries shall be
28  made pursuant to federal authority in s. 13612 of the Omnibus
29  Budget Reconciliation Act of 1993, which amends s. 1917(b)(1)
30  of the Social Security Act, 42 U.S.C. s. 1396p(b)(1).
31
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  1         (3)  Pursuant to s. 733.212(4)(a), the personal
  2  representative of the estate of the decedent shall serve the
  3  agency with a copy of the notice of administration of the
  4  estate within 3 months after the first publication of the
  5  notice, unless the agency has already filed a claim pursuant
  6  to this section.
  7         (3)(4)  The acceptance of public medical assistance, as
  8  defined by Title XIX (Medicaid) of the Social Security Act,
  9  including mandatory and optional supplemental payments under
10  the Social Security Act, shall create a debt to claim, as
11  defined in s. 731.201, in favor of the agency in as an
12  interested person as defined in s. 731.201. The claim amount
13  is calculated as the total amount paid to or for the benefit
14  of the recipient for medical assistance on behalf of the
15  recipient after the recipient he or she reached 55 years of
16  age. Payment of benefits to a person under the age of 55 years
17  does not create a debt. Upon filing of a statement of claim in
18  the probate proceeding, the agency shall be an interested
19  person as defined in s. 731.201 to the same extent as other
20  estate claimants There is no claim under this section against
21  estates of recipients who had not yet reached 55 years of age.
22         (4)(5)  At the time of filing the claim, The agency may
23  reserve the right to amend the claim as a matter of right up
24  to 1 year after the last date medical services were rendered
25  to the decedent amounts based on medical claims submitted by
26  providers subsequent to the agency's initial claim
27  calculation.
28         (5)(6)  The claim of the agency shall be the current
29  total allowable amount of Medicaid payments as denoted in the
30  agency's provider payment processing system at the time the
31  agency's claim or amendment is filed. The agency's provider
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  1  processing system reports shall be admissible as prima facie
  2  evidence in substantiating the agency's claim.
  3         (7)  The claim of the agency under this section shall
  4  constitute a Class 3 claim under s. 733.707(1)(c), as provided
  5  in s. 414.28(1).
  6         (6)(8)  The debt claim created under this section shall
  7  not be enforced if the recipient is survived by:
  8         (a)  A spouse;
  9         (b)  A child or children under 21 years of age; or
10         (c)  A child or children who are blind or permanently
11  and totally disabled pursuant to the eligibility requirements
12  of Title XIX of the Social Security Act.
13         (7)(9)  In accordance with s. 4, Art. X of the State
14  Constitution, No debt claim under this section shall be
15  enforced against any property that is determined to be exempt
16  from the claims of creditors under the constitution or laws of
17  this state the homestead of the deceased Medicaid recipient
18  and is determined to be exempt from the claims of creditors of
19  the deceased Medicaid recipient.
20         (8)(10)  The agency shall not recover from an estate if
21  doing so would cause undue hardship for the qualified heirs,
22  as defined in s. 731.201. The personal representative of an
23  estate and any heir may request that the agency waive recovery
24  of any or all of the debt when recovery would create a
25  hardship. A hardship does not exist solely because recovery
26  will prevent any heirs from receiving an anticipated
27  inheritance. The following criteria shall be considered by the
28  agency in reviewing a hardship request:
29         (a)  The heir:
30         1.  Currently resides in the residence of the decedent;
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  1         2.  Resided there at the time of the death of the
  2  decedent;
  3         3.  Has made the residence his or her primary residence
  4  for the 12 months immediately preceding the death of the
  5  decedent; and
  6         4.  Owns no other residence;
  7         (b)  The heir would be deprived of food, clothing,
  8  shelter, or medical care necessary for the maintenance of life
  9  or health;
10         (c)  The heir can document that he or she provided
11  full-time care to the recipient which delayed the recipient's
12  entry into a nursing home. The heir must be either the
13  decedent's sibling or the son or daughter of the decedent and
14  must have resided with the recipient for at least 1 year prior
15  to the recipient's death; or
16         (d)  The cost involved in the sale of the property
17  would be equal to or greater than the value of the property.
18         (9)(11)  Instances arise in Medicaid estate-recovery
19  cases where the assets include a settlement of a claim against
20  a liable third party. The agency's claim under s. 409.910 must
21  be satisfied prior to including the settlement proceeds as
22  estate assets. The remaining settlement proceeds shall be
23  included in the estate and be available to satisfy the
24  Medicaid estate-recovery claim. The Medicaid estate-recovery
25  share shall be one-half of the settlement proceeds included in
26  the estate. Nothing in this subsection is intended to limit
27  the agency's rights against other assets in the estate not
28  related to the settlement. However, in no circumstances shall
29  the agency's recovery exceed the total amount of Medicaid
30  medical assistance provided to the recipient.
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  1         (10)(12)  In instances where there are no liquid assets
  2  to satisfy the Medicaid estate-recovery claim, if there is
  3  nonexempt personal property or nonhomestead real property
  4  which is not protected homestead and the costs of sale will
  5  not exceed the proceeds, the property shall be sold to satisfy
  6  the Medicaid estate-recovery claim. Real property shall not be
  7  transferred to the agency in any instance.
  8         (11)(13)  The agency is authorized to adopt rules to
  9  implement the provisions of this section.
10         Section 3.  Section 655.936, Florida Statutes, is
11  amended to read:
12         655.936  Delivery of safe-deposit box contents or
13  property held in safekeeping to personal representative.--
14         (1)  Subject to the provisions of subsection (3), the
15  lessor shall immediately deliver to a resident personal
16  representative, upon presentation of a certified copy of his
17  or her letters of authority, all property deposited with it by
18  the decedent for safekeeping, and shall grant the resident
19  personal representative access to any safe-deposit box in the
20  decedent's name and permit him or her to remove from such box
21  any part or all of the contents thereof.
22         (2)  If a foreign personal representative of a deceased
23  lessee has been appointed by a court of any other state, a
24  lessor may, at its discretion, after 3 months from the
25  issuance to such foreign personal representative of his or her
26  letters of authority, deliver to such foreign personal
27  representative all properties deposited with it for
28  safekeeping and the contents of any safe-deposit box in the
29  name of the decedent if at such time the lessor has not
30  received written notice of the appointment of a personal
31  representative in this state, and such delivery is a valid
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  1  discharge of the lessor for all property or contents so
  2  delivered. Such foreign personal representative shall furnish
  3  the lessor with an affidavit setting forth facts showing the
  4  domicile of the deceased lessee to be other than this state
  5  and stating that there are no unpaid creditors of the deceased
  6  lessee in this state, together with a certified copy of his or
  7  her letters of authority.  A lessor making delivery pursuant
  8  to this subsection shall maintain in its files a receipt
  9  executed by such foreign personal representative which
10  itemizes in detail all property so delivered.
11         (3)  Notwithstanding the provisions of subsection (1),
12  after the death of a lessee of a safe-deposit box, the lessor
13  shall permit the initial opening of the safe-deposit box and
14  the removal of the contents of the safe-deposit box and the
15  removal of the contents of the safe-deposit box in accordance
16  with s. 733.6065.
17         (4)(3)  A lessor is not liable for damages or penalty
18  by reason of any delivery made pursuant to this section.
19         (4)  Notwithstanding other provisions of this section,
20  the initial opening of any safe-deposit box of the decedent
21  must be conducted in the presence of an employee of the
22  institution where the box is located and the personal
23  representative.  The inventory of the contents of the box also
24  must be conducted in the presence of the employee and the
25  personal representative, each of whom must verify the contents
26  of the box by signing a copy of the inventory.  The personal
27  representative shall file the safe-deposit box inventory with
28  the court within 10 days after the box is opened.
29         Section 4.  Section 731.005, Florida Statutes, is
30  amended to read:
31
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  1         731.005  Short title.--Chapters 731-735 shall be known
  2  and may be cited as the Florida Probate Code and herein
  3  referred to as "the "code" in this act.
  4         Section 5.  Section 731.011, Florida Statutes, is
  5  amended to read:
  6         731.011  Determination of substantive rights;
  7  procedures.--The code became Florida Probate Code shall become
  8  effective on January 1, 1976.  The substantive rights of all
  9  persons that have vested prior to January 1, 1976, shall be
10  determined as provided in former chapters 731-737 and 744-746
11  as they existed prior to January 1, 1976.  The procedures for
12  the enforcement of vested substantive rights that have vested
13  before January 1, 1976, shall be as provided in the Florida
14  Probate Rules this code.
15         Section 6.  Section 731.104, Florida Statutes, is
16  amended to read:
17         731.104  Verification of documents.--When verification
18  of a document is required in this code or by rule, the
19  document filed shall include an oath or affirmation as
20  provided in the Florida Probate Rules or the following
21  statement:  "Under penalties of perjury, I declare that I have
22  read the foregoing, and the facts alleged are true, to the
23  best of my knowledge and belief."  Any person who shall
24  willfully includes include a false statement in the document
25  shall be guilty of perjury and upon conviction shall be
26  punished accordingly.
27         Section 7.  Section 731.106, Florida Statutes, is
28  amended to read:
29         731.106  Assets of nondomiciliaries.--
30         (1)  For purposes of aiding the determination
31  concerning location of assets that may be relevant in cases
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  1  involving nondomiciliaries, A debt in favor of a
  2  nondomiciliary, other than one evidenced by investment or
  3  commercial paper or other instrument, is located in the county
  4  where the debtor resides or, if the debtor is not a person
  5  other than an individual, at the place where the debtor has
  6  its principal office.  Commercial paper, investment paper, and
  7  other instruments are located where the instrument is at the
  8  time of death.
  9         (2)  When a nonresident decedent, whether or not who is
10  a citizen of the United States, or a citizen or subject of a
11  foreign country provides by in her or his will that the
12  testamentary disposition of her or his tangible or intangible
13  personal property having a situs within this state, or of her
14  or his real property in this state, shall be construed and
15  regulated by the laws of this state, the validity and effect
16  of the dispositions shall be determined by Florida law. The
17  court may, and in the case of a decedent who was at the time
18  of death a resident of a foreign country the court shall,
19  direct the personal representative appointed in this state to
20  make distribution directly to those designated by the
21  decedent's will as beneficiaries of the tangible or intangible
22  property or to the persons entitled to receive the decedent's
23  personal estate under the laws of the decedent's domicile, as
24  the case may be.
25         Section 8.  Section 731.107, Florida Statutes, is
26  repealed:
27         731.107  Adversary proceedings.--The rules of civil
28  procedure shall be applied in any adversary proceeding in
29  probate.
30         Section 9.  Section 731.110, Florida Statutes, is
31  amended to read:
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  1         731.110  Caveat; proceedings.--
  2         (1)  Any person, including a creditor, who If any
  3  creditor of the estate of a decedent is apprehensive that an
  4  estate, either testate or intestate, will be administered
  5  without the creditor's knowledge, or if any person other than
  6  a creditor is apprehensive that an estate may be administered,
  7  or that a will may be admitted to probate, without the
  8  person's knowledge, he or she may file a caveat with the
  9  court.
10         (2)  A No caveat shall contain be effective unless it
11  contains the decedent's social security number, last known
12  residence address, and or date of birth, if they are known, as
13  an identification number, a statement of the interest of the
14  caveator in the estate, the name and specific residence
15  address of the caveator, and, if the caveator, other than a
16  state agency, is a nonresident of the county, the additional
17  name and specific residence address of some person residing in
18  the county, or office address of a member of The Florida Bar
19  residing in Florida, designated as the agent of the caveator,
20  upon whom service may be made.
21         Section 10.  Section 731.111, Florida Statutes, is
22  repealed:
23         731.111  Notice to creditors.--
24         (1)  When a notice to creditors is required, a notice
25  shall be published once a week for 2 consecutive weeks, two
26  publications being sufficient, in a newspaper published in the
27  county in which the estate is administered or, if there is no
28  newspaper published in the county, in a newspaper of general
29  circulation in that county.  Proof of publication shall be
30  filed. The notice shall notify all persons having claims or
31  demands against the estate to file their claims with the clerk
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  1  within the time periods set forth in s. 733.702 with respect
  2  to notice of administration, or be forever barred.  The notice
  3  shall contain the name of the decedent, the file number of the
  4  estate, the designation and address of the court in which the
  5  proceedings are pending, the name and address of the person
  6  causing the notice to be published, and the name and address
  7  of his or her attorney, and state the date of first
  8  publication.
  9         (2)  Notwithstanding the provisions of subsection (1),
10  the Department of Revenue is not barred from filing a claim
11  against the estate of a decedent for taxes due under chapter
12  199 after the expiration of the time for filing claims
13  provided in subsection (1), provided the department files its
14  claim within 30 days after the service of the inventory or
15  federal estate tax return on the department as provided in s.
16  198.13, whichever shall last occur. Additionally, in the event
17  that the information contained therein is amended or
18  supplemented, the department has the right to file its claim
19  or amend a previously filed claim within 30 days after the
20  service of such information.
21         Section 11.  Section 731.201, Florida Statutes, is
22  amended to read:
23         731.201  General definitions.--Subject to additional
24  definitions in subsequent chapters that are applicable to
25  specific chapters or parts, and unless the context otherwise
26  requires, in this code, in s. 409.9101, and in chapters 737,
27  738, and 744:
28         (1)  "Authenticated," when referring to copies of
29  documents or judicial proceedings required to be filed with
30  the court under this code, shall mean a certified copy or a
31
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  1  copy authenticated according to the Federal Rules of Civil
  2  Procedure 28 U.S.C. s. 1733 or s. 1741.
  3         (2)  "Beneficiary" means heir at law, in an intestate
  4  estate, and devisee, in a testate estate.  The term
  5  "beneficiary" does not apply to an heir at law or a devisee
  6  after that person's his or her interest in the estate has been
  7  satisfied.  In the case of a devise to an existing trust or
  8  trustee, or to a trust or trustee described by will, in the
  9  absence of a conflict of interest of the trust, the trustee is
10  a beneficiary of the estate. An owner of a beneficial interest
11  in the trust is a beneficiary of the trust and is, in the
12  absence of a conflict of interest of the trust, not a
13  beneficiary of the estate.
14         (3)  "Child" includes a person entitled to take as a
15  child under this code by intestate succession from the parent
16  whose relationship is involved, and excludes any person who is
17  only a stepchild, a foster child, a grandchild, or a more
18  remote descendant.
19         (4)  "Claim Claims" means a liability liabilities of
20  the decedent, whether arising in contract, tort, or otherwise,
21  and funeral expense expenses.  The term does not include an
22  expense expenses of administration or estate, inheritance,
23  succession, or other death taxes.
24         (5)  "Clerk" means the clerk or deputy clerk of the
25  court.
26         (6)  "Court" means the circuit court.
27         (7)  "Curator" means a person appointed by the court to
28  take charge of the estate of a decedent until letters are
29  issued.
30         (8)  "Devise," when used as a noun, means a
31  testamentary disposition of real or personal property and,
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  1  when used as a verb, means to dispose of real or personal
  2  property by will or trust.  The term includes "gift," "give,"
  3  "bequeath," "bequest," and "legacy."  A devise is subject to
  4  charges for debts, expenses, and taxes as provided in this
  5  code, or in the will, or the trust.
  6         (9)  "Devisee" means a person designated in a will or
  7  trust to receive a devise.  In the case of a devise to an
  8  existing trust or trustee, or to a trustee of a trust
  9  described by will, the trust or trustee is the devisee. The
10  beneficiaries of the trust are not devisees.
11         (10)  "Distributee" means a person who has received
12  estate property from a personal representative or other
13  fiduciary other than as a creditor or purchaser. A
14  testamentary trustee is a distributee only to the extent of
15  distributed assets or increments to them remaining in the
16  trustee's his or her hands.  A beneficiary of a testamentary
17  trust to whom the trustee has distributed property received
18  from a personal representative is a distributee.  For purposes
19  of this provision, "testamentary trustee" includes a trustee
20  to whom assets are transferred by will, to the extent of the
21  devised assets.
22         (11)  "Domicile" means shall be a person's usual place
23  of dwelling and shall be synonymous with "residence."
24         (12)  "Estate" means the property of a decedent that is
25  the subject of administration.
26         (13)  "Exempt property" means the property of a
27  decedent's estate which is described in s. 732.402.
28         (14)  "File" means to file with the court or clerk.
29         (15)  "Foreign personal representative" means a
30  personal representative of another state or a foreign country.
31
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  1         (16)  "Formal notice" means formal notice under the
  2  Florida Probate Rules s. 731.301(1).
  3         (17)  "Grantor" means one who creates or adds to a
  4  trust and includes "settlor" or "trustor" and a testator who
  5  creates or adds to a trust.
  6         (18)  "Heirs" or "heirs at law" means those persons,
  7  including the surviving spouse, who are entitled under the
  8  statutes of intestate succession to the property of a
  9  decedent.
10         (19)  "Incompetent" means a minor or a person
11  adjudicated incompetent.
12         (20)  "Informal notice" or "notice" means informal
13  notice under the Florida Probate Rules s. 731.301(2).
14         (21)  "Interested person" means any person who may
15  reasonably be expected to be affected by the outcome of the
16  particular proceeding involved.  In any proceeding affecting
17  the estate or the rights of a beneficiary in the estate, the
18  personal representative of the estate shall be deemed to be an
19  interested person.  In any proceeding affecting the expenses
20  of the administration and obligations of a decedent's estate
21  of the estate, or any claims described in s. 733.702(1), the
22  trustee of a trust described in s. 733.707(3) is an interested
23  person in the administration of the grantor's estate.  The
24  term does not include a beneficiary an heir at law or a
25  devisee who has received complete his or her distribution.
26  The meaning, as it relates to particular persons, may vary
27  from time to time and must be determined according to the
28  particular purpose of, and matter involved in, any
29  proceedings.
30         (22)  "Letters" means authority granted by the court to
31  the personal representative to act on behalf of the estate of
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  1  the decedent and refers to what has been known as letters
  2  testamentary and letters of administration. All letters shall
  3  be designated "letters of administration."
  4         (23)  "Other state" means any state of the United
  5  States other than Florida and includes the District of
  6  Columbia, the Commonwealth of Puerto Rico, and any territory
  7  or possession subject to the legislative authority of the
  8  United States.
  9         (24)  "Parent" excludes any person who is only a
10  stepparent, foster parent, or grandparent.
11         (25)  "Personal representative" means the fiduciary
12  appointed by the court to administer the estate and refers to
13  what has been known as an administrator, administrator cum
14  testamento annexo, administrator de bonis non, ancillary
15  administrator, ancillary executor, or executor.
16         (26)  "Petition" means a written request to the court
17  for an order.
18         (27)  "Probate of will" means all steps necessary to
19  establish the validity of a will and to admit a will to
20  probate.
21         (28)  "Property" means both real and personal property
22  or any interest in it and anything that may be the subject of
23  ownership.
24         (29)  "Protected homestead" means the property
25  described in s. 4(a)(1), Art. X of the State Constitution
26  which at the death of the owner the exemption inures to the
27  owner's surviving spouse or heirs under s. 4(b), Art. X of the
28  State Constitution. For purposes of the code, real property
29  owned as tenants by the entirety is not protected homestead.
30         (30)(29)  "Residence" means a person's usual place of
31  dwelling. and is synonymous with "domicile."
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  1         (31)(30)  "Residuary devise" means a devise of the
  2  assets of the estate which remain after the provision for any
  3  devise which is to be satisfied by reference to a specific
  4  property or type of property, fund, sum, or statutory amount.
  5  If the will contains no devise which is to be satisfied by
  6  reference to a specific property or type of property, fund,
  7  sum, or statutory amount, "residuary devise" or "residue"
  8  means a devise of all assets remaining after satisfying the
  9  obligations of the estate.
10         (32)(31)  "Security" means a security as defined in s.
11  517.021.
12         (33)(32)  "Security interest" means a security interest
13  as defined in s. 671.201.
14         (34)(33)  "Trust" means an express trust, private or
15  charitable, with additions to it, wherever and however
16  created.  It also includes a trust created or determined by a
17  judgment or decree under which the trust is to be administered
18  in the manner of an express trust. "Trust" excludes other
19  constructive trusts, and it excludes resulting trusts;
20  conservatorships; personal representatives; custodial
21  arrangements pursuant to the Florida Uniform Transfers Gifts
22  to Minors Act; business trusts providing for certificates to
23  be issued to beneficiaries; common trust funds; land trusts
24  under s. 689.05; trusts created by the form of the account or
25  by the deposit agreement at a financial institution; voting
26  trusts; security arrangements; liquidation trusts; trusts for
27  the primary purpose of paying debts, dividends, interest,
28  salaries, wages, profits, pensions, or employee benefits of
29  any kind; and any arrangement under which a person is nominee
30  or escrowee for another.
31
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  1         (35)(34)  "Trustee" includes an original, additional,
  2  surviving, or successor trustee, whether or not appointed or
  3  confirmed by court.
  4         (36)(35)  "Will" means an instrument, including a
  5  codicil, executed by a person in the manner prescribed by this
  6  code, which disposes of the person's property on or after his
  7  or her death and includes an instrument which merely appoints
  8  a personal representative or revokes or revises another will.
  9         Section 12.  Section 731.301, Florida Statutes, is
10  amended to read:
11         731.301  Notice; method and time; proof.--
12         (1)  FORMAL NOTICE.--
13         (a)  When formal notice to an interested person of a
14  petition or other proceeding is required, the notice shall be
15  given to the petitioner shall serve a copy of the petition to
16  any interested person or that person's her or his attorney as
17  provided in the Florida Probate Rules, if the interested
18  person has appeared by attorney or requested that notice be
19  sent to her or his attorney.  The petition shall be served:
20         1.  By any form of mail or by any commercial delivery
21  service approved by the chief judge of each judicial circuit,
22  requiring a signed receipt, as follows:
23         a.  On the interested person's attorney of record, if
24  any, or to the post-office address given in her or his demand
25  for notice, if any;
26         b.  On an individual, other than an incompetent, by
27  mailing a copy to the individual's dwelling house or usual
28  place of abode or to the place where she or he regularly
29  conducts her or his business or profession;
30         c.  On an incompetent person, by mailing a copy to the
31  incompetent, to the person having custody of the incompetent,
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  1  and to any legal guardian of the incompetent, at their
  2  respective dwelling houses, usual places of abode, or regular
  3  places of business or profession;
  4         d.  On a corporation, by mailing a copy to the
  5  corporation at its last known address; or
  6         2.  As provided in chapter 48; or
  7         3.  In the circumstances provided in chapter 49, in the
  8  manner provided therein.
  9         (b)  If there is no answer served on the petitioner
10  within 20 days from the service of the petition, the petition
11  shall be considered ex parte. If an answer is served, a
12  hearing shall be set and reasonable notice given.
13         (c)  If service is made under subparagraph (a)2. or
14  subparagraph (a)3., proof shall be made as provided in chapter
15  48 or chapter 49.  If service is made by mail under
16  subparagraph (a)1., proof shall be by a verified statement of
17  the person mailing service who shall attach the signed receipt
18  or other evidence satisfactory to the court that delivery was
19  made to, or refused by, the addressee or the addressee's
20  agent.
21         (2)(d)  Formal notice shall be sufficient to acquire
22  jurisdiction over the person receiving formal notice to the
23  extent of the person's interest in the estate.
24         (2)  INFORMAL NOTICE.--
25         (a)  When informal notice of a petition or other
26  proceeding is required or permitted, it shall be served on the
27  person or the person's attorney as provided in the Florida
28  Rules of Civil Procedure relating to service of pleadings.
29         (b)  Proof of service shall be made by filing an
30  attorney's certificate of service or, if filed by a person who
31  is not a member of The Florida Bar, by a verified statement.
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  1         (3)  EFFECT OF NOTICE.--Persons given notice of any
  2  proceeding petition shall be bound by all orders entered in
  3  that proceeding on the petition.
  4         (4)  INFORMAL NOTICE REQUIRED.--Unless otherwise
  5  specifically provided, informal notice of every petition
  6  affecting property rights or interests must be given to
  7  interested persons.
  8         Section 13.  Section 731.303, Florida Statutes, is
  9  amended to read:
10         731.303  Representation.--In proceedings involving
11  estates of decedents or trusts, the following apply:
12         (1)  Interests to be affected shall be described in
13  pleadings that give information by name or class, by reference
14  to the instrument creating the interests, or in another
15  appropriate manner.
16         (1)(2)  Persons are bound by orders binding others in
17  the following cases:
18         (a)  Orders binding the sole holder or all coholders of
19  a power of revocation or a general, special, or limited power
20  of appointment, including one in the form of a power of
21  amendment or revocation to the extent that the power has not
22  become unexercisable in fact, bind all persons to the extent
23  that their interests, as persons who may take by virtue of the
24  exercise or nonexercise of the power, are subject to the
25  power.
26         (b)  To the extent there is no conflict of interest
27  between them or among the persons represented:
28         1.  Orders binding a guardian of the property bind the
29  ward whose estate he or she controls.
30         2.  Orders binding a trustee bind beneficiaries of the
31  trust in proceedings to probate a will, in establishing or
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  1  adding to a trust, in reviewing the acts or accounts of a
  2  prior fiduciary, and in proceedings involving creditors or
  3  other third parties.
  4         3.  Orders binding a personal representative bind
  5  persons interested in the undistributed assets of a decedent's
  6  estate, in actions or proceedings by or against the estate.
  7         (c)  An unborn or unascertained person, or a minor or
  8  any other person under a legal disability, who is not
  9  otherwise represented is bound by an order to the extent that
10  person's his or her interest is represented by another party
11  having the same or greater quality of interest in the
12  proceeding.
13         (2)(3)  Orders binding a guardian of the person shall
14  not bind the ward.
15         (3)(4)  Notice is required as follows:
16         (a)  Notice as prescribed by the Florida Probate Rules
17  s. 731.301 shall be given to every interested person, or to
18  one who can bind the interested person as described in
19  paragraph (1)(2)(a) or paragraph (1)(2)(b). Notice may be
20  given both to the interested person and to another who can
21  bind him or her.
22         (b)  Notice is given to unborn or unascertained persons
23  who are not represented pursuant to paragraph (1)(2)(a) or
24  paragraph (1)(2)(b) by giving notice to all known persons
25  whose interests in the proceedings are the same as, or of a
26  greater quality than, those of the unborn or unascertained
27  persons.
28         (4)(5)  If the court determines that representation of
29  the interest would otherwise be inadequate, the court may, at
30  any time, appoint a guardian ad litem to represent the
31  interests of an incapacitated incompetent person, an unborn or
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  1  unascertained person, a minor or any other person otherwise
  2  under a legal disability, or a person whose identity or
  3  address is unknown.  If not precluded by conflict of interest,
  4  a guardian ad litem may be appointed to represent several
  5  persons or interests.
  6         (5)(6)  Agreements, waivers, consents, approvals,
  7  accounts, or other statements that fully disclose the matters
  8  that which are the subject of the such accounts or statements
  9  and that bind the sole holder or all coholders of a general,
10  special, or limited power of appointment, including a power of
11  amendment or revocation to the extent that the power has not
12  become unexercisable in fact, bind all persons to the extent
13  that their interests, as persons who may take by virtue of the
14  exercise or nonexercise of the power, are subject to the
15  power.
16         Section 14.  Subsection (2) of section 732.101, Florida
17  Statutes, is amended to read:
18         732.101  Intestate estate.--
19         (2)  The decedent's death is the event that vests the
20  heirs' right to the decedent's intestate property.
21         Section 15.  Section 732.102, Florida Statutes, is
22  amended to read:
23         732.102  Spouse's share of intestate estate Share of
24  spouse.--
25         (1)  The intestate share of the surviving spouse is:
26         (1)(a)  If there is no surviving lineal descendant of
27  the decedent, the entire intestate estate.
28         (2)(b)  If there are surviving lineal descendants of
29  the decedent, all of whom are also lineal descendants of the
30  surviving spouse also, the first $60,000 $20,000 of the
31  intestate estate, plus one-half of the balance of the
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  1  intestate estate. Property allocated hereunder to the
  2  surviving spouse to satisfy the $60,000 $20,000 shall be
  3  valued at the fair market value on the date of distribution
  4  the decedent's death.
  5         (3)(c)  If there are surviving lineal descendants, one
  6  or more of whom are not lineal descendants of the surviving
  7  spouse, one-half of the intestate estate.
  8         (2)  The court shall allot the property to which the
  9  spouse is entitled, treating all beneficiaries equitably.
10         Section 16.  Paragraph (c) of subsection (4) and
11  subsection (5) of section 732.103, Florida Statutes, are
12  amended to read:
13         732.103  Share of other heirs.--The part of the
14  intestate estate not passing to the surviving spouse under s.
15  732.102, or the entire intestate estate if there is no
16  surviving spouse, descends as follows:
17         (4)  If there is none of the foregoing, the estate
18  shall be divided, one-half of which shall go to the decedent's
19  paternal, and the other half to the decedent's maternal,
20  kindred in the following order:
21         (c)  If there is either no paternal kindred or if there
22  is no maternal kindred, the estate shall go to such of the
23  other kindred who as shall survive, in the order stated above
24  aforesaid.
25         (5)  If there is no kindred of either part, the whole
26  of the such property shall go to the kindred of the last
27  deceased spouse of the decedent as if the deceased spouse had
28  survived the decedent and then died intestate entitled to the
29  estate.
30         Section 17.  Section 732.107, Florida Statutes, is
31  amended to read:
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  1         732.107  Escheat.--
  2         (1)  When a person dies leaving an estate dies without
  3  being survived by any person entitled to a part of it, that
  4  part the property shall escheat to the state.
  5         (2)(a)  In this event, or when doubt exists about the
  6  existence of any person entitled to the estate, the personal
  7  representative shall institute a proceeding for the
  8  determination of beneficiaries, as provided in this code,
  9  within 1 year after letters have been issued to him or her,
10  and notice shall be served on the Department of Legal Affairs.
11  If the personal representative fails to institute the
12  proceeding within the time fixed, it may be instituted by the
13  Department of Legal Affairs.
14         (b)  On or before January 15 of each year, each court
15  shall furnish to the department a list of all estates being
16  administered in which no person appears to be entitled to the
17  property and the personal representative has not instituted a
18  proceeding for the determination of beneficiaries.
19         (3)  If the court determines that there is no person
20  entitled to the estate and that the estate escheats, the
21  Property that escheats shall be sold as provided in the
22  Florida Probate Rules and the proceeds paid to the Treasurer
23  of the state and deposited by him or her in the State School
24  Fund within a reasonable time to be fixed by the court.
25         (3)(4)  At any time within 10 years after the payment
26  to the Treasurer granting of letters, a person claiming to be
27  entitled to the proceeds estate of the decedent may petition
28  to reopen the administration to and assert entitlement his or
29  her rights to the proceeds escheated property. If the claimant
30  is entitled to any of the estate of the decedent, the court
31  shall fix the amount to which he or she is entitled, and it
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  1  shall be repaid to him or her with interest at the legal rate
  2  by the officials charged with the disbursement of state school
  3  funds.  If no claim is timely asserted within the time fixed,
  4  the title of the state's rights to state to the property and
  5  the proceeds shall become absolute.
  6         (4)(5)  The Department of Legal Affairs shall represent
  7  the state in all proceedings concerning escheated estates.
  8         (5)(6)(a)  If a person entitled to the proceeds funds
  9  assigns the his or her rights to receive payment to an
10  attorney, Florida-certified public accountant, or private
11  investigative agency which is duly licensed to do business in
12  this state pursuant to a written agreement with that such
13  person, the Department of Banking and Finance is authorized to
14  make distribution in accordance with the such assignment.
15         (b)  Payments made to an attorney, Florida-certified
16  public accountant, or private investigative agency shall be
17  promptly deposited into a trust or escrow account which is
18  regularly maintained by the attorney, Florida-certified public
19  accountant, or private investigative agency in a financial
20  institution authorized to accept such deposits and located in
21  this state.
22         (c)  Distribution by the attorney, Florida-certified
23  public accountant, or private investigative agency to the
24  person entitled to the proceeds funds shall be made within 10
25  days following final credit of the deposit into the trust or
26  escrow account at the financial institution, unless a party to
27  the agreement protests the in writing such distribution in
28  writing before it is made.
29         (d)  The department shall not be civilly or criminally
30  liable for any proceeds funds distributed pursuant to this
31  subsection, provided such distribution is made in good faith.
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  1         (7)  Except as herein provided, escheated estates shall
  2  be administered as other estates.
  3         Section 18.  Section 732.1101, Florida Statutes, is
  4  amended to read:
  5         732.1101  Aliens.--Aliens shall have the same rights of
  6  inheritance as citizens No person is disqualified to take as
  7  an heir because he or she, or a person through whom he or she
  8  claims, is, or has been, an alien.
  9         Section 19.  Subsection (8) of section 732.2025,
10  Florida Statutes, is amended to read:
11         732.2025  Definitions.--As used in ss.
12  732.2025-732.2155, the term:
13         (8)  "Qualifying special needs trust" or "supplemental
14  needs trust" means a trust established for a an ill or
15  disabled surviving spouse with court approval before or after
16  a decedent's death for such incapacitated surviving spouse,
17  if, commencing on the decedent's death:
18         (a)  The income and principal are distributable to or
19  for the benefit of the spouse for life in the discretion of
20  one or more trustees less than half of whom are ineligible
21  family trustees.  For purposes of this paragraph, ineligible
22  family trustees include the decedent's grandparents and any
23  descendants of the decedent's grandparents who are not also
24  descendants of the surviving spouse; and
25         (b)  During the spouse's life, no person other than the
26  spouse has the power to distribute income or principal to
27  anyone other than the spouse.
28
29  (c)  The requirement for court approval and the limitation on
30  ineligible family trustees shall not apply if the aggregate
31  value of all the trust property as of the applicable valuation
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  1  date in all a qualifying special needs trusts for the spouse
  2  trust is less than $100,000. For purposes of this subsection,
  3  value is determined on the "applicable valuation date" as
  4  defined in s. 732.2095(1)(a).
  5         Section 20.  Subsection (2) and paragraph (a) of
  6  subsection (5) of section 732.2035, Florida Statutes, are
  7  amended to read:
  8         732.2035  Property entering into elective
  9  estate.--Except as provided in s. 732.2045, the elective
10  estate consists of the sum of the values as determined under
11  s. 732.2055 of the following property interests:
12         (2)  The decedent's ownership interest in accounts or
13  securities registered in "Pay On Death," "Transfer On Death,"
14  "In Trust For," or coownership with right of survivorship
15  form.  For this purpose, "decedent's ownership interest"
16  means, in the case of accounts or securities held in tenancy
17  by the entirety, one-half of the value of the account or
18  security, and in all other cases, that portion of the accounts
19  or securities which the decedent had, immediately before
20  death, the right to withdraw or use without the duty to
21  account to any person.
22         (5)(a)  That portion of property, other than property
23  described in subsection (3), subsection (4), or subsection
24  (7), transferred by the decedent to the extent that at the
25  time of the decedent's death:
26         1.  The decedent possessed the right to, or in fact
27  enjoyed the possession or use of, the income or principal of
28  the property; or
29         2.  The principal of the property could, in the
30  discretion of any person other than the spouse of the
31
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  1  decedent, be distributed or appointed to or for the benefit of
  2  the decedent.
  3
  4  In the application of this subsection, a right to payments
  5  under a commercial or private from an annuity, an annuity
  6  trust, a unitrust, or under a similar contractual arrangement
  7  shall be treated as a right to that portion of the income of
  8  the property necessary to equal the annuity, unitrust, or
  9  other contractual payment.
10         Section 21.  Subsection (1) of section 732.2045,
11  Florida Statutes, is amended to read:
12         732.2045  Exclusions and overlapping application.--
13         (1)  EXCLUSIONS.--Section 732.2035 does not apply to:
14         (a)  Except as provided in s. 732.2155(4), any transfer
15  of property by the decedent to the extent the transfer is
16  irrevocable before the effective date of this subsection or
17  after that date but before the date of the decedent's marriage
18  to the surviving spouse.
19         (b)  Any transfer of property by the decedent to the
20  extent the decedent received adequate consideration in money
21  or money's worth for the transfer.
22         (c)  Any transfer of property by the decedent made with
23  the written consent of the decedent's spouse. For this
24  purpose, spousal consent to split-gift treatment under the
25  United States gift tax laws does not constitute written
26  consent to the transfer by the decedent.
27         (d)  The proceeds of any policy of insurance on the
28  decedent's life in excess of the net cash surrender value of
29  the policy whether payable to the decedent's estate, a trust,
30  or in any other manner.
31
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  1         (e)  Any policy of insurance on the decedent's life
  2  maintained pursuant to a court order.
  3         (f)  The decedent's one-half of the property to which
  4  ss. 732.216-732.228 apply and real property that is community
  5  property under the laws of the jurisdiction where it is
  6  located.
  7         (g)  Property held in a qualifying special needs trust
  8  on the date of the decedent's death.
  9         (h)  Property included in the gross estate of the
10  decedent for federal estate tax purposes solely because the
11  decedent possessed a general power of appointment.
12         (i)  Property which constitutes the protected homestead
13  of the decedent whether held by the decedent or by a trust at
14  the decedent's death.
15         Section 22.  Paragraph (a) of subsection (5) of section
16  732.2055, Florida Statutes, is amended to read:
17         732.2055  Valuation of the elective estate.--For
18  purposes of s. 732.2035, "value" means:
19         (5)  In the case of all other property, the fair market
20  value of the property on the date of the decedent's death,
21  computed after deducting from the total value of the property:
22         (a)  All claims, other than claims for funeral
23  expenses, paid or payable from the elective estate; and
24         Section 23.  Subsection (2) of section 732.2075,
25  Florida Statutes, is amended to read:
26         732.2075  Sources from which elective share payable;
27  abatement.--
28         (2)  If, after the application of subsection (1), the
29  elective share is not fully satisfied, the unsatisfied balance
30  shall be apportioned among the direct recipients of the
31  remaining elective estate in the following order of priority:
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  1         (a)  Class 1.--The decedent's probate estate and
  2  revocable trusts.
  3         (b)  Class 2.--Recipients of property interests, other
  4  than protected charitable interests, included in the elective
  5  estate under s. 732.2035(2), (3), or (6) and, to the extent
  6  the decedent had at the time of death the power to designate
  7  the recipient of the property, property interests, other than
  8  protected charitable interests, included under s. 732.2035(5)
  9  and (7).
10         (c)  Class 3.--Recipients of all other property
11  interests, other than protected charitable interests, included
12  in the elective estate except interests for which a charitable
13  deduction with respect to the transfer of the property was
14  allowed or allowable to the decedent or the decedent's spouse
15  under the United States gift tax laws.
16         (d)  Class 4.--Recipients of protected charitable lead
17  interests, provided that contribution shall not be enforceable
18  against the recipients of any such interest until after the
19  expiration of all charitable interests in the property for
20  which a deduction was allowed or allowable to the decedent or
21  the decedent's spouse under the United States gift tax laws.
22
23  For purposes of this subsection, a protected charitable
24  interest is any interest for which a charitable deduction with
25  respect to the transfer of the property was allowed or
26  allowable to the decedent or the decedent's spouse under the
27  United States gift tax laws.  A protected charitable lead
28  interest is a protected charitable interest where one or more
29  deductible interests in charity precede some other
30  nondeductible interest or interests in the property.
31
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  1         Section 24.  Paragraph (a) of subsection (1) and
  2  paragraph (a) of subsection (3) of section 732.2085, Florida
  3  Statutes, are amended to read:
  4         732.2085  Liability of direct recipients and
  5  beneficiaries.--
  6         (1)  Only direct recipients of property included in the
  7  elective estate and the beneficiaries of the decedent's
  8  probate estate or of any trust that is a direct recipient, are
  9  liable to contribute toward satisfaction of the elective
10  share.
11         (a)  Within each of the classes described in s.
12  732.2075(2)(b), and (c), and (d), each direct recipient is
13  liable in an amount equal to the value, as determined under s.
14  732.2055, of the proportional part of the liability for all
15  members of the class.
16         (3)  If a person pays the value of the property on the
17  date of a sale or exchange or contributes all of the property
18  received, as provided in paragraph (2)(b):
19         (a)  No further contribution toward satisfaction of the
20  elective share shall be required with respect to that such
21  property.
22         Section 25.  Paragraph (a) of subsection (1) and
23  paragraph (d) of subsection (2) of section 732.2095, Florida
24  Statutes, are amended to read:
25         732.2095  Valuation of property used to satisfy
26  elective share.--
27         (1)  DEFINITIONS.--As used in this section, the term:
28         (a)  "Applicable valuation date" means:
29         1.  In the case of transfers in satisfaction of the
30  elective share, the date of the decedent's death.
31
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  1         2.  In the case of property held in a qualifying
  2  special needs trust on the date of the decedent's death, the
  3  date of the decedent's death.
  4         3.  In the case of other property irrevocably
  5  transferred to or for the benefit of the surviving spouse
  6  during the decedent's life, the date of the transfer.
  7         4.  In the case of property distributed to the
  8  surviving spouse by the personal representative, the date of
  9  distribution.
10         5.  Except as provided in subparagraphs 1., 2., and 3.,
11  in the case of property passing in trust for the surviving
12  spouse, the date or dates the trust is funded in satisfaction
13  of the elective share.
14         6.  In the case of property described in s. 732.2035(2)
15  or (3) or (4), the date of the decedent's death.
16         7.  In the case of proceeds of any policy of insurance
17  payable to the surviving spouse, the date of the decedent's
18  death.
19         8.  In the case of amounts payable to the surviving
20  spouse under any plan or arrangement described in s.
21  732.2035(7), the date of the decedent's death.
22         9.  In all other cases, the date of the decedent's
23  death or the date the surviving spouse first comes into
24  possession of the property, whichever occurs later.
25         (2)  Except as provided in this subsection, the value
26  of property for purposes of s. 732.2075 is the fair market
27  value of the property on the applicable valuation date.
28         (d)  If the surviving spouse has an interest in a trust
29  that does not meet the requirements of either an elective
30  share trust or a qualifying special needs trust, the value of
31  the spouse's interest is the transfer tax value of the
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  1  interest on the applicable valuation date; however, the
  2  aggregate value of all of the spouse's interests in the trust
  3  shall not exceed one-half of the value of the trust principal
  4  on the applicable valuation date.
  5         Section 26.  Section 732.2105, Florida Statutes, is
  6  amended to read:
  7         732.2105  Effect of election on other interests.--
  8         (1)  The elective share shall be in addition to
  9  homestead, exempt property, and allowances as provided in part
10  IV.
11         (2)  If an election is filed, the balance of the
12  elective estate, after the application of s. 732.2145(1),
13  shall be administered as though the surviving spouse had
14  predeceased the decedent.
15         Section 27.  Subsection (2) of section 732.2125,
16  Florida Statutes, is amended to read:
17         732.2125  Right of election; by whom exercisable.--The
18  right of election may be exercised:
19         (2)  With approval of the court having jurisdiction of
20  the probate proceeding by an attorney in fact or a guardian of
21  the property of the surviving spouse, with approval of the
22  court having jurisdiction of the probate proceeding. The court
23  shall determine the election as the best interests of the
24  surviving spouse, during the spouse's probable lifetime,
25  require.
26         Section 28.  Section 732.2135, Florida Statutes, is
27  amended to read:
28         732.2135  Time of election; extensions; withdrawal.--
29         (1)  Except as provided in subsection (2), the election
30  must be filed within the earlier of 6 months of the date of
31  service of a copy of the first publication of notice of
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  1  administration on the surviving spouse, or an attorney in fact
  2  or guardian of the property of the surviving spouse, or 2
  3  years after the date of the decedent's death.
  4         (2)  Within the period provided in subsection (1), the
  5  surviving spouse or an attorney in fact or guardian of the
  6  property of the surviving spouse may petition the court for an
  7  extension of time for making an election. After notice and
  8  hearing, the court For good cause shown the court may extend
  9  the time for election. If the court grants the petition for an
10  extension, the election must be filed within the time allowed
11  by the extension.
12         (3)  The surviving spouse or an attorney in fact,
13  guardian of the property, or personal representative of the
14  surviving spouse may withdraw an election at any time within 8
15  months of the decedent's death and before the court's order of
16  contribution. If an election is withdrawn, the court may
17  assess attorney's fees and costs against the surviving spouse
18  or the surviving spouse's estate.
19         (4)  A petition for an extension of the time for making
20  the election or for approval to make the election shall toll
21  the time for making the election.
22         Section 29.  Subsections (1) and (4) of section
23  732.2145, Florida Statutes, are amended to read:
24         732.2145  Order of contribution; personal
25  representative's duty to collect contribution.--
26         (1)  The court shall determine the elective share and
27  shall order contribution. All Contributions shall are to bear
28  interest at the statutory rate provided in s. 55.03(1)
29  beginning 90 days after from the date of the order of
30  contribution. The order of contribution is prima facie correct
31  in proceedings in any court or jurisdiction.
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  1         (4)  Nothing in this section limits the independent
  2  right of the surviving spouse to collect the elective share as
  3  provided in the order of contribution, and that right is
  4  hereby conferred. If the surviving spouse brings an action to
  5  enforce the an order of contribution, the judgment shall
  6  include the surviving spouse's costs and reasonable attorney's
  7  fees.
  8         Section 30.  Subsection (4) of section 732.2155,
  9  Florida Statutes, is amended to read:
10         732.2155  Effective date; effect of prior waivers;
11  transition rules.--
12         (4)  Notwithstanding anything in s. 732.2045(1)(a) to
13  the contrary, any trust created by the decedent before the
14  effective date of ss. 732.201-732.2145 this section that meets
15  the requirements of an elective share trust is treated as if
16  the decedent created the trust after the effective date of
17  these sections this subsection and in satisfaction of the
18  elective share.
19         Section 31.  Subsection (2) of section 732.218, Florida
20  Statutes, is amended to read:
21         732.218  Rebuttable presumptions.--In determining
22  whether ss. 732.216-732.228 apply to specific property, the
23  following rebuttable presumptions apply:
24         (2)  Real property located in this state, other than
25  homestead and real property held as tenants by the entirety
26  and homestead, and personal property wherever located acquired
27  by a married person while domiciled in a jurisdiction under
28  whose laws property could not then be acquired as community
29  property and title to which was taken in a form which created
30  rights of survivorship are presumed not to be property to
31  which these sections do not apply.
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  1         Section 32.  Section 732.219, Florida Statutes, is
  2  amended to read:
  3         732.219  Disposition upon death.--Upon the death of a
  4  married person, one-half of the property to which ss.
  5  732.216-732.228 apply is the property of the surviving spouse
  6  and is not subject to testamentary disposition by the decedent
  7  or distribution under the laws of succession of this state.
  8  One-half of that property is the property of the decedent and
  9  is subject to testamentary disposition or distribution under
10  the laws of succession of this state.  The decedent's one-half
11  of that the property is not in the elected estate subject to
12  the surviving spouse's right to elect against the will.
13         Section 33.  Section 732.221, Florida Statutes, is
14  amended to read:
15         732.221  Perfection of title of personal representative
16  or beneficiary, heir, or devisee.--If the title to any
17  property to which ss. 732.216-732.228 apply is held by the
18  surviving spouse at the time of the decedent's death, the
19  personal representative or a beneficiary an heir or devisee of
20  the decedent may institute an action to perfect title to the
21  property.  The personal representative has no fiduciary duty
22  to discover whether any property held by the surviving spouse
23  is property to which ss. 732.216-732.228 these sections apply,
24  unless a written demand is made by a beneficiary an heir,
25  devisee, or creditor of the decedent within 3 6 months after
26  service of a copy the first publication of the notice of
27  administration on the beneficiary or by a creditor within 3
28  months after the first publication of the notice to creditors.
29         Section 34.  Subsections (1) and (2) of section
30  732.222, Florida Statutes, are amended to read:
31         732.222  Purchaser for value or lender.--
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  1         (1)  If a surviving spouse has apparent title to
  2  property to which ss. 732.216-732.228 apply, a purchaser for
  3  value or a lender taking a security interest in the property
  4  takes the his or her interest in the property free of any
  5  rights of the personal representative or a beneficiary an heir
  6  or devisee of the decedent.
  7         (2)  If a personal representative or a beneficiary an
  8  heir or devisee of the decedent has apparent title to property
  9  to which ss. 732.216-732.228 apply, a purchaser for value or a
10  lender taking a security interest in the property takes that
11  his or her interest in the property free of any rights of the
12  surviving spouse.
13         Section 35.  Section 732.223, Florida Statutes, is
14  amended to read:
15         732.223  Perfection of title of surviving spouse.--If
16  the title to any property to which ss. 732.216-732.228 apply
17  was held by the decedent at the time of the decedent's his or
18  her death, title of the surviving spouse may be perfected by
19  an order of the probate court or by execution of an instrument
20  by the personal representative or the beneficiaries heirs or
21  devisees of the decedent with the approval of the probate
22  court.  The probate court in which the decedent's estate is
23  being administered has no duty to discover whether property
24  held by the decedent is property to which ss. 732.216-732.228
25  apply.  The personal representative has no duty to discover
26  whether property held by the decedent is property to which ss.
27  732.216-732.228 apply unless a written demand is made by the
28  surviving spouse or the spouse's successor in interest within
29  3 6 months after service of a copy of the first publication of
30  the notice of administration on the surviving spouse or the
31  spouse's successor in interest.
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  1         Section 36.  Section 732.302, Florida Statutes, is
  2  amended to read:
  3         732.302  Pretermitted children.--When a testator omits
  4  to provide by in his or her will for any of his or her
  5  children born or adopted after making the will and the child
  6  has not received a part of the testator's property equivalent
  7  to a child's part by way of advancement, the child shall
  8  receive a share of the estate equal in value to that which the
  9  child he or she would have received if the testator had died
10  intestate, unless:
11         (1)  It appears from the will that the omission was
12  intentional; or
13         (2)  The testator had one or more children when the
14  will was executed and devised substantially all the estate to
15  the other parent of the pretermitted child and that other
16  parent survived the testator and is entitled to take under the
17  will.
18
19  The share of the estate that is assigned to the pretermitted
20  child shall be obtained in accordance with s. 733.805.
21         Section 37.  Section 732.401, Florida Statutes, is
22  amended to read:
23         732.401  Descent of homestead.--
24         (1)  If not devised as permitted by law and the Florida
25  Constitution, the homestead shall descend in the same manner
26  as other intestate property; but if the decedent is survived
27  by a spouse and lineal descendants, the surviving spouse shall
28  take a life estate in the homestead, with a vested remainder
29  to the lineal descendants in being at the time of the
30  decedent's death per stirpes.
31
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  1         (2)  Subsection (1) shall not apply to If the decedent
  2  was domiciled in Florida and resided on real property that the
  3  decedent and the surviving spouse owned as tenants by the
  4  entirety, the real property shall not be homestead property.
  5         Section 38.  Subsection (2) of section 732.4015,
  6  Florida Statutes, is amended to read:
  7         732.4015  Devise of homestead.--
  8         (2)  For the purposes of subsection (1), the term:
  9         (a)  "Owner" includes the grantor settlor of a trust
10  described in s. 733.707(3) that is evidenced by a written
11  instrument which is in existence at the time of the grantor's
12  settlor's death as if the interest held in trust was owned by
13  the grantor pursuant to which the settlor retained the right
14  either alone or in conjunction with any other person to amend
15  or revoke the trust at any time before his or her death.
16         (b)  "Devise" includes a disposition by trust of that
17  portion of the trust estate which, if titled in the name of
18  the grantor settlor of the trust, would be the grantor's
19  settlor's homestead.
20         Section 39.  Subsections (4) and (6) of section
21  732.402, Florida Statutes, are amended, and subsection (7) is
22  added to said section, to read:
23         732.402  Exempt property.--
24         (4)  Exempt property shall be in addition to protected
25  homestead, statutory entitlements, and any property passing
26  under to the surviving spouse or heirs of the decedent under
27  s. 4, Art. X of the State Constitution or the decedent's will,
28  or by intestate succession, elective share, or family
29  allowance.
30         (6)  Persons entitled to exempt property shall be
31  deemed to have waived their rights under this section unless a
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  1  petition for determination of exempt property is filed by or
  2  on behalf of the persons entitled to the exempt property
  3  within 4 months after the date of service the first
  4  publication of the notice of administration or within 40 days
  5  from the date of termination of any proceeding involving the
  6  construction, admission to probate, or validity of the will or
  7  involving any other matter affecting any part of the estate
  8  subject to this section.
  9         (7)  Property determined as exempt under this section
10  shall be excluded from the value of the estate before
11  residuary, intestate, or pretermitted or elective shares are
12  determined.
13         Section 40.  Section 732.403, Florida Statutes, is
14  amended to read:
15         732.403  Family allowance.--In addition to protected
16  homestead and statutory entitlements exempt property, if the
17  decedent was domiciled in Florida at the time of death, the
18  surviving spouse and the decedent's lineal heirs whom the
19  decedent was supporting or was obligated to support or who
20  were in fact being supported by him or her are entitled to a
21  reasonable allowance in money out of the estate for their
22  maintenance during administration.  After notice and hearing,
23  The court may order this allowance to be paid as a lump sum or
24  in periodic installments.  The allowance shall not exceed a
25  total of $18,000 $6,000.  It shall be paid to the surviving
26  spouse, if living, for the use of the spouse and dependent
27  lineal heirs.  If the surviving spouse is not living, it shall
28  be paid to the lineal heirs or to the persons having their
29  care and custody. If any lineal heir is not living with the
30  surviving spouse, the allowance may be made partly to the
31  lineal heir or his or her guardian or other person having the
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  1  lineal heir's care and custody and partly to the surviving
  2  spouse, as the needs of the dependent lineal heir and the
  3  surviving spouse appear. The family allowance shall have the
  4  priority established by s. 733.707.  The family allowance is
  5  not chargeable against any benefit or share otherwise passing
  6  to the surviving spouse or to the dependent lineal heirs by
  7  intestate succession, elective share, or the will of the
  8  decedent, unless the will otherwise provides. The death of any
  9  person entitled to a family allowance terminates the his or
10  her right to that the part of the allowance not paid.  For
11  purposes of this section, the term "lineal heir" or "lineal
12  heirs" means lineal ascendants and lineal descendants of the
13  decedent.
14         Section 41.  Section 732.501, Florida Statutes, is
15  amended to read:
16         732.501  Who may make a will.--Any person who is of
17  sound mind and who is either 18 or more years of age or an
18  emancipated minor 18 or more years of age who is of sound mind
19  may make a will.
20         Section 42.  Paragraph (a) of subsection (1) and
21  subsection (2) of section 732.502, Florida Statutes, are
22  amended to read:
23         732.502  Execution of wills.--Every will must be in
24  writing and executed as follows:
25         (1)(a)  Testator's signature.--
26         1.  The testator must sign the will at the end; or
27         2.  The testator's name must be subscribed at the end
28  of the will by some other person in the testator's presence
29  and by the testator's his or her direction.
30         (2)  Any will, other than a holographic or nuncupative
31  will, executed by a nonresident of Florida, either before or
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  1  after this law takes effect, is valid as a will in this state
  2  if valid under the laws of the state or country where the will
  3  was executed testator was at the time of execution.  A will in
  4  the testator's handwriting that has been executed in
  5  accordance with subsection (1) shall not be considered a
  6  holographic will.
  7         Section 43.  Section 732.503, Florida Statutes, is
  8  amended to read:
  9         732.503  Self-proof of will.--
10         (1)  A will or codicil executed in conformity with s.
11  732.502(1) and (2) may be made self-proved at the time of its
12  execution or at any subsequent date by the acknowledgment of
13  it by the testator and the affidavits of the witnesses, each
14  made before an officer authorized to administer oaths and
15  evidenced by the officer's certificate attached to or
16  following the will, in substantially the following form:
17
18  STATE OF FLORIDA
19  COUNTY OF ....
20         I,               , declare to the officer taking my
21  acknowledgment of this instrument, and to the subscribing
22  witnesses, that I signed this instrument as my will.
23
24
25                     ________________________
26                             Testator
27
28         We,         and         , have been sworn by the
29  officer signing below, and declare to that officer on our
30  oaths that the testator declared the instrument to be the
31  testator's will and signed it in our presence and that we each
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  1  signed the instrument as a witness in the presence of the
  2  testator and of each other.
  3
  4
  5                     ________________________
  6                             Witness
  7
  8                     ________________________
  9                             Witness
10
11         Acknowledged and subscribed before me by the testator,
12  (type or print testator's name), who is personally known to me
13  or who has produced (state type of identification - see s.
14  117.05(5)(b)2.) as identification, and sworn to and subscribed
15  before me by the witnesses, (type or print name of first
16  witness) who is personally known to me or who has produced
17  (state type of identification - see s. 117.05(5)(b)2.) as
18  identification and (type or print name of second witness) who
19  is personally known to me or who has produced (state type of
20  identification - see s. 117.05(5)(b)2.) as identification, and
21  subscribed by me in the presence of the testator and the
22  subscribing witnesses, all on (date).
23                                       (Signature of Officer)   
24    (Print, type, or stamp commissioned name and affix official
25  seal) 
26
27         (2)  A will or codicil made self-proved under former
28  law, or executed in another state and made self-proved under
29  the laws of that state, shall be considered as self-proved
30  under this section.
31
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  1  STATE OF ....
  2  COUNTY OF ....
  3         We, ...., ...., and .... the testator and the
  4  witnesses, respectively, whose names are signed to the
  5  attached or foregoing instrument, having been sworn, declared
  6  to the undersigned officer that the testator, in the presence
  7  of witnesses, signed the instrument as the testator's last
  8  will (codicil), that the testator (signed) (or directed
  9  another to sign for him or her), and that each of the
10  witnesses, in the presence of the testator and in the presence
11  of each other, signed the will as a witness.
12                                                ...(Testator)...
13                                                 ...(Witness)...
14                                                 ...(Witness)...
15         Subscribed and sworn to before me by ...., the testator
16  who is personally known to me or who has produced ...(type of
17  identification)... as identification, and by ...., a witness
18  who is personally known to me or who has produced ...(type of
19  identification)... as identification, and by ...., a witness
20  who is personally known to me or who has produced ...(type of
21  identification)... as identification, on ...., ...(year)....
22                              ...(Signature of Notary Public)...
23  ...(Print, type, or stamp commissioned name of Notary
24  Public)...
25
26         Section 44.  Section 732.505, Florida Statutes, is
27  amended to read:
28         732.505  Revocation by writing.--A will or codicil, or
29  any part of either, is revoked:
30         (1)  By a subsequent inconsistent will or codicil, even
31  though the subsequent inconsistent will or codicil does not
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  1  expressly revoke all previous wills or codicils, but the
  2  revocation extends only so far as the inconsistency exists.
  3         (2)  By a subsequent written will, codicil, or other
  4  writing executed with the same formalities required for the
  5  execution of wills declaring the revocation, if the same
  6  formalities required for the execution of wills are observed
  7  in the execution of the will, codicil, or other writing.
  8         Section 45.  Section 732.507, Florida Statutes, is
  9  amended to read:
10         732.507  Effect of subsequent marriage, birth, or
11  dissolution of marriage.--
12         (1)  Neither subsequent marriage, nor subsequent
13  marriage and birth, nor or adoption of lineal descendants
14  shall revoke the prior will of any person, but the
15  pretermitted child or spouse shall inherit as set forth in ss.
16  732.301 and 732.302, regardless of the prior will.
17         (2)  Any provision provisions of a will executed by a
18  married person that, which provision affects the spouse of
19  that person, shall become void upon the divorce of that person
20  or upon the dissolution or annulment of the marriage.  After
21  the dissolution, divorce, or annulment, the any such will
22  shall be administered and construed as if the former spouse
23  had died at the time of the dissolution, divorce, or annulment
24  of the marriage, unless the will or the dissolution or divorce
25  judgment expressly provides otherwise.
26         Section 46.  Paragraph (d) of subsection (2) and
27  subsections (3) and (6) of section 732.513, Florida Statutes,
28  are amended to read:
29         732.513  Devises to trustee.--
30         (2)  The devise shall not be invalid for any or all of
31  the following reasons:
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  1         (d)  Because the only res of the trust is the possible
  2  expectancy of receiving, as a named beneficiary, a devise
  3  under a will or death benefits as described in s. 733.808, and
  4  even though the testator or other person has reserved any or
  5  all rights of ownership in the such death benefit policy,
  6  contract, or plan, including the right to change the
  7  beneficiary.
  8         (3)  The devise shall dispose of property under the
  9  terms of the instrument that created the trust as previously
10  or subsequently theretofore or thereafter amended.
11         (6)  This section shall be cumulative to all laws
12  touching upon the subject matter.
13         Section 47.  Section 732.514, Florida Statutes, is
14  amended to read:
15         732.514  Vesting of devises.--The death of the testator
16  is the event that vests the right to devises unless the
17  testator in the his or her will has provided that some other
18  event must happen before a devise vests shall vest.
19         Section 48.  Section 732.515, Florida Statutes, is
20  amended to read:
21         732.515  Separate writing identifying devises of
22  tangible property.--A will may refer to a written statement or
23  list referred to in the decedent's will shall to dispose of
24  items of tangible personal property, other than property used
25  in trade or business, not otherwise specifically disposed of
26  by the will, other than money and property used in trade or
27  business.  To be admissible under this section as evidence of
28  the intended disposition, the writing must be signed by the
29  testator and must describe the items and the devisees with
30  reasonable certainty.  The writing may be referred to as one
31  in existence at the time of the testator's death.  It may be
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  1  prepared before or after the execution of the will.  It may be
  2  altered by the testator after its preparation.  It may be a
  3  writing that has no significance apart from its effect upon
  4  the dispositions made by the will. If more than one otherwise
  5  effective writing exists, then, to the extent of any conflict
  6  among the writings, the provisions of the most recent writing
  7  revoke the inconsistent provisions of each prior writing.
  8         Section 49.  Subsection (1) of section 732.6005,
  9  Florida Statutes, is amended to read:
10         732.6005  Rules of construction and intention.--
11         (1)  The intention of the testator as expressed in the
12  his or her will controls the legal effect of the testator's
13  dispositions.  The rules of construction expressed in this
14  part shall apply unless a contrary intention is indicated by
15  the will.
16         Section 50.  Section 732.601, Florida Statutes, is
17  amended to read:
18         732.601  Simultaneous Death Law.--Unless a contrary
19  intention appears in the governing instrument:
20         (1)  When title to property or its devolution depends
21  on priority of death and there is insufficient evidence that
22  the persons have died otherwise than simultaneously, the
23  property of each person shall be disposed of as if that person
24  he or she had survived, except as provided otherwise in this
25  law.
26         (2)  When two or more beneficiaries are designated to
27  take successively by reason of survivorship under another
28  person's disposition of property and there is insufficient
29  evidence that the beneficiaries died otherwise than
30  simultaneously, the property thus disposed of shall be divided
31  into as many equal parts as there are successive beneficiaries
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  1  and the parts shall be distributed to those who would have
  2  taken if each designated beneficiary had survived.
  3         (3)  When there is insufficient evidence that two joint
  4  tenants or tenants by the entirety died otherwise than
  5  simultaneously, the property so held shall be distributed
  6  one-half as if one had survived and one-half as if the other
  7  had survived. If there are more than two joint tenants and all
  8  of them so died, the property thus distributed shall be in the
  9  proportion that one bears to the whole number of joint
10  tenants.
11         (4)  When the insured and the beneficiary in a policy
12  of life or accident insurance have died and there is
13  insufficient evidence that they died otherwise than
14  simultaneously, the proceeds of the policy shall be
15  distributed as if the insured had survived the beneficiary.
16         (5)  This law shall not apply in the case of wills,
17  living trusts, deeds, or contracts of insurance in which
18  provision has been made for distribution of property different
19  from the provisions of this law.
20         Section 51.  Section 732.603, Florida Statutes, is
21  amended to read:
22         732.603  Antilapse; deceased devisee; class
23  gifts.--Unless a contrary intention appears in the will:
24         (1)  If a devisee or a beneficiary of a trust created
25  by a will who is a grandparent, or a lineal descendant of a
26  grandparent, of the testator:
27         (a)  Is dead at the time of the execution of the will
28  or at the termination of a trust interest created by a will,
29         (b)  Fails to survive the testator, or
30         (c)  Is required by the will to be treated as having if
31  he or she predeceased the testator,
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  1
  2  then the descendants of the devisee or beneficiary take per
  3  stirpes in place of the deceased devisee or beneficiary.  A
  4  person who would have been a devisee under a class gift if
  5  that person he or she had survived the testator shall be a
  6  devisee for purposes of this section whether that person died
  7  his or her death occurred before or after the execution of the
  8  will.
  9         (2)  If a devisee or a beneficiary of a trust created
10  by a will who is not a grandparent, or a descendant of a
11  grandparent, of the testator:
12         (a)  Is dead at the time of the execution of the will
13  or at the termination of a trust interest created in a will,
14         (b)  Fails to survive the testator, or
15         (c)  Is required by the will to be treated as having if
16  he or she predeceased the testator,
17
18  then the testamentary disposition to the devisee or
19  beneficiary shall lapse unless an intention to substitute
20  another in his or her place appears in the will.
21         Section 52.  Subsection (2) of section 732.604, Florida
22  Statutes, is amended to read:
23         732.604  Failure of testamentary provision.--
24         (2)  Except as provided in s. 732.603, if the residue
25  is devised to two or more persons and the devise to share of
26  one of the residuary devisees fails for any reason, that
27  devise his or her share passes to the other residuary devisee,
28  or to the other residuary devisees in proportion to their
29  interests in the residue.
30         Section 53.  Section 732.605, Florida Statutes, is
31  amended to read:
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  1         732.605  Change in securities; accessions;
  2  nonademption.--
  3         (1)  If the testator intended a specific devise of
  4  certain securities rather than their equivalent value, the
  5  specific devisee is entitled only to:
  6         (a)  As much of the devised securities as is a part of
  7  the estate at the time of the testator's death.
  8         (b)  Any additional or other securities of the same
  9  entity owned by the testator because of action initiated by
10  the entity, excluding any acquired by exercise of purchase
11  options.
12         (c)  Securities of another entity owned by the testator
13  as a result of a merger, consolidation, reorganization, or
14  other similar action initiated by the entity.
15         (d)  Securities of the same entity acquired as a result
16  of a plan of reinvestment.
17         (2)  Distributions before death with respect to of a
18  specifically devised security, whether in cash or otherwise,
19  which are not provided for in subsection (1) are not part of
20  the specific devise.
21         Section 54.  Subsection (1) and paragraph (d) of
22  subsection (2) of section 732.606, Florida Statutes, are
23  amended to read:
24         732.606  Nonademption of specific devises in certain
25  cases; sale by guardian of the property; unpaid proceeds of
26  sale, condemnation, or insurance.--
27         (1)  If specifically devised property is sold by a
28  guardian of the property for the care and maintenance of the
29  ward or if a condemnation award or insurance proceeds are paid
30  to a guardian of the property as a result of condemnation,
31  fire, or casualty, the specific devisee has the right to a
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  1  general pecuniary devise equal to the net sale price, the
  2  condemnation award, or the insurance proceeds.  This
  3  subsection does not apply if, subsequent to the sale,
  4  condemnation, or casualty, it is adjudicated that the
  5  disability of the testator has ceased and the testator
  6  survives the adjudication by 1 year. The right of the specific
  7  devisee under this subsection is reduced by any right
  8  described in he or she has under subsection (2).
  9         (2)  A specific devisee has the right to the remaining
10  specifically devised property and:
11         (d)  Property owned by the testator at his or her death
12  as a result of foreclosure, or obtained instead of
13  foreclosure, of the security for the specifically devised
14  obligation.
15         Section 55.  Subsection (1) of section 732.701, Florida
16  Statutes, is amended to read:
17         732.701  Agreements concerning succession.--
18         (1)  No agreement to make a will, to give a devise, not
19  to revoke a will, not to revoke a devise, not to make a will,
20  or not to make a devise shall be binding or enforceable unless
21  the agreement is in writing and signed by the agreeing party
22  in the presence of two attesting witnesses. Such an agreement
23  executed by a nonresident of Florida, either before or after
24  this law takes effect, is valid in this state if valid when
25  executed under the laws of the state or country where the
26  agreement was executed, whether or not the agreeing party is a
27  Florida resident at the time of death.
28         Section 56.  Section 732.702, Florida Statutes, is
29  amended to read:
30         732.702  Waiver of spousal right to elect and of other
31  rights.--
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  1         (1)  The rights right of election of a surviving
  2  spouse, the rights of the surviving spouse as intestate
  3  successor or as a pretermitted spouse, and the rights of the
  4  surviving spouse to an elective share, intestate share,
  5  pretermitted share, homestead, exempt property, and family
  6  allowance, and preference in appointment as personal
  7  representative of an intestate estate or any of those rights
  8  them, may be waived, wholly or partly, before or after
  9  marriage, by a written contract, agreement, or waiver, signed
10  by the waiving party in the presence of two subscribing
11  witnesses. The requirement of witnesses shall be applicable
12  only to contracts, agreements, or waivers signed by Florida
13  residents after the effective date of this law. Any contract,
14  agreement, or waiver executed by a nonresident of Florida,
15  either before or after this law takes effect, is valid in this
16  state if valid when executed under the laws of the state or
17  country where it was executed, whether or not he or she is a
18  Florida resident at the time of death. Unless the waiver it
19  provides to the contrary, a waiver of "all rights," or
20  equivalent language, in the property or estate of a present or
21  prospective spouse, or a complete property settlement entered
22  into after, or in anticipation of, separation, dissolution of
23  marriage, or divorce, is a waiver of all rights to elective
24  share, intestate share, pretermitted share, homestead
25  property, exempt property, and family allowance, and
26  preference in appointment as personal representative of an
27  intestate estate, by the waiving party each spouse in the
28  property of the other and a renunciation by the waiving party
29  each of all benefits that would otherwise pass to the waiving
30  party either from the other by intestate succession or by the
31
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  1  provisions of any will executed before the written contract,
  2  agreement, or waiver or property settlement.
  3         (2)  Each spouse shall make a fair disclosure to the
  4  other of that spouse's his or her estate if the agreement,
  5  contract, or waiver is executed after marriage.  No disclosure
  6  shall be required for an agreement, contract, or waiver
  7  executed before marriage.
  8         (3)  No consideration other than the execution of the
  9  agreement, contract, or waiver shall be necessary to its
10  validity, whether executed before or after marriage.
11         Section 57.  Subsections (2), (3), (4), (5), (6), and
12  (7) of section 732.801, Florida Statutes, are amended to read:
13         732.801  Disclaimer of interests in property passing by
14  will or intestate succession or under certain powers of
15  appointment.--
16         (2)  SCOPE OF RIGHT TO DISCLAIM.--
17         (a)  A beneficiary may disclaim his or her succession
18  to any interest in property that, unless disclaimed, would
19  pass to the beneficiary:
20         1.  By intestate succession or devise.
21         2.  Under descent of homestead, exempt property, or
22  family allowance or under s. 222.13.
23         3.  Through exercise or nonexercise of a power of
24  appointment exercisable by will.
25         4.  Through testamentary exercise or nonexercise of a
26  power of appointment exercisable by either deed or will.
27         5.  As beneficiary of a testamentary trust.
28         6.  As a beneficiary of a testamentary gift to any
29  nontestamentary trust.
30         7.  As donee of a power of appointment created by will.
31
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  1         8.  By succession in any manner described in this
  2  subsection to a disclaimed interest.
  3         9.  In any manner not specifically enumerated herein
  4  under a testamentary instrument.
  5         (b)  Disclaimer may be made for a minor, incompetent,
  6  incapacitated person, or deceased beneficiary by the guardian
  7  or personal representative if the court having jurisdiction of
  8  the estate of the minor, incompetent, incapacitated person, or
  9  deceased beneficiary upon petition finds that the disclaimer:
10         1.  Is in the best interests of those interested in the
11  estate of the beneficiary and of those who take the
12  beneficiary's interest by virtue of the disclaimer and
13         2.  Is not detrimental to the best interests of the
14  beneficiary.
15
16  The determination shall be made on a petition filed for that
17  purpose and served on all interested persons.  If ordered by
18  the court, the guardian or personal representative shall
19  execute and record the disclaimer on behalf of the beneficiary
20  within the time and in the manner in which the beneficiary
21  could disclaim if he or she were living, of legal age, and
22  competent.
23         (3)  DISPOSITION OF DISCLAIMED INTERESTS.--
24         (a)  Unless the decedent or a donee of a power of
25  appointment has otherwise provided by will or other
26  appropriate instrument with reference to the possibility of a
27  disclaimer by the beneficiary, the interest disclaimed shall
28  descend, be distributed, or otherwise be disposed of in the
29  same manner as if the disclaimant had died immediately
30  preceding the death or other event that caused him or her to
31  become finally ascertained as a beneficiary and the
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  1  disclaimant's interest to become indefeasibly fixed both in
  2  quality and quantity.  The disclaimer shall relate to that
  3  date for all purposes, whether recorded before or after the
  4  death or other event.  An interest in property disclaimed
  5  shall never vest in the disclaimant.  If the provisions of s.
  6  732.603 would have been applicable had the disclaimant in fact
  7  died immediately preceding the death or other event, they
  8  shall be applicable to the disclaimed interest.
  9         (b)  Unless the his or her disclaimer instrument so
10  provides, a beneficiary who disclaims any interest that would
11  pass to him or her in any manner described in subsection (2)
12  shall not be excluded from sharing in any other interest to
13  which he or she may be entitled in any manner described in the
14  subsection, including subparagraph (2)(a)8., even though the
15  interest includes disclaimed assets by virtue of the
16  beneficiary's disclaimer.
17         (4)  FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER
18  INSTRUMENTS.--
19         (a)  To be A disclaimer shall be in, a writing and
20  shall declare the disclaimer and its extent, describe the
21  interest in property disclaimed, and be executed signed,
22  witnessed, and acknowledged in the manner provided for the
23  conveyance of real property.
24         (b)  A disclaimer shall be effective and irrevocable
25  when the instrument is recorded by the clerk where the estate
26  of the decedent is or has been administered.  If no
27  administration has been commenced, it may be recorded
28  recording may be made with the clerk of any county where venue
29  of administration is proper.
30         (c)  The person disclaiming shall deliver or mail a
31  copy of the disclaimer instrument to the personal
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  1  representative, trustee, or other person having legal title
  2  to, or possession of, the property in which the disclaimed
  3  interest exists.  No representative, trustee, or other person
  4  shall be liable for any otherwise proper distribution or other
  5  disposition made without actual notice of the disclaimer or,
  6  if the disclaimer is waived or barred as hereinafter provided,
  7  for any otherwise proper distribution or other disposition
  8  made in reliance on the disclaimer, if the distribution or
  9  disposition is made without actual notice of the facts
10  constituting the waiver or bar of barring the right to
11  disclaim.
12         (5)  TIME FOR RECORDING DISCLAIMER.--To be effective a
13  disclaimer shall be recorded at any time after the creation of
14  the interest, but in any event within 9 months after the event
15  giving rise to the right to disclaim, including the death of
16  the decedent; or, if the disclaimant is not finally
17  ascertained as a beneficiary or the disclaimant's interest has
18  not become indefeasibly fixed both in quality and quantity at
19  the death of the decedent, then the disclaimer shall be
20  recorded not later than 6 months after the event that would
21  cause the him or her to become finally ascertained and his or
22  her interest to become indefeasibly fixed both in quality and
23  quantity.  However, a disclaimer may be effective if recorded
24  at any time after the creation of the interest, upon the
25  written consent of all interested parties as provided in s.
26  731.302.
27         (6)  WAIVER OR BAR TO RIGHT TO DISCLAIM.--
28         (a)  The right to disclaim otherwise conferred by this
29  section shall be barred if the disclaimant beneficiary is
30  insolvent at the time of recording the disclaimer the event
31  giving rise to the right to disclaim and also by:
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  1         1.  Making a voluntary assignment or transfer of, a
  2  contract to assign or transfer, or an encumbrance of, an
  3  interest in real or personal property.
  4         2.  Giving a written waiver of the right to disclaim
  5  the succession to an interest in real or personal property.
  6         3.  Making any sale or other disposition of an interest
  7  in real or personal property pursuant to judicial process by
  8  the beneficiary before recording he or she has recorded a
  9  disclaimer.
10         (b)  The acceptance, assignment, transfer, encumbrance,
11  or written waiver of the right to disclaim a part of an
12  interest in property, or the sale pursuant to judicial process
13  of a part of an interest in property, shall not bar the right
14  to disclaim any other part of the interest in property.
15         (7)  EFFECT OF RESTRAINTS.--The right to disclaim
16  granted by this section is shall exist irrespective of any
17  limitation imposed on the interest of the disclaimant in the
18  nature of an express or implied spendthrift provision or
19  similar restriction.
20         Section 58.  Section 732.804, Florida Statutes, is
21  amended to read:
22         732.804  Provisions relating to disposition of the body
23  cremation.--Before issuance of letters, any person may carry
24  out written instructions of the decedent relating to the
25  decedent's body and funeral and burial arrangements. The fact
26  that cremation occurred pursuant to a written direction
27  provision of a will or any written contract signed by the
28  decedent that the in which he or she expressed the intent that
29  his or her body be cremated is a complete defense to a cause
30  of action against any person acting or relying on that
31
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  1  direction the personal representative or person providing the
  2  services.
  3         Section 59.  Section 732.901, Florida Statutes, is
  4  amended to read:
  5         732.901  Production of wills.--
  6         (1)  The custodian of a will must deposit the will with
  7  the clerk of the court having venue of the estate of the
  8  decedent within 10 days after receiving information that the
  9  testator is dead.  The custodian must supply the testator's
10  date of death or social security number to the clerk upon
11  deposit.  Willful failure to deposit the will with the clerk
12  within the time period specified shall render the custodian
13  responsible for all costs and damages sustained by anyone if
14  the court finds that the custodian had no just or reasonable
15  cause for withholding the deposit of the will.
16         (2)  Upon By petition and notice of it served on him or
17  her, the custodian of any will may be compelled to produce and
18  deposit the will as provided in subsection (1).  All costs,
19  damages, and a reasonable attorney's fee shall be adjudged to
20  petitioner against the delinquent custodian if the court finds
21  that the custodian had no just or reasonable cause for failing
22  to withholding the deposit of the will.
23         Section 60.  Section 732.910, Florida Statutes, is
24  renumbered as section 765.510, Florida Statutes.
25         Section 61.  Section 732.911, Florida Statutes, is
26  renumbered as section 765.511, Florida Statutes.
27         Section 62.  Section 732.912, Florida Statutes, is
28  renumbered as section 765.512, Florida Statutes, and amended
29  to read:
30         765.512 732.912  Persons who may make an anatomical
31  gift.--
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  1         (1)  Any person who may make a will may give all or
  2  part of his or her body for any purpose specified in s.
  3  765.510 732.910, the gift to take effect upon death.  An
  4  anatomical gift made by an adult donor and not revoked by the
  5  donor as provided in s. 765.516 732.916 is irrevocable and
  6  does not require the consent or concurrence of any person
  7  after the donor's death.
  8         (2)  If the decedent has executed an agreement
  9  concerning an anatomical gift, including signing an organ and
10  tissue donor card, expressing his or her wish to donate in a
11  living will or advance directive, or signifying his or her
12  intent to donate on his or her driver's license or in some
13  other written form has indicated his or her wish to make an
14  anatomical gift, and in the absence of actual notice of
15  contrary indications by the decedent, the surrogate designated
16  by the decedent pursuant to part II of chapter 765 may give
17  all or any part of the decedent's body for any purpose
18  specified in s. 765.510 732.910.
19         (3)  If the decedent has not executed an agreement
20  concerning an anatomical gift or designated a surrogate
21  pursuant to part II of chapter 765 to make an anatomical gift
22  pursuant to the conditions of subsection (2), a member of one
23  of the classes of persons listed below, in the order of
24  priority stated and in the absence of actual notice of
25  contrary indications by the decedent or actual notice of
26  opposition by a member of the same or a prior class, may give
27  all or any part of the decedent's body for any purpose
28  specified in s. 765.510 732.910:
29         (a)  The spouse of the decedent;
30         (b)  An adult son or daughter of the decedent;
31         (c)  Either parent of the decedent;
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  1         (d)  An adult brother or sister of the decedent;
  2         (e)  A grandparent of the decedent;
  3         (f)  A guardian of the person of the decedent at the
  4  time of his or her death; or
  5         (g)  A representative ad litem who shall be appointed
  6  by a court of competent jurisdiction forthwith upon a petition
  7  heard ex parte filed by any person, which representative ad
  8  litem shall ascertain that no person of higher priority exists
  9  who objects to the gift of all or any part of the decedent's
10  body and that no evidence exists of the decedent's having made
11  a communication expressing a desire that his or her body or
12  body parts not be donated upon death;
13
14  but no gift shall be made by the spouse if any adult son or
15  daughter objects, and provided that those of higher priority,
16  if they are reasonably available, have been contacted and made
17  aware of the proposed gift, and further provided that a
18  reasonable search is made to show that there would have been
19  no objection on religious grounds by the decedent.
20         (4)  If the donee has actual notice of contrary
21  indications by the decedent or, in the case of a spouse making
22  the gift, an objection of an adult son or daughter or actual
23  notice that a gift by a member of a class is opposed by a
24  member of the same or a prior class, the donee shall not
25  accept the gift.
26         (5)  The person authorized by subsection (3) may make
27  the gift after the decedent's death or immediately before the
28  decedent's death.
29         (6)  A gift of all or part of a body authorizes any
30  examination necessary to assure medical acceptability of the
31  gift for the purposes intended.
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  1         (7)  Once the gift has been made, the rights of the
  2  donee are paramount to the rights of others, except as
  3  provided by s. 765.517 732.917.
  4         Section 63.  Section 732.913, Florida Statutes, is
  5  renumbered as section 765.513, Florida Statutes.
  6         Section 64.  Section 732.914, Florida Statutes, is
  7  renumbered as section 765.514, Florida Statutes, and amended
  8  to read:
  9         765.514 732.914  Manner of executing anatomical
10  gifts.--
11         (1)  A gift of all or part of the body under s.
12  765.512(1) 732.912(1) may be made by will.  The gift becomes
13  effective upon the death of the testator without waiting for
14  probate.  If the will is not probated or if it is declared
15  invalid for testamentary purposes, the gift is nevertheless
16  valid to the extent that it has been acted upon in good faith.
17         (2)(a)  A gift of all or part of the body under s.
18  765.512(1) 732.912(1) may also be made by a document other
19  than a will.  The gift becomes effective upon the death of the
20  donor.  The document must be signed by the donor in the
21  presence of two witnesses who shall sign the document in the
22  donor's presence.  If the donor cannot sign, the document may
23  be signed for him or her at the donor's direction and in his
24  or her presence and the presence of two witnesses who must
25  sign the document in the donor's presence.  Delivery of the
26  document of gift during the donor's lifetime is not necessary
27  to make the gift valid.
28         (b)  The following form of written instrument shall be
29  sufficient for any person to give all or part of his or her
30  body for the purposes of this part:
31
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  1                        UNIFORM DONOR CARD
  2
  3  The undersigned hereby makes this anatomical gift, if
  4  medically acceptable, to take effect on death.  The words and
  5  marks below indicate my desires:
  6  I give:
  7         (a)  .... any needed organs or parts;
  8         (b)  .... only the following organs or parts
  9             ...[Specify the organ(s) or part(s)]...
10  for the purpose of transplantation, therapy, medical research,
11  or education;
12         (c)  .... my body for anatomical study if needed.
13  Limitations or special wishes, if any:
14            ...(If applicable, list specific donee)...
15
16  Signed by the donor and the following witnesses in the
17  presence of each other:
18
19  ...(Signature of donor)...      ...(Date of birth of donor)...
20  ...(Date signed)...                     ...(City and State)...
21
22  ...(Witness)...                                ...(Witness)...
23  ...(Address)...                                ...(Address)...
24
25         (3)  The gift may be made to a donee specified by name.
26  If the donee is not specified by name, the gift may be
27  accepted by the attending physician as donee upon or following
28  the donor's death. If the gift is made to a specified donee
29  who is not available at the time and place of death, the
30  attending physician may accept the gift as donee upon or
31  following death in the absence of any expressed indication
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  1  that the donor desired otherwise. However, the Legislature
  2  declares that the public policy of this state prohibits
  3  restrictions on the possible recipients of an anatomical gift
  4  on the basis of race, color, religion, sex, national origin,
  5  age, physical handicap, health status, marital status, or
  6  economic status, and such restrictions are hereby declared
  7  void and unenforceable. The physician who becomes a donee
  8  under this subsection shall not participate in the procedures
  9  for removing or transplanting a part.
10         (4)  Notwithstanding s. 765.517(2) 732.917(2), the
11  donor may designate in his or her will or other document of
12  gift the surgeon or physician to carry out the appropriate
13  procedures.  In the absence of a designation or if the
14  designee is not available, the donee or other person
15  authorized to accept the gift may employ or authorize any
16  surgeon or physician for the purpose.
17         (5)  Any gift by a member of a class designated in s.
18  765.512(3) 732.912(3) must be made by a document signed by
19  that person or made by that person's witnessed telephonic
20  discussion, telegraphic message, or other recorded message.
21         Section 65.  Section 732.915, Florida Statutes, is
22  renumbered as section 765.515, Florida Statutes, and amended
23  to read:
24         765.515 732.915  Delivery of document; organ and tissue
25  donor registry.--
26         (1)  If a gift is made through the program established
27  by the Agency for Health Care Administration and the
28  Department of Highway Safety and Motor Vehicles under the
29  authority of s. 765.521 732.921, the completed donor
30  registration card shall be delivered to the Department of
31  Highway Safety and Motor Vehicles and processed in a manner
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  1  specified in subsection (4), but delivery is not necessary to
  2  the validity of the gift. If the donor withdraws the gift, the
  3  records of the Department of Highway Safety and Motor Vehicles
  4  shall be updated to reflect such withdrawal.
  5         (2)  If a gift is not made through the program
  6  established by the Agency for Health Care Administration and
  7  the Department of Highway Safety and Motor Vehicles under the
  8  authority of s. 765.521 732.921 and is made by the donor to a
  9  specified donee, the document, other than a will, may be
10  delivered to the donee to expedite the appropriate procedures
11  immediately after death, but delivery is not necessary to the
12  validity of the gift. Such document may be deposited in any
13  hospital, bank, storage facility, or registry office that
14  accepts such documents for safekeeping or for facilitation of
15  procedures after death.
16         (3)  On the request of any interested party upon or
17  after the donor's death, the person in possession shall
18  produce the document for examination.
19         (4)  The Agency for Health Care Administration and the
20  Department of Highway Safety and Motor Vehicles shall develop
21  and implement an organ and tissue donor registry which shall
22  record, through electronic means, organ and tissue donation
23  documents submitted through the driver license identification
24  program or by other sources.  The registry shall be maintained
25  in a manner which will allow, through electronic and
26  telephonic methods, immediate access to organ and tissue
27  donation documents 24 hours a day, 7 days a week. Hospitals,
28  organ and tissue procurement agencies, and other parties
29  identified by the agency by rule shall be allowed access
30  through coded means to the information stored in the registry.
31  Costs for the organ and tissue donor registry shall be paid
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  1  from the Florida Organ and Tissue Donor Education and
  2  Procurement Trust Fund created by s. 765.52155 732.92155.
  3  Funds deposited into the Florida Organ and Tissue Donor
  4  Education and Procurement Trust Fund shall be utilized by the
  5  Agency for Health Care Administration for maintaining the
  6  organ and tissue donor registry and for organ and tissue donor
  7  education.
  8         Section 66.  Section 732.916, Florida Statutes, is
  9  renumbered as section 765.516, Florida Statutes.
10         Section 67.  Section 732.917, Florida Statutes, is
11  renumbered as section 765.517, Florida Statutes, and amended
12  to read:
13         765.517 732.917  Rights and duties at death.--
14         (1)  The donee, as specified under the provisions of s.
15  765.515(2) 732.915(2), may accept or reject the gift.  If the
16  donee accepts a gift of the entire body or a part of the body
17  to be used for scientific purposes other than a transplant,
18  the donee may authorize embalming and the use of the body in
19  funeral services, subject to the terms of the gift.  If the
20  gift is of a part of the body, the donee shall cause the part
21  to be removed without unnecessary mutilation upon the death of
22  the donor and before or after embalming.  After removal of the
23  part, custody of the remainder of the body vests in the
24  surviving spouse, next of kin, or other persons under
25  obligation to dispose of the body.
26         (2)  The time of death shall be determined by a
27  physician who attends the donor at the donor's death or, if
28  there is no such physician, the physician who certifies the
29  death.  After death and in the absence of other qualified
30  personnel, this physician may participate in, but shall not
31  obstruct, the procedures to preserve the donor's organs or
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  1  tissues and shall not be paid or reimbursed by, nor be
  2  associated with or employed by, an organ procurement
  3  organization, tissue bank, or eye bank. This physician shall
  4  not participate in the procedures for removing or
  5  transplanting a part.
  6         (3)  The organ procurement organization, tissue bank,
  7  or eye bank, or hospital medical professionals under the
  8  direction thereof, may perform any and all tests to evaluate
  9  the deceased as a potential donor and any invasive procedures
10  on the deceased body in order to preserve the potential
11  donor's organs.  These procedures do not include the surgical
12  removal of an organ or penetrating any body cavity,
13  specifically for the purpose of donation, until a properly
14  executed donor card or document is located or, if a properly
15  executed donor card or document cannot be located, a person
16  specified in s. 765.512(3) 732.912(3) has been located, has
17  been notified of the death, and has granted legal permission
18  for the donation.
19         (4)  All reasonable additional expenses incurred in the
20  procedures to preserve the donor's organs or tissues shall be
21  reimbursed by the organ procurement organization, tissue bank,
22  or eye bank.
23         (5)  A person who acts in good faith and without
24  negligence in accord with the terms of this part or under the
25  anatomical gift laws of another state or a foreign country is
26  not liable for damages in any civil action or subject to
27  prosecution for his or her acts in any criminal proceeding.
28         (6)  The provisions of this part are subject to the
29  laws of this state prescribing powers and duties with respect
30  to autopsies.
31
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  1         Section 68.  Section 732.918, Florida Statutes, is
  2  renumbered as section 765.518, Florida Statutes.
  3         Section 69.  Section 732.9185, Florida Statutes, is
  4  renumbered as section 765.5185, Florida Statutes.
  5         Section 70.  Section 732.919, Florida Statutes, is
  6  renumbered as section 765.519, Florida Statutes.
  7         Section 71.  Section 732.921, Florida Statutes, is
  8  renumbered as section 765.521, Florida Statutes, and amended
  9  to read:
10         765.521 732.921  Donations as part of driver license or
11  identification card process.--
12         (1)  The Agency for Health Care Administration and the
13  Department of Highway Safety and Motor Vehicles shall develop
14  and implement a program encouraging and allowing persons to
15  make anatomical gifts as a part of the process of issuing
16  identification cards and issuing and renewing driver licenses.
17  The donor registration card distributed by the Department of
18  Highway Safety and Motor Vehicles shall include the material
19  specified by s. 765.514(2)(b) 732.914(2)(b) and may require
20  such additional information, and include such additional
21  material, as may be deemed necessary by that department.  The
22  Department of Highway Safety and Motor Vehicles shall also
23  develop and implement a program to identify donors, which
24  program shall include notations on identification cards,
25  driver licenses, and driver records or such other methods as
26  the department may develop. This program shall include, after
27  an individual has completed a donor registration card, making
28  a notation on the front of the driver license or
29  identification card that clearly indicates the individual's
30  intent to donate the individual's organs or tissue. A notation
31  on an individual's driver license or identification card that
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  1  the individual intends to donate organs or tissues is deemed
  2  sufficient to satisfy all requirements for consent to organ or
  3  tissue donation. The Agency for Health Care Administration
  4  shall provide the necessary supplies and forms through funds
  5  appropriated from general revenue or contributions from
  6  interested voluntary, nonprofit organizations.  The Department
  7  of Highway Safety and Motor Vehicles shall provide the
  8  necessary recordkeeping system through funds appropriated from
  9  general revenue.  The Department of Highway Safety and Motor
10  Vehicles and the Agency for Health Care Administration shall
11  incur no liability in connection with the performance of any
12  acts authorized herein.
13         (2)  The Department of Highway Safety and Motor
14  Vehicles, after consultation with and concurrence by the
15  Agency for Health Care Administration, shall adopt rules to
16  implement the provisions of this section according to the
17  provisions of chapter 120.
18         (3)  Funds expended by the Agency for Health Care
19  Administration to carry out the intent of this section shall
20  not be taken from any funds appropriated for patient care.
21         Section 72.  Section 732.9215, Florida Statutes, is
22  renumbered as section 765.5215, Florida Statutes.
23         Section 73.  Section 732.92155, Florida Statutes, is
24  renumbered as section 765.52155, Florida Statutes.
25         Section 74.  Section 732.9216, Florida Statutes, is
26  renumbered as section 765.5216, Florida Statutes.
27         Section 75.  Section 732.922, Florida Statutes, is
28  renumbered as section 765.522, Florida Statutes, and amended
29  to read:
30
31
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  1         765.522 732.922  Duty of certain hospital
  2  administrators; liability of hospital administrators, organ
  3  procurement organizations, eye banks, and tissue banks.--
  4         (1)  When used in this section, "hospital" means any
  5  establishment licensed under chapter 395 except psychiatric
  6  and rehabilitation hospitals.
  7         (2)  Where, based on accepted medical standards, a
  8  hospital patient is a suitable candidate for organ or tissue
  9  donation, the hospital administrator or the hospital
10  administrator's designee shall, at or near the time of death,
11  access the organ and tissue donor registry created by s.
12  765.515(4) 732.915(4) to ascertain the existence of a donor
13  card or document executed by the decedent. In the absence of a
14  donor card, organ donation sticker or organ donation imprint
15  on a driver's license, or other properly executed document,
16  the hospital administrator or designee shall request:
17         (a)  The patient's health care surrogate, as permitted
18  in s. 765.512(2) 732.912(2); or
19         (b)  If the patient does not have a surrogate, or the
20  surrogate is not reasonably available, any of the persons
21  specified in s. 765.512(3) 732.912(3), in the order and manner
22  of priority stated in s. 765.512(3) 732.912(3),
23
24  to consent to the gift of all or any part of the decedent's
25  body for any purpose specified in this part. Except as
26  provided in s. 765.512 732.912, in the absence of actual
27  notice of opposition, consent need only be obtained from the
28  person or persons in the highest priority class reasonably
29  available.
30         (3)  A gift made pursuant to a request required by this
31  section shall be executed pursuant to s. 765.514 732.914.
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  1         (4)  The Agency for Health Care Administration shall
  2  establish rules and guidelines concerning the education of
  3  individuals who may be designated to perform the request and
  4  the procedures to be used in making the request.  The agency
  5  is authorized to adopt rules concerning the documentation of
  6  the request, where such request is made.
  7         (5)  There shall be no civil or criminal liability
  8  against any organ procurement organization, eye bank, or
  9  tissue bank certified under s. 381.6022, or against any
10  hospital or hospital administrator or designee, when complying
11  with the provisions of this part and the rules of the Agency
12  for Health Care Administration or when, in the exercise of
13  reasonable care, a request for organ donation is inappropriate
14  and the gift is not made according to this part and the rules
15  of the Agency for Health Care Administration.
16         (6)  The hospital administrator or a designee shall, at
17  or near the time of death of a potential organ donor, directly
18  notify the affiliated Health Care Financing Administration
19  designated organ procurement organization of the potential
20  organ donor. This organ procurement organization must offer
21  any organ from such a donor first to patients on a
22  Florida-based local or state organ sharing transplant list.
23  For the purpose of this subsection, the term "transplant list"
24  includes certain categories of national or regional organ
25  sharing for patients of exceptional need or exceptional match,
26  as approved or mandated by the United Network for Organ
27  Sharing. This notification must not be made to a tissue bank
28  or eye bank in lieu of the organ procurement organization
29  unless the tissue bank or eye bank is also a Health Care
30  Financing Administration designated organ procurement
31  organization.
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  1         Section 76.  Paragraph (h) of subsection (3) of section
  2  381.004, Florida Statutes, is amended to read:
  3         381.004  HIV testing.--
  4         (3)  HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
  5  CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
  6         (h)  Notwithstanding the provisions of paragraph (a),
  7  informed consent is not required:
  8         1.  When testing for sexually transmissible diseases is
  9  required by state or federal law, or by rule including the
10  following situations:
11         a.  HIV testing pursuant to s. 796.08 of persons
12  convicted of prostitution or of procuring another to commit
13  prostitution.
14         b.  Testing for HIV by a medical examiner in accordance
15  with s. 406.11.
16         2.  Those exceptions provided for blood, plasma,
17  organs, skin, semen, or other human tissue pursuant to s.
18  381.0041.
19         3.  For the performance of an HIV-related test by
20  licensed medical personnel in bona fide medical emergencies
21  when the test results are necessary for medical diagnostic
22  purposes to provide appropriate emergency care or treatment to
23  the person being tested and the patient is unable to consent,
24  as supported by documentation in the medical record.
25  Notification of test results in accordance with paragraph (c)
26  is required.
27         4.  For the performance of an HIV-related test by
28  licensed medical personnel for medical diagnosis of acute
29  illness where, in the opinion of the attending physician,
30  obtaining informed consent would be detrimental to the
31  patient, as supported by documentation in the medical record,
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  1  and the test results are necessary for medical diagnostic
  2  purposes to provide appropriate care or treatment to the
  3  person being tested. Notification of test results in
  4  accordance with paragraph (c) is required if it would not be
  5  detrimental to the patient.  This subparagraph does not
  6  authorize the routine testing of patients for HIV infection
  7  without informed consent.
  8         5.  When HIV testing is performed as part of an autopsy
  9  for which consent was obtained pursuant to s. 872.04.
10         6.  For the performance of an HIV test upon a defendant
11  pursuant to the victim's request in a prosecution for any type
12  of sexual battery where a blood sample is taken from the
13  defendant voluntarily, pursuant to court order for any
14  purpose, or pursuant to the provisions of s. 775.0877, s.
15  951.27, or s. 960.003; however, the results of any HIV test
16  performed shall be disclosed solely to the victim and the
17  defendant, except as provided in ss. 775.0877, 951.27, and
18  960.003.
19         7.  When an HIV test is mandated by court order.
20         8.  For epidemiological research pursuant to s.
21  381.0032, for research consistent with institutional review
22  boards created by 45 C.F.R. part 46, or for the performance of
23  an HIV-related test for the purpose of research, if the
24  testing is performed in a manner by which the identity of the
25  test subject is not known and may not be retrieved by the
26  researcher.
27         9.  When human tissue is collected lawfully without the
28  consent of the donor for corneal removal as authorized by s.
29  765.5185 732.9185 or enucleation of the eyes as authorized by
30  s. 765.519 732.919.
31
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  1         10.  For the performance of an HIV test upon an
  2  individual who comes into contact with medical personnel in
  3  such a way that a significant exposure has occurred during the
  4  course of employment or within the scope of practice and where
  5  a blood sample is available that was taken from that
  6  individual voluntarily by medical personnel for other
  7  purposes.  The term "medical personnel" includes a licensed or
  8  certified health care professional; an employee of a health
  9  care professional or health care facility; employees of a
10  laboratory licensed under chapter 483; personnel of a blood
11  bank or plasma center; a medical student or other student who
12  is receiving training as a health care professional at a
13  health care facility; and a paramedic or emergency medical
14  technician certified by the department to perform life-support
15  procedures under s. 401.23.
16         a.  Prior to performance of an HIV test on a
17  voluntarily obtained blood sample, the individual from whom
18  the blood was obtained shall be requested to consent to the
19  performance of the test and to the release of the results.
20  The individual's refusal to consent and all information
21  concerning the performance of an HIV test and any HIV test
22  result shall be documented only in the medical personnel's
23  record unless the individual gives written consent to entering
24  this information on the individual's medical record.
25         b.  Reasonable attempts to locate the individual and to
26  obtain consent shall be made and all attempts must be
27  documented. If the individual cannot be found, an HIV test may
28  be conducted on the available blood sample. If the individual
29  does not voluntarily consent to the performance of an HIV
30  test, the individual shall be informed that an HIV test will
31  be performed, and counseling shall be furnished as provided in
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  1  this section.  However, HIV testing shall be conducted only
  2  after a licensed physician documents, in the medical record of
  3  the medical personnel, that there has been a significant
  4  exposure and that, in the physician's medical judgment, the
  5  information is medically necessary to determine the course of
  6  treatment for the medical personnel.
  7         c.  Costs of any HIV test of a blood sample performed
  8  with or without the consent of the individual, as provided in
  9  this subparagraph, shall be borne by the medical personnel or
10  the employer of the medical personnel. However, costs of
11  testing or treatment not directly related to the initial HIV
12  tests or costs of subsequent testing or treatment shall not be
13  borne by the medical personnel or the employer of the medical
14  personnel.
15         d.  In order to utilize the provisions of this
16  subparagraph, the medical personnel must either be tested for
17  HIV pursuant to this section or provide the results of an HIV
18  test taken within 6 months prior to the significant exposure
19  if such test results are negative.
20         e.  A person who receives the results of an HIV test
21  pursuant to this subparagraph shall maintain the
22  confidentiality of the information received and of the persons
23  tested.  Such confidential information is exempt from s.
24  119.07(1).
25         f.  If the source of the exposure will not voluntarily
26  submit to HIV testing and a blood sample is not available, the
27  medical personnel or the employer of such person acting on
28  behalf of the employee may seek a court order directing the
29  source of the exposure to submit to HIV testing.  A sworn
30  statement by a physician licensed under chapter 458 or chapter
31  459 that a significant exposure has occurred and that, in the
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  1  physician's medical judgment, testing is medically necessary
  2  to determine the course of treatment constitutes probable
  3  cause for the issuance of an order by the court.  The results
  4  of the test shall be released to the source of the exposure
  5  and to the person who experienced the exposure.
  6         11.  For the performance of an HIV test upon an
  7  individual who comes into contact with medical personnel in
  8  such a way that a significant exposure has occurred during the
  9  course of employment or within the scope of practice of the
10  medical personnel while the medical personnel provides
11  emergency medical treatment to the individual; or who comes
12  into contact with nonmedical personnel in such a way that a
13  significant exposure has occurred while the nonmedical
14  personnel provides emergency medical assistance during a
15  medical emergency.  For the purposes of this subparagraph, a
16  medical emergency means an emergency medical condition outside
17  of a hospital or health care facility that provides physician
18  care. The test may be performed only during the course of
19  treatment for the medical emergency.
20         a.  An individual who is capable of providing consent
21  shall be requested to consent to an HIV test prior to the
22  testing. The individual's refusal to consent, and all
23  information concerning the performance of an HIV test and its
24  result, shall be documented only in the medical personnel's
25  record unless the individual gives written consent to entering
26  this information on the individual's medical record.
27         b.  HIV testing shall be conducted only after a
28  licensed physician documents, in the medical record of the
29  medical personnel or nonmedical personnel, that there has been
30  a significant exposure and that, in the physician's medical
31  judgment, the information is medically necessary to determine
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  1  the course of treatment for the medical personnel or
  2  nonmedical personnel.
  3         c.  Costs of any HIV test performed with or without the
  4  consent of the individual, as provided in this subparagraph,
  5  shall be borne by the medical personnel or the employer of the
  6  medical personnel or nonmedical personnel. However, costs of
  7  testing or treatment not directly related to the initial HIV
  8  tests or costs of subsequent testing or treatment shall not be
  9  borne by the medical personnel or the employer of the medical
10  personnel or nonmedical personnel.
11         d.  In order to utilize the provisions of this
12  subparagraph, the medical personnel or nonmedical personnel
13  shall be tested for HIV pursuant to this section or shall
14  provide the results of an HIV test taken within 6 months prior
15  to the significant exposure if such test results are negative.
16         e.  A person who receives the results of an HIV test
17  pursuant to this subparagraph shall maintain the
18  confidentiality of the information received and of the persons
19  tested.  Such confidential information is exempt from s.
20  119.07(1).
21         f.  If the source of the exposure will not voluntarily
22  submit to HIV testing and a blood sample was not obtained
23  during treatment for the medical emergency, the medical
24  personnel, the employer of the medical personnel acting on
25  behalf of the employee, or the nonmedical personnel may seek a
26  court order directing the source of the exposure to submit to
27  HIV testing.  A sworn statement by a physician licensed under
28  chapter 458 or chapter 459 that a significant exposure has
29  occurred and that, in the physician's medical judgment,
30  testing is medically necessary to determine the course of
31  treatment constitutes probable cause for the issuance of an
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  1  order by the court.  The results of the test shall be released
  2  to the source of the exposure and to the person who
  3  experienced the exposure.
  4         12.  For the performance of an HIV test by the medical
  5  examiner or attending physician upon an individual who expired
  6  or could not be resuscitated while receiving emergency medical
  7  assistance or care and who was the source of a significant
  8  exposure to medical or nonmedical personnel providing such
  9  assistance or care.
10         a.  HIV testing may be conducted only after a licensed
11  physician documents in the medical record of the medical
12  personnel or nonmedical personnel that there has been a
13  significant exposure and that, in the physician's medical
14  judgment, the information is medically necessary to determine
15  the course of treatment for the medical personnel or
16  nonmedical personnel.
17         b.  Costs of any HIV test performed under this
18  subparagraph may not be charged to the deceased or to the
19  family of the deceased person.
20         c.  For the provisions of this subparagraph to be
21  applicable, the medical personnel or nonmedical personnel must
22  be tested for HIV under this section or must provide the
23  results of an HIV test taken within 6 months before the
24  significant exposure if such test results are negative.
25         d.  A person who receives the results of an HIV test
26  pursuant to this subparagraph shall comply with paragraph (e).
27         13.  For the performance of an HIV-related test
28  medically indicated by licensed medical personnel for medical
29  diagnosis of a hospitalized infant as necessary to provide
30  appropriate care and treatment of the infant when, after a
31  reasonable attempt, a parent cannot be contacted to provide
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  1  consent. The medical records of the infant shall reflect the
  2  reason consent of the parent was not initially obtained.  Test
  3  results shall be provided to the parent when the parent is
  4  located.
  5         14.  For the performance of HIV testing conducted to
  6  monitor the clinical progress of a patient previously
  7  diagnosed to be HIV positive.
  8         15.  For the performance of repeated HIV testing
  9  conducted to monitor possible conversion from a significant
10  exposure.
11         Section 77.  Paragraph (c) of subsection (2) of section
12  381.0041, Florida Statutes, is amended to read:
13         381.0041  Donation and transfer of human tissue;
14  testing requirements.--
15         (2)  Notwithstanding the provisions of subsection (1),
16  written, informed consent to perform testing shall not be
17  required:
18         (c)  When an unrevoked anatomical gift has been made
19  pursuant to s. 765.514 732.914, by will or other written
20  instrument, and the donor is deceased or incompetent.
21         Section 78.  Section 733.101, Florida Statutes, is
22  amended to read:
23         733.101  Venue of probate proceedings.--
24         (1)  The venue for of probate of all wills and granting
25  of letters shall be:
26         (a)  In the county in this state where the decedent was
27  domiciled had his or her domicile.
28         (b)  If the decedent had no domicile in this state,
29  then in any county where the decedent's decedent was possessed
30  of any property is located.
31
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  1         (c)  If the decedent had no domicile in this state and
  2  possessed no property in this state, then in the county where
  3  any debtor of the decedent resides.
  4         (2)  For the purpose of this section, a married woman
  5  whose husband is an alien or a nonresident of Florida may
  6  establish or designate a separate domicile in this state.
  7         (3)  Whenever a When any proceeding is filed laying
  8  venue in an improper the wrong county, the court may transfer
  9  the action in the same manner as provided in the Florida Rules
10  of Civil Procedure.  Any action taken by the court or the
11  parties before the transfer is not affected by because of the
12  improper venue.
13         Section 79.  Subsection (2) of section 733.103, Florida
14  Statutes, is amended to read:
15         733.103  Effect of probate.--
16         (2)  In any collateral action or proceeding relating to
17  devised property, the probate of a will in Florida shall be
18  conclusive of its due execution; that it was executed by a
19  competent testator, free of fraud, duress, mistake, and undue
20  influence; and of the fact that the will was unrevoked on the
21  testator's death.
22         Section 80.  Section 733.104, Florida Statutes, is
23  amended to read:
24         733.104  Suspension of statutes of limitation in favor
25  of the personal representative.--
26         (1)  If a person entitled to bring an action dies
27  before the expiration of the time limited for the commencement
28  of the action and the cause of action survives, the action may
29  be commenced by that person's his or her personal
30  representative before the later of the expiration of the time
31  limited for the commencement of the action or 12 months after
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  1  the expiration and within 12 months from the date of the
  2  decedent's death.
  3         (2)  If a person against whom a cause of action exists
  4  dies before the expiration of the time limited for
  5  commencement of the action and the cause of action survives,
  6  if a claim is timely filed shall be filed on the cause of
  7  action, and it shall then proceed as other claims against the
  8  estate, notwithstanding the expiration of the time limited for
  9  commencement of the action shall not apply.
10         Section 81.  Section 733.105, Florida Statutes, is
11  amended to read:
12         733.105  Determination of beneficiaries.--
13         (1)  When property passes by intestate succession or
14  under a will to a person not sufficiently identified in the
15  will is unclear and there is the personal representative is in
16  doubt about:
17         (a)  Who is entitled to receive any part of the
18  property it or part of it, or
19         (b)  The shares and amounts that any person is entitled
20  to receive,
21
22  any interested person the personal representative may petition
23  the court to determine beneficiaries or their shares file a
24  petition setting forth the names, residences, and post office
25  addresses of all persons in interest, except creditors of the
26  decedent, so far as known or ascertainable by diligent search
27  and inquiry, and the nature of their respective interests,
28  designating those who are believed by the personal
29  representative to be minors or incompetents and stating
30  whether those so designated are under legal guardianship in
31  this state.  If the personal representative believes that
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  1  there are, or may be, persons whose names are not known to him
  2  or her who have claims against, or interest in, the estate as
  3  heirs or devisees, the petition shall so state.
  4         (2)  After formal notice and hearing, the court shall
  5  enter an order determining the heirs or devisees or the shares
  6  and amounts they are entitled to receive, or both.  Any
  7  personal representative who makes distribution or takes any
  8  other action pursuant to an the order determining
  9  beneficiaries shall be fully protected.
10         (3)  When it is necessary to determine who are or were
11  the heirs or devisees, the court may make a determination, on
12  the petition of any interested person, in like proceedings and
13  after formal notice, irrespective of whether the estate of the
14  deceased person is administered or, if administered, whether
15  the administration of the estate has been closed or the
16  personal representative discharged.  A separate civil action
17  to determine beneficiaries may be brought under this
18  subsection when an estate has not been is not being
19  administered.
20         Section 82.  Subsections (2), (3), and (4) of section
21  733.106, Florida Statutes, are amended to read:
22         733.106  Costs and attorney's attorney fees.--
23         (2)  A person nominated as personal representative of
24  the last known will, or any proponent of a the will if the
25  person so nominated does not act within a reasonable time, if
26  in good faith justified in offering the will in due form for
27  probate, shall receive his or her costs and attorney's
28  attorney fees from out of the estate even though probate is
29  denied or revoked he or she is unsuccessful.
30         (3)  Any attorney who has rendered services to an
31  estate may be awarded reasonable compensation from the estate
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  1  apply for an order awarding attorney fees, and after informal
  2  notice to the personal representative and all persons bearing
  3  the impact of the payment the court shall enter its order on
  4  the petition.
  5         (4)  When costs and attorney's attorney fees are to be
  6  paid from out of the estate, the court may, in its discretion,
  7  direct from what part of the estate they shall be paid.
  8         Section 83.  Section 733.107, Florida Statutes, is
  9  amended to read:
10         733.107  Burden of proof in contests.--In all
11  proceedings contesting the validity of a will, the burden
12  shall be upon the proponent of the will to establish prima
13  facie its formal execution and attestation.  Thereafter, the
14  contestant shall have the burden of establishing the grounds
15  on which the probate of the will is opposed or revocation is
16  sought.
17         Section 84.  Section 733.109, Florida Statutes, is
18  amended to read:
19         733.109  Revocation of probate.--
20         (1)  A proceeding to revoke the probate of a will shall
21  be brought in the court having jurisdiction over the
22  administration. Any interested person, including a beneficiary
23  under a prior will, unless except those barred under s.
24  733.212 or s. 733.2123, may commence the proceeding, before
25  final discharge of the personal representative, petition the
26  court in which the will was admitted to probate for revocation
27  of probate.
28         (a)  The petition shall state the interest of the
29  petitioner and the grounds for revocation.
30         (b)  The petition shall be served upon the personal
31  representative and all interested persons by formal notice,
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  1  and thereafter proceedings shall be conducted as an adversary
  2  proceeding under the rules of civil procedure.
  3         (2)  Pending the determination of any petition for
  4  revocation of probate, the personal representative shall
  5  proceed with the administration of the estate as if no
  6  revocation proceeding had been commenced, except that no
  7  distribution may be made to beneficiaries devisees in
  8  contravention of the rights of those who, but for the will,
  9  would be entitled to the property disposed of.
10         (3)  Revocation of probate of a will shall not affect
11  or impair the title to the property theretofore purchased in
12  good faith for value from the personal representative prior to
13  an order of revocation.
14         Section 85.  Subsection (3) of section 733.201, Florida
15  Statutes, is amended to read:
16         733.201  Proof of wills.--
17         (3)  If it appears to the court that the attesting
18  witnesses cannot be found or that they have become incompetent
19  after the execution of the will or their testimony cannot be
20  obtained within a reasonable time, a will may be admitted to
21  probate upon the oath of the personal representative nominated
22  by the will as provided in subsection (2), whether or not the
23  nominated personal representative he or she is interested in
24  the estate, or upon the oath of any person having no interest
25  in the estate under the will stating, that the person he or
26  she believes the writing exhibited to be the true last will of
27  the decedent.
28         Section 86.  Section 733.202, Florida Statutes, is
29  amended to read:
30         733.202  Petition.--Any interested person may petition
31  for administration.
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  1         (1)  A verified petition for administration may be
  2  filed by any interested person.
  3         (2)  The petition for administration shall contain:
  4         (a)  A statement of the interest of the petitioner, the
  5  petitioner's name and address, and the name and office address
  6  of his or her attorney.
  7         (b)  The name, last known address, social security
  8  number, and date and place of death of the decedent and the
  9  state and county of the decedent's domicile.
10         (c)  So far as is known, the names and addresses of the
11  beneficiaries and the dates of birth of any who are minors.
12         (d)  A statement showing venue.
13         (e)  The priority under part III of the person whose
14  appointment as the personal representative is sought.
15         (f)  A statement of the approximate value and nature of
16  the assets so the clerk can ascertain the amount of the filing
17  fee and the court can determine the amount of any bond
18  authorized by this code.
19         (3)  If the decedent was a nonresident of this state,
20  the petition shall state whether domiciliary proceedings are
21  pending in another state or country, if known, and, if so, the
22  name and address of the foreign personal representative and
23  the court issuing letters.
24         (4)  In an intestate estate, the petition shall:
25         (a)  State that after the exercise of reasonable
26  diligence the petitioner is unaware of any unrevoked wills or
27  codicils or, if the petitioner is aware of any unrevoked wills
28  or codicils, why the wills or codicils are not being probated,
29  or
30         (b)  Otherwise give the facts concerning the will or
31  codicil.
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  1         (5)  In a testate estate, the petition shall:
  2         (a)  Identify all unrevoked wills and codicils being
  3  presented for probate.
  4         (b)  State that the petitioner is unaware of any other
  5  unrevoked will or codicil or, if the petitioner is aware of
  6  any other unrevoked will or codicil, why the other will or
  7  codicil is not being probated.
  8         (c)  State that the original of the decedent's last
  9  will is in the possession of the court or accompanies the
10  petition or that an authenticated copy of a will probated in
11  another jurisdiction accompanies the petition.
12         Section 87.  Section 733.203, Florida Statutes, is
13  repealed:
14         733.203  Notice; when required.--
15         (1)  If a caveat has been filed by an heir or a devisee
16  under a will other than that being offered for probate, the
17  procedure provided for in s. 733.2123 shall be followed.
18         (2)  Except as may otherwise be provided in this part,
19  no notice need be given of the petition for administration or
20  of the order granting letters when it appears that the
21  petitioner is entitled to preference of appointment. Before
22  letters shall be granted to any person who is not entitled to
23  preference, formal notice shall be served on all known persons
24  qualified to act as personal representative and entitled to
25  preference equal to or greater than the applicant, unless
26  those entitled to preference waive it in writing.
27         Section 88.  Subsection (2) of section 733.204, Florida
28  Statutes, is amended to read:
29         733.204  Probate of a will written in a foreign
30  language.--
31
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  1         (2)  In admitting the will to probate, the court shall
  2  establish its correct English translation.  If the original
  3  will is not or cannot be filed, a photographic copy of the
  4  original will shall be filed.  At any time during the
  5  administration any interested person may have the correctness
  6  of the translation, or any part, redetermined after formal
  7  notice to all other interested persons. No personal
  8  representative who complies in good faith with the English
  9  translation of the will as may then be established by the
10  court shall thereafter be held liable for doing as a result of
11  having done so.
12         Section 89.  Section 733.205, Florida Statutes, is
13  amended to read:
14         733.205  Probate of notarial will.--
15         (1)  When a copy of a notarial will in the possession
16  of a notary entitled to its custody in a foreign state or
17  country, the laws of which state or country require that the
18  will remain in the custody of the such notary, duly
19  authenticated by the notary, whose official position,
20  signature, and seal of office are further authenticated by an
21  American consul, vice consul, or other American consular
22  officer within whose jurisdiction the notary is a resident, is
23  presented to the court, it may be admitted to probate if the
24  original could have been admitted to probate in this state.
25         (2)  The duly authenticated copy shall be prima facie
26  evidence of its purported execution and of the facts stated in
27  the certificate in compliance with subsection (1).
28         (3)  Any interested person notified may oppose the
29  probate of such a notarial will or may petition for revocation
30  of probate of such a notarial will, as in the case of original
31  probate of a will in this state.
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  1         Section 90.  Subsection (3) of section 733.206, Florida
  2  Statutes, is amended to read:
  3         733.206  Probate of will of resident after foreign
  4  probate.--
  5         (3)  Any interested person may oppose the probate of
  6  the will, or may petition for revocation of the probate of the
  7  will, as in the case of the original probate of a will in this
  8  state.
  9         Section 91.  Section 733.207, Florida Statutes, is
10  amended to read:
11         733.207  Establishment and probate of lost or destroyed
12  will.--Any interested person may establish the full and
13  precise terms of a lost or destroyed will and offer the will
14  for probate.
15         (1)  The establishment and probate of a lost or
16  destroyed will shall be in one proceeding.  The court shall
17  recite, and thereby establish and preserve, the full and
18  precise terms and provisions of the will in the order
19  admitting it to probate.
20         (2)  The petition for probate of a lost or destroyed
21  will shall contain a copy of the will or its substance. The
22  testimony of each witness must be reduced to writing and filed
23  and shall be evidence in any contest of the will if the
24  witness has died or moved from the state.
25         (3)  No lost or destroyed will shall be admitted to
26  probate unless formal notice has been given to those who, but
27  for the will, would be entitled to the property thereby
28  devised.  The specific content of the will must be clearly and
29  distinctly proved by the testimony of two disinterested
30  witnesses, or, if a correct copy is provided, it shall be
31  proved by one disinterested witness.
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  1         Section 92.  Section 733.208, Florida Statutes, is
  2  amended to read:
  3         733.208  Discovery of later will.--On the discovery of
  4  a later will or codicil expressly or impliedly revoking the
  5  probated will in whole or in part, pending or during
  6  administration, any interested person may petition to revoke
  7  the probate of the earlier will or to probate the later will
  8  or codicil offer the later will for probate.  The proceedings
  9  shall be similar to those for revocation of probate.  No later
10  will or codicil may be offered after the testate or intestate
11  estate has been completely administered and the personal
12  representative discharged closing of the estate.
13         Section 93.  Section 733.209, Florida Statutes, is
14  amended to read:
15         733.209  Estates of missing persons.--Any interested
16  person may petition to administer the estate of a missing
17  person; however, no personal representative shall be appointed
18  until the court determines the missing person is dead. The
19  estates of missing persons shall be administered in the same
20  manner as other estates.  A petition for administration of the
21  estate shall request entry of an order declaring the death of
22  a missing person prior to appointing a personal representative
23  and commencing administration.
24         Section 94.  Section 733.212, Florida Statutes, is
25  amended to read:
26         733.212  Notice of administration; filing of objections
27  and claims.--
28         (1)  The personal representative shall promptly publish
29  a notice of administration.  The notice shall contain the name
30  of the decedent, the file number of the estate, the
31  designation and address of the court in which the proceedings
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  1  are pending, the name and address of the personal
  2  representative, and the name and address of the personal
  3  representative's attorney and state the date of first
  4  publication. The notice shall require all interested persons
  5  to file with the court:
  6         (a)  All claims against the estate within the time
  7  periods set forth in s. 733.702, or be forever barred.
  8         (b)  Any objection by an interested person on whom
  9  notice was served that challenges the validity of the will,
10  the qualifications of the personal representative, venue, or
11  jurisdiction of the court within the later of 3 months after
12  the date of the first publication of the notice or 30 days
13  after the date of service of a copy of the notice on the
14  objecting person.
15         (2)  Publication shall be once a week for 2 consecutive
16  weeks, two publications being sufficient, in a newspaper
17  published in the county where the estate is administered or,
18  if there is no newspaper published in the county, in a
19  newspaper of general circulation in that county.
20         (1)(3)  The personal representative shall promptly
21  serve a copy of the notice of administration on the following
22  persons who are known to the personal representative:
23         (a)  The decedent's surviving spouse;
24         (b)  Beneficiaries; and
25         (c)  The trustee of any trust described in s.
26  733.707(3); and, of which the decedent was grantor
27         (d)  Persons who may be entitled to exempt property
28
29  in the manner provided for service of formal notice, unless
30  served under s. 733.2123.  The personal representative may
31  similarly serve a copy of the notice on any devisees under a
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  1  known prior will or heirs or others who claim or may claim an
  2  interest in the estate.
  3         (2)  The notice shall state the name of the decedent,
  4  the file number of the estate, the designation and address of
  5  the court in which the proceedings are pending, whether the
  6  estate is testate or intestate, and, if testate, the date of
  7  the will and any codicils, the name and address of the
  8  personal representative, and the name and address of the
  9  personal representative's attorney.  The notice shall state
10  that interested persons are required to file with the court
11  any objection by an interested person on whom the notice was
12  served that challenges the validity of the will, the
13  qualifications of the personal representative, venue, or
14  jurisdiction of the court within 3 months after the date of
15  service of a copy of the notice of administration on the
16  objecting person.
17         (3)  Any interested person on whom a copy of the notice
18  of administration was served must object to the validity of
19  the will, the qualifications of the personal representative,
20  venue, or jurisdiction of the court by filing a petition or
21  other pleading requesting relief in accordance with the
22  Florida Probate Rules within 3 months after the date of
23  service of a copy of the notice of administration on the
24  objecting person or those objections are forever barred. The
25  appointment of a personal representative or a successor
26  personal representative shall not extend or renew the period
27  for filing objections under this section, unless a new will or
28  codicil is admitted.
29         (4)(a)  The personal representative shall promptly make
30  a diligent search to determine the names and addresses of
31  creditors of the decedent who are reasonably ascertainable and
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  1  shall serve on those creditors a copy of the notice within 3
  2  months after the first publication of the notice. Under s.
  3  409.9101, the Agency for Health Care Administration is
  4  considered a reasonably ascertainable creditor in instances
  5  where the decedent had received Medicaid assistance for
  6  medical care after reaching 55 years of age. Impracticable and
  7  extended searches are not required.  Service is not required
  8  on any creditor who has filed a claim as provided in this
  9  part; a creditor whose claim has been paid in full; or a
10  creditor whose claim is listed in a personal representative's
11  timely proof of claim if the personal representative notified
12  the creditor of that listing.
13         (4)(b)  The personal representative is not individually
14  liable to any person for giving notice under this section
15  subsection, regardless of whether it is later determined that
16  such notice was not required by this section.  The service of
17  notice in accordance with this section subsection shall not be
18  construed as conferring any right admitting the validity or
19  enforceability of a claim.
20         (5)(c)  If the personal representative in good faith
21  fails to give notice required by this section subsection, the
22  personal representative is not liable to any person for the
23  failure. Liability, if any, for the failure in such a case is
24  on the estate.
25         (5)  Objections under paragraph (1)(b), by persons on
26  whom notice was served, that are not filed within the later of
27  3 months after the date of first publication of the notice or
28  30 days after the date of service of a copy of the notice on
29  the objecting person are forever barred.
30         (6)  If a will or codicil is subsequently admitted to
31  probate, the personal representative shall promptly serve a
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  1  copy of a new notice of administration as required for an
  2  initial will admission. Claims under paragraph (1)(a) are
  3  barred as provided in s. 733.702.
  4         Section 95.  Section 733.2121, Florida Statutes, is
  5  created to read:
  6         733.2121  Notice to creditors; filing of claims.--
  7         (1)  Unless creditors' claims are otherwise barred by
  8  s. 733.710, the personal representative shall promptly publish
  9  a notice to creditors.  The notice shall contain the name of
10  the decedent, the file number of the estate, the designation
11  and address of the court in which the proceedings are pending,
12  the name and address of the personal representative, the name
13  and address of the personal representative's attorney, and the
14  date of first publication.  The notice shall state that
15  creditors must file claims against the estate with the court
16  within the time periods set forth in ss. 733.702 and 733.710,
17  or be forever barred.
18         (2)  Publication shall be once a week for 2 consecutive
19  weeks, in a newspaper published in the county where the estate
20  is administered or, if there is no newspaper published in the
21  county, in a newspaper of general circulation in that county.
22         (3)(a)  The personal representative shall promptly make
23  a diligent search to determine the names and addresses of
24  creditors of the decedent who are reasonably ascertainable,
25  even if the claims are unmatured, contingent, or unliquidated,
26  and shall promptly serve a copy of the notice on those
27  creditors.  Impracticable and extended searches are not
28  required.  Service is not required on any creditor who has
29  filed a claim as provided in this part, whose claim has been
30  paid in full, or whose claim is listed in a personal
31  representative's timely filed proof of claim.
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  1         (b)  The personal representative is not individually
  2  liable to any person for giving notice under this section,
  3  even if it is later determined that notice was not required.
  4  The service of notice to creditors in accordance with this
  5  section shall not be construed as admitting the validity or
  6  enforceability of a claim.
  7         (c)  If the personal representative in good faith fails
  8  to give notice required by this section, the personal
  9  representative is not liable to any person for the failure.
10  Liability, if any, for the failure is on the estate.
11         (d)  If a decedent at the time of death was 55 years of
12  age or older, the personal representative shall promptly serve
13  a copy of the notice to creditors on the Agency for Health
14  Care Administration within 3 months after the first
15  publication of the notice to creditors, unless the agency has
16  already filed a statement of claim in the estate proceedings.
17         (e)  If the Department of Revenue has not previously
18  been served with a copy of the notice to creditors, then
19  service of the inventory on the Department of Revenue shall be
20  the equivalent of service of a copy of the notice to
21  creditors.
22         (4)  Claims are barred as provided in ss. 733.702 and
23  733.710.
24         Section 96.  Section 733.2123, Florida Statutes, is
25  amended to read:
26         733.2123  Adjudication before issuance of letters.--A
27  petitioner may serve formal notice of the his or her petition
28  for administration on interested persons. A copy of the will
29  offered for proposed to be admitted to probate shall be
30  attached to the notice. No person who is served with formal
31  notice of the petition for administration prior to the
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  1  issuance of letters or who has waived notice may challenge the
  2  validity of the will, testacy of the decedent, qualifications
  3  of the personal representative, venue, or jurisdiction of the
  4  court, except in connection with the proceedings before
  5  issuance of letters.
  6         Section 97.  Section 733.213, Florida Statutes, is
  7  amended to read:
  8         733.213  Probate as prerequisite to judicial petition
  9  for construction of will.--A will may not be construed until
10  it has been admitted to probate No pleading seeking
11  construction of a will may be maintained until the will has
12  first been probated.
13         Section 98.  Section 733.301, Florida Statutes, is
14  amended to read:
15         733.301  Preference in appointment of personal
16  representative.--
17         (1)  In the granting of letters of administration, the
18  following order of preference preferences shall be observed:
19         (a)(1)  In testate estates:
20         1.(a)  The personal representative, or his or her
21  successor, nominated by the will or pursuant to a power
22  conferred in the will.
23         2.(b)  The person selected by a majority in interest of
24  the persons entitled to the estate.
25         3.(c)  A devisee under the will.  If more than one
26  devisee applies, the court may select exercise its discretion
27  in selecting the one best qualified.
28         (b)(2)  In intestate estates:
29         1.(a)  The surviving spouse.
30         2.(b)  The person selected by a majority in interest of
31  the heirs.
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  1         3.(c)  The heir nearest in degree.  If more than one
  2  applies, the court may select exercise its discretion in
  3  selecting the one best qualified for the office.
  4         (2)(3)  A guardian of the property of a ward who if
  5  competent would be entitled to appointment as, or to select,
  6  the a personal representative may exercise the right to select
  7  the personal representative.
  8         (3)(4)  In either a testate or an intestate estate, if
  9  no application is made by any of the persons described named
10  in subsection (1) or subsection (2), the court shall appoint a
11  capable person; but no person may be appointed under this
12  subsection:
13         (a)  Who works for, or holds public office under, the
14  court.
15         (b)  Who is employed by, or holds office under, any
16  judge exercising probate jurisdiction.
17         (4)(5)  After letters have been granted in either a
18  testate or an intestate estate, if a person who was entitled
19  to, and has not waived, preference over the person appointed
20  at the time of the his or her appointment and on whom formal
21  notice was not served seeks the appointment, the letters
22  granted may be revoked and the person entitled to preference
23  may have letters granted to him or her after formal notice and
24  hearing.
25         (5)(6)  After letters have been granted in either a
26  testate or an intestate estate, if any will is subsequently
27  admitted to probate the letters shall be revoked and new
28  letters granted as provided in subsection (1).
29         Section 99.  Section 733.302, Florida Statutes, is
30  amended to read:
31
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  1         733.302  Who may be appointed personal
  2  representative.--Subject to the limitations in this part, any
  3  person who is sui juris and who is a resident of Florida at
  4  the time of the death of the person whose estate is to be
  5  administered he or she seeks to administer is qualified to act
  6  as personal representative in Florida.  A person who has been
  7  convicted of a felony or who, from sickness, intemperance, or
  8  want of understanding, is incompetent to discharge the duties
  9  of a personal representative is not qualified.
10         Section 100.  Subsections (1) and (2) of section
11  733.305, Florida Statutes, are amended to read:
12         733.305  Trust companies and other corporations and
13  associations.--
14         (1)  All trust companies incorporated under the laws of
15  Florida the state, all state banking corporations and state
16  savings associations authorized and qualified to exercise
17  fiduciary powers in Florida, and all national banking
18  associations and federal savings and loan associations
19  authorized and qualified to exercise fiduciary powers in
20  Florida shall be entitled to act as personal representatives
21  and curators of estates.
22         (2)  When a qualified corporation has been named as a
23  personal representative in a will and subsequently thereafter
24  transfers its business and assets to, consolidates or merges
25  with, or is in any manner provided by law succeeded by,
26  another qualified corporation, on the death of the testator,
27  the successor corporation may qualify as personal
28  representative, and the court may issue letters to the
29  successor corporation unless the will provides otherwise.
30         Section 101.  Section 733.306, Florida Statutes, is
31  amended to read:
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  1         733.306  Effect of appointment of debtor.--The
  2  appointment of a debtor as personal representative shall not
  3  extinguish the debt due to the decedent.  This section shall
  4  not prevent a testator from releasing a debtor by will.
  5         Section 102.  Section 733.307, Florida Statutes, is
  6  amended to read:
  7         733.307  Succession of administration.--The No personal
  8  representative of the estate of a deceased personal
  9  representative is not as such shall be authorized to
10  administer the estate of the first decedent.  On the death of
11  a the sole or surviving personal representative, the court
12  shall appoint a successor personal representative to complete
13  the administration of the estate.
14         Section 103.  Section 733.308, Florida Statutes, is
15  amended to read:
16         733.308  Administrator ad litem.--When it is necessary
17  that an estate must be represented and the there is no
18  personal representative is unable to do so of the estate, the
19  court shall appoint an administrator ad litem without bond to
20  represent the estate in that for that particular proceeding.
21  The fact that the personal representative is seeking
22  reimbursement for claims against the decedent paid by the
23  personal representative does not require appointment of an
24  administrator ad litem.
25         Section 104.  Section 733.309, Florida Statutes, is
26  amended to read:
27         733.309  Executor de son tort.--No person shall be
28  liable to a creditor of a decedent as executor de son tort,
29  but any person taking, converting, or intermeddling with the
30  property of a decedent shall be liable to the personal
31  representative or curator, when appointed, for the value of
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  1  all the property so taken or converted and for all damages to
  2  the estate caused by the his or her wrongful action. This
  3  section shall not be construed to prevent a creditor of a
  4  decedent from suing anyone in possession of property
  5  fraudulently conveyed by the decedent to set aside the
  6  fraudulent conveyance.
  7         Section 105.  Section 733.310, Florida Statutes, is
  8  created to read:
  9         733.310  Personal representative not qualified.--Any
10  time a personal representative knows or should have known that
11  he or she would not be qualified for appointment if
12  application for appointment were then made, the personal
13  representative shall promptly file and serve a notice setting
14  forth the reasons. A personal representative who fails to
15  comply with this section shall be personally liable for costs,
16  including attorney's fees, incurred in any removal proceeding,
17  if the personal representative is removed. This liability
18  shall be cumulative to any other provided by law.
19         Section 106.  Section 733.401, Florida Statutes, is
20  repealed:
21         733.401  Issuance of letters.--
22         (1)  After the petition for administration is filed:
23         (a)  The will, if any, shall be proved as provided
24  elsewhere in this code and shall be admitted to probate.
25         (b)  The court shall appoint the person entitled and
26  qualified to be personal representative.
27         (c)  The court shall determine the amount of any bond
28  required under this part.  The clerk may approve the bond in
29  the amount determined by the court and shall not charge a
30  service fee.
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  1         (d)  Any required oath or designation of, and
  2  acceptance by, a resident agent shall be filed.
  3         (2)  Upon compliance with all of the foregoing, letters
  4  shall be issued to the personal representative.
  5         (3)  Mistaken noncompliance with any of the
  6  requirements of subsection (1) shall not be jurisdictional.
  7         Section 107.  Section 733.402, Florida Statutes, is
  8  amended to read:
  9         733.402  Bond of fiduciary personal representative;
10  when required; form.--
11         (1)  Unless the bond requirement has been waived by the
12  will or by the court testator waived the requirement, every
13  fiduciary person to whom letters are granted shall execute and
14  file a bond with surety, as defined in s. 45.011, to be
15  approved by the clerk without a service fee. The bond shall be
16  payable to the Governor and the Governor's successors in
17  office, conditioned on the performance of all duties as
18  personal representative according to law.  The bond must be
19  joint and several.
20         (2)  No bond executed by a personal representative or
21  curator shall be void or invalid because of an informality in
22  it or an informality or illegality in the appointment of the
23  fiduciary. The bond shall have the same force as if the
24  appointment had been legally made and the bond executed in
25  proper form.
26         (3)  The requirements of this section shall not apply
27  to banks and trust companies authorized by law to act as
28  personal representative.
29         (4)  On petition by any interested person or on the
30  court's own motion, the court may waive the requirement of
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  1  filing a bond, require a bond, increase or decrease the bond,
  2  or require additional surety.
  3         Section 108.  Section 733.403, Florida Statutes, is
  4  amended to read:
  5         733.403  Amount of bond.--
  6         (1)  All bonds required by this part shall be in the
  7  penal sum that the court deems sufficient after consideration
  8  of the gross value of the estate, the relationship of the
  9  personal representative to the beneficiaries, exempt property
10  and any family allowance, the type and nature of assets, known
11  creditors, and liens and encumbrances on the assets.
12         (2)  On petition by any interested person or on the
13  court's own motion, the court may waive the requirement of
14  filing a bond, require a personal representative or curator to
15  give bond, increase or decrease the bond, or require
16  additional surety.
17         Section 109.  Section 733.404, Florida Statutes, is
18  amended to read:
19         733.404  Liability of surety.--No surety for any
20  personal representative or curator shall be charged beyond the
21  value of the assets of an estate because of any omission or
22  mistake in pleading or of false pleading of the personal
23  representative or curator.
24         Section 110.  Section 733.405, Florida Statutes, is
25  amended to read:
26         733.405  Release of surety.--
27         (1)  Subject to the limitations of this section, on the
28  petition of any interested person, the surety is entitled to
29  be released from liability for the future acts and omissions
30  of the fiduciary On petitioning the surety, or the personal
31  representative of a surety, on the bond of any personal
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  1  representative or curator shall be entitled as a matter of
  2  right to be released from future liability upon the bond.
  3         (2)  Pending the hearing of the petition, the court may
  4  restrain the fiduciary principal from acting in his or her
  5  representative capacity, except to preserve the estate.
  6         (3)  On hearing, the court shall enter an order
  7  prescribing the amount of the new bond for the fiduciary
  8  personal representative or curator and the date when the bond
  9  shall be filed. If the fiduciary principal fails to give the
10  new bond, the fiduciary he or she shall be removed at once,
11  and further proceedings shall be had as in cases of removal.
12         (4)  The original surety or sureties shall remain be
13  liable in accordance with the terms of its original bond for
14  all acts and omissions of the fiduciary that occur prior to
15  personal representative or surety until he or she has given
16  the approval of the new surety and filing and approval of the
17  bond and, after the giving of the new bond, shall remain
18  liable for all the principal's acts to the time of the filing
19  and approval of the new bond. The new surety shall be liable
20  on its bond for the principal's acts only after the filing and
21  approval of the new bond.
22         Section 111.  Section 733.406, Florida Statutes, is
23  amended to read:
24         733.406  Bond premium allowable as expense of
25  administration or costs.--A personal representative Any
26  receiver, assignee, trustee, committee, guardian, executor or
27  administrator, or other fiduciary required by law to give bond
28  shall pay the reasonable premium as an expense of
29  administration as such, may include as part of his or her
30  lawful expense such reasonable sum paid such an insurer for
31  such suretyship not exceeding 1 percent per annum on the
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  1  amount of the bond, as the head of department, board, court,
  2  judge or officer by whom, or the court or body in which, he or
  3  she was appointed allows; and in all actions or proceedings
  4  the party entitled to recover costs may include therein such
  5  reasonable sum as may have been paid such an insurer executing
  6  or guaranteeing any bond or undertaking therein.
  7         Section 112.  Section 733.501, Florida Statutes, is
  8  amended to read:
  9         733.501  Curators.--
10         (1)  When it is necessary, the court may appoint a
11  curator after and issue letters of curatorship to take charge
12  of the estate of a decedent until letters are granted.  If the
13  person entitled to letters is a resident of the county where
14  the property is situated, no curator shall be appointed until
15  formal notice is given to the person apparently so entitled to
16  letters of administration. The curator may be authorized to
17  perform any duty or function of a personal representative. If
18  there is great danger that any of the decedent's property is
19  likely to wasted, destroyed, or removed beyond the
20  jurisdiction of the court and if the appointment of a curator
21  would be delayed by giving notice, the court may appoint a
22  curator without giving notice. On appointment, the court shall
23  direct the person in possession of the effects of the decedent
24  to deliver them to the curator.  The order may be enforced by
25  contempt.
26         (2)  If there is great danger that the property or any
27  part of it is likely to be wasted, destroyed, or removed
28  beyond the jurisdiction of the court and if the appointment of
29  a curator would be delayed by giving notice, the court may
30  appoint a curator without giving notice.
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  1         (3)  On special order of the court, the curator may be
  2  authorized to perform any duty or function of a personal
  3  representative.
  4         (2)(4)  Bond shall be required of the curator as the
  5  court deems necessary to secure the property.  No bond shall
  6  be required of banks and trust companies as curators.
  7         (5)  The curator shall file an inventory of the
  8  property within 20 days.  When the personal representative
  9  qualifies, the curator shall immediately account and deliver
10  all assets of the estate in his or her hands to the personal
11  representative within 20 days, and in default shall be subject
12  to the provisions of this code relating to removal of personal
13  representatives.
14         (3)(6)  Curators shall be allowed reasonable
15  compensation for their services and the court may consider the
16  provisions of s. 733.617.
17         (4)  Curators shall be subject to removal and
18  surcharge.
19         Section 113.  Section 733.502, Florida Statutes, is
20  amended to read:
21         733.502  Resignation of personal representative.--A
22  personal representative may resign and be relieved of his or
23  her office. Notice of the petition shall be given to all
24  interested persons. Before relieving the personal
25  representative from his or her duties and obligations, the
26  court shall require the personal representative to file a true
27  and correct account of his or her administration and deliver
28  to his or her successor or to his or her joint personal
29  representative all of the property of the decedent and all
30  records concerning the estate. After notice to all interested
31  persons, the court may accept the resignation and then revoke
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  1  the letters of the resigning personal representative if the
  2  interests of the estate are not jeopardized by the
  3  resignation. The acceptance of the resignation, after
  4  compliance with this section, shall not exonerate the any
  5  personal representative or the his or her surety from
  6  liability previously incurred.
  7         Section 114.  Section 733.503, Florida Statutes, is
  8  amended to read:
  9         733.503  Appointment of successor upon
10  resignation.--When the personal representative's resignation
11  is accepted, the court shall appoint a personal representative
12  or shall appoint a curator to serve until a successor personal
13  representative is appointed If there is no joint personal
14  representative, a successor must be appointed and qualified
15  before a personal representative may be relieved of his or her
16  duties and obligations as provided in s. 733.502.
17         Section 115.  Section 733.5035, Florida Statutes, is
18  created to read:
19         733.5035  Surrender of assets after resignation.--When
20  the resignation has been accepted by the court, all estate
21  assets, records, documents, papers, and other property of or
22  concerning the estate in the resigning personal
23  representative's possession or control shall immediately be
24  surrendered to the successor fiduciary. The court may
25  establish the conditions and specify the assets and records,
26  if any, that the resigning personal representative may retain
27  until the final accounting of the resigning personal
28  representative has been approved.
29         Section 116.  Section 733.5036, Florida Statutes, is
30  created to read:
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  1         733.5036  Accounting and discharge following
  2  resignation.--
  3         (1)  A resigning personal representative shall file and
  4  serve a final accounting of the personal representative's
  5  administration.
  6         (2)  After determination and satisfaction of the
  7  liability, if any, of the resigning personal representative,
  8  after compensation of the personal representative and the
  9  attorney and other persons employed by the personal
10  representative, and upon receipt of evidence that
11  undistributed estate assets have been delivered to the
12  successor fiduciary, the personal representative shall be
13  discharged, the bond released, and the surety discharged.
14         Section 117.  Section 733.504, Florida Statutes, is
15  amended to read:
16         733.504  Causes of Removal of personal representative;
17  causes for removal.--A personal representative may be removed
18  and the his or her letters revoked for any of the following
19  causes, and the removal shall be in addition to any penalties
20  prescribed by law:
21         (1)  Adjudication of incompetency.
22         (2)  Physical or mental incapacity rendering the
23  personal representative incapable of the discharge of his or
24  her duties.
25         (3)  Failure to comply with any order of the court,
26  unless the order has been superseded on appeal.
27         (4)  Failure to account for the sale of property or to
28  produce and exhibit the assets of the estate when so required.
29         (5)  The Wasting or maladministration of the estate.
30         (6)  Failure to give bond or security for any purpose.
31         (7)  Conviction of a felony.
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  1         (8)  Insolvency of, or the appointment of a receiver or
  2  liquidator for, any corporate personal representative.
  3         (9)  The Holding or acquiring by the personal
  4  representative of conflicting or adverse interests against the
  5  estate that will or may adversely interfere with the
  6  administration of the estate as a whole.  This cause of
  7  removal shall not apply to the surviving spouse because of the
  8  exercise of the right to the elective share, family allowance,
  9  or exemptions, as provided elsewhere in this code.
10         (10)  Revocation of the probate of the decedent's will
11  that authorized or designated the appointment of the such
12  personal representative.
13         (11)  Removal of domicile from Florida, if domicile was
14  a requirement of initial appointment the personal
15  representative is no longer qualified under part III of this
16  chapter.
17         (12)  The personal representative would not now be
18  entitled to appointment.
19         Section 118.  Section 733.505, Florida Statutes, is
20  amended to read:
21         733.505  Jurisdiction in removal proceedings.--A
22  petition for removal shall be filed in the court having
23  jurisdiction of the administration issuing the letters.
24         Section 119.  Section 733.506, Florida Statutes, is
25  amended to read:
26         733.506  Proceedings for removal.--Proceedings for
27  removal of a personal representative may be commenced by the
28  court or upon the petition of an by any interested person or
29  joint personal representative. The court shall revoke the
30  letters of a removed personal representative. The removal of a
31  personal representative shall not exonerate the removed
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  1  personal representative or the removed personal
  2  representative's surety from any liability.
  3         Section 120.  Section 733.5061, Florida Statutes, is
  4  created to read:
  5         733.5061  Appointment of successor upon removal.--When
  6  a personal representative is removed, the court shall appoint
  7  a personal representative or shall appoint a curator to serve
  8  until a successor personal representative is appointed.
  9         Section 121.  Section 733.507, Florida Statutes, is
10  repealed:
11         733.507  Administration following resignation or
12  removal.--When a personal representative has resigned or is
13  removed and there is a remaining personal representative, no
14  other personal representative shall be appointed unless the
15  will otherwise requires.  The remaining personal
16  representative, together with any successor personal
17  representative, if appointed, shall complete the
18  administration of the estate.  If the resigned or removed
19  personal representative is a sole personal representative, the
20  court shall appoint a successor personal representative as
21  provided in s. 733.301.
22         Section 122.  Section 733.508, Florida Statutes, is
23  amended to read:
24         733.508  Accounting and discharge of removed personal
25  representatives upon removal.--
26         (1)  A removed personal representative shall file and
27  serve a final accounting of that personal representative's
28  administration.
29         (2)  After determination and satisfaction of the
30  liability, if any, of the removed personal representative,
31  after compensation of that personal representative and the
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  1  attorney and other persons employed by that personal
  2  representative, and upon receipt of evidence that the estate
  3  assets have been delivered to the successor fiduciary, the
  4  removed personal representative shall be discharged, the bond
  5  released, and the surety discharged. A removed personal
  6  representative shall file a full, true, and correct account of
  7  his or her administration within 30 days after removal.
  8         Section 123.  Section 733.509, Florida Statutes, is
  9  amended to read:
10         733.509  Surrender of assets upon removal.--Upon entry
11  of an order removing a personal representative, the removed
12  personal representative shall immediately deliver all estate
13  assets, records, documents, papers, and other property of or
14  concerning the estate in the removed personal representative's
15  possession or control to the remaining personal representative
16  or successor fiduciary The removed personal representative
17  shall deliver to the remaining or successor personal
18  representative all of the property of the decedent and all
19  records, documents, papers, and other property of or
20  concerning the estate.
21         Section 124.  Section 733.601, Florida Statutes, is
22  amended to read:
23         733.601  Time of accrual of duties and powers.--The
24  duties and powers of a personal representative commence upon
25  his or her appointment. The powers of a personal
26  representative relate back in time to give acts by the person
27  appointed, occurring before appointment and beneficial to the
28  estate, the same effect as those occurring after appointment
29  thereafter. Before issuance of letters, a person named
30  executor in a will may carry out written instructions of the
31  decedent relating to the decedent's body and funeral and
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  1  burial arrangements. A personal representative may ratify and
  2  accept acts on behalf of the estate done by others when the
  3  acts would have been proper for a personal representative.
  4         Section 125.  Section 733.602, Florida Statutes, is
  5  amended to read:
  6         733.602  General duties.--
  7         (1)  A personal representative is a fiduciary who shall
  8  observe the standards of care applicable to trustees as
  9  described by s. 737.302. A personal representative is under a
10  duty to settle and distribute the estate of the decedent in
11  accordance with the terms of the decedent's will and this code
12  as expeditiously and efficiently as is consistent with the
13  best interests of the estate. A personal representative shall
14  use the authority conferred upon him or her by this code, the
15  authority in the will, if any, and the authority of any order
16  of the court in proceedings to which he or she is party, for
17  the best interests of interested persons, including creditors
18  as well as beneficiaries.
19         (2)  A personal representative shall not be liable for
20  any act of administration or distribution if the act was
21  authorized at the time. Subject to other obligations of
22  administration, a probated will is authority to administer and
23  distribute the estate according to its terms. An order of
24  appointment of a personal representative is authority to
25  distribute apparently intestate assets to the heirs of the
26  decedent if, at the time of distribution, the personal
27  representative is not aware of a proceeding challenging
28  intestacy or a proceeding questioning the his or her
29  appointment or fitness to continue. Nothing in this section
30  affects the duty of the personal representative to administer
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  1  and distribute the estate in accordance with the rights of
  2  interested persons.
  3         Section 126.  Section 733.603, Florida Statutes, is
  4  amended to read:
  5         733.603  Personal representative to proceed without
  6  court order.--A personal representative shall proceed
  7  expeditiously with the settlement and distribution of a
  8  decedent's estate and, except as otherwise specified by this
  9  code or ordered by the court, shall do so without
10  adjudication, order, or direction of the court. A personal
11  representative may invoke the jurisdiction of the court to
12  resolve judicial questions concerning the estate or its
13  administration.
14         Section 127.  Section 733.604, Florida Statutes, is
15  amended to read:
16         733.604  Inventory.--
17         (1)(a)  Unless an inventory has been previously filed
18  Within 60 days after issuance of letters, a personal
19  representative who is not a curator or a successor to another
20  personal representative who has previously discharged the duty
21  shall file a verified an inventory of property of the estate,
22  listing it with reasonable detail and including for each
23  listed item its estimated fair market value at the date of the
24  decedent's death. Unless otherwise ordered by the court for
25  good cause shown, the any such inventory or amended or
26  supplementary inventory is subject to inspection only by the
27  clerk of the court, or the clerk's representative, the
28  personal representative, and the personal representative's
29  attorney, and other interested persons.
30         (b)  The initial opening of any safe-deposit box of the
31  decedent must be conducted in the presence of an employee of
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  1  the institution where the box is located and the personal
  2  representative. The inventory of the contents of the box also
  3  must be conducted in the presence of the employee and the
  4  personal representative, each of whom must verify the contents
  5  of the box by signing a copy of the inventory. The personal
  6  representative shall file the safe-deposit box inventory with
  7  the court within 10 days after the box is opened.
  8         (2)  The personal representative shall serve a copy of
  9  the inventory on the Department of Revenue, as provided in s.
10  199.062(4), the surviving spouse, each heir at law in an
11  intestate estate, each residuary beneficiary in a testate
12  estate, and any other interested person who may request it;
13  and the personal representative shall file proof of such
14  service. The inventory shall be verified by the personal
15  representative.
16         (2)(3)  If the personal representative learns of any
17  property not included in the original inventory, or learns
18  that the estimated value or description indicated in the
19  original inventory for any item is erroneous or misleading,
20  the personal representative he or she shall file a verified
21  prepare an amended or supplementary inventory showing any the
22  estimated value of the new items and their estimated value
23  item at the date of the decedent's death, or the revised
24  estimated value or description; and the personal
25  representative shall serve a copy of the amended or
26  supplementary inventory on each person on whom a copy of the
27  inventory was served and shall file proof of such service.
28  The amended or supplementary inventory shall be verified by
29  the personal representative.
30         (3)(4)  Upon written request to the personal
31  representative, a beneficiary shall be furnished a written
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  1  explanation of how the inventory value for an asset was
  2  determined, or, if an appraisal was obtained, a copy of the
  3  appraisal, as follows:
  4         (a)  To a residuary beneficiary or heir in an intestate
  5  estate, regarding all inventoried assets.
  6         (b)  To any other beneficiary, regarding all assets
  7  distributed or proposed to be distributed to that beneficiary.
  8  Upon the written request of a beneficiary for any asset
  9  specifically devised to that beneficiary, a beneficiary for
10  any asset received by that beneficiary in satisfaction of a
11  general devise, or a residuary beneficiary of a intestate
12  estate or an heir of an intestate estate, for any asset not
13  specifically devised, the personal representative shall
14  promptly furnish a written explanation of how the inventory
15  value for the asset was determined, including whether the
16  personal representative obtained an independent appraisal for
17  that asset and from whom the appraisal was obtained. The
18  personal representative must notify each beneficiary of that
19  beneficiary's rights under this subsection the right to
20  request information regarding determination of the inventory
21  value of an asset.  Neither a request nor the failure to
22  request information under this subsection affects any rights
23  of a beneficiary in subsequent proceedings concerning any
24  accounting of the personal representative or the propriety of
25  any action of the personal representative.
26         Section 128.  Section 733.605, Florida Statutes, is
27  repealed:
28         733.605  Appraisers.--The personal representative may
29  employ a qualified and disinterested appraiser to assist him
30  or her in ascertaining the fair market value of any asset at
31  the date of the decedent's death or any other date that may be
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  1  appropriate, the value of which may be subject to reasonable
  2  doubt. Different persons may be employed to appraise different
  3  kinds of assets included in the estate.
  4         Section 129.  Section 733.6065, Florida Statutes, is
  5  created to read:
  6         733.6065  Opening safe-deposit box.--
  7         (1)  Subject to the provisions of s. 655.936(2), the
  8  initial opening of the decedent's safe-deposit box shall be
  9  conducted in the presence of any two of the following persons:
10  an employee of the institution where the box is located, the
11  personal representative, or the personal representative's
12  attorney of record.  Each person who is present must verify
13  the contents of the box by signing a copy of the inventory
14  under penalties of perjury.  The personal representative shall
15  file the safe-deposit box inventory, together with a copy of
16  the box entry record from a date which is 6 months prior to
17  the date of death to the date of inventory, with the court
18  within 10 days after the box is opened.  Unless otherwise
19  ordered by the court, this inventory and the attached box
20  entry record is subject to inspection only by persons entitled
21  to inspect an inventory under s. 733.604(1).  The personal
22  representative may remove the contents of the box.
23         (2)  The right to open and examine the contents of a
24  safe-deposit box leased by a decedent, or any documents
25  delivered by a decedent for safekeeping, and to receive items
26  as provided for in s. 655.935 are in addition to the rights
27  provided for in subsection (1).
28         Section 130.  Section 733.607, Florida Statutes, is
29  amended to read:
30         733.607  Possession of estate.--
31
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  1         (1)  Except as otherwise provided by a decedent's will,
  2  every personal representative has a right to, and shall take
  3  possession or control of, the decedent's property, except the
  4  protected homestead, but any real property or tangible
  5  personal property may be left with, or surrendered to, the
  6  person presumptively entitled to it unless possession of the
  7  property by the personal representative will be necessary for
  8  purposes of administration. The request by a personal
  9  representative for delivery of any property possessed by a
10  beneficiary is conclusive evidence that the possession of the
11  property by the personal representative is necessary for the
12  purposes of administration, in any action against the
13  beneficiary for possession of it. The personal representative
14  shall take all steps reasonably necessary for the management,
15  protection, and preservation of the estate until distribution
16  and. He or she may maintain an action to recover possession of
17  property or to determine the title to it.
18         (2)  If, after providing for statutory entitlements and
19  all devises other than residuary devises, the assets of the
20  decedent's estate are insufficient to pay the expenses of the
21  administration and obligations of the decedent's estate and
22  enforceable claims of the decedent's creditors, the personal
23  representative is entitled to payment from the trustee of a
24  trust described in s. 733.707(3), in the amount the personal
25  representative certifies in writing to be required to satisfy
26  the such insufficiency.
27         Section 131.  Section 733.608, Florida Statutes, is
28  amended to read:
29         733.608  General power of the personal
30  representative.--
31
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  1         (1)  All real and personal property of the decedent,
  2  except the protected homestead, within this state and the
  3  rents, income, issues, and profits from it shall be assets in
  4  the hands of the personal representative:
  5         (a)(1)  For the payment of devises, debts, family
  6  allowance, elective share, estate and inheritance taxes,
  7  claims, charges, and expenses of the administration and
  8  obligations of the decedent's estate.
  9         (b)(2)  To enforce contribution and equalize
10  advancement.
11         (c)(3)  For distribution.
12         (2)  If property that reasonably appears to the
13  personal representative to be protected homestead is not in
14  the possession of a person who appears to have an interest in
15  the property, the personal representative is authorized, but
16  not required, to take possession of that property for the
17  limited purpose of preserving, insuring, and protecting it for
18  the heir or devisee, pending a determination of its homestead
19  status.  If the personal representative takes possession of
20  that property, any rents and revenues may be collected by the
21  personal representative for the account of the heir or
22  devisee, but the personal representative shall have no duty to
23  rent or otherwise make the property productive.
24         Section 132.  Section 733.609, Florida Statutes, is
25  amended to read:
26         733.609  Improper exercise of power; breach of
27  fiduciary duty.--A personal representative's fiduciary duty is
28  the same as the fiduciary duty of a trustee of an express
29  trust and a personal representative is liable to interested
30  persons for damage or loss resulting from the breach of this
31  duty.  In all actions for breach of fiduciary duty or
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  1  challenging the exercise of or failure to exercise a personal
  2  representative's powers, the court shall award taxable costs
  3  as in chancery actions, including attorney's fees If the
  4  exercise of power concerning the estate is improper or in bad
  5  faith, the personal representative is liable to interested
  6  persons for damage or loss resulting from a breach of his or
  7  her fiduciary duty to the same extent as a trustee of an
  8  express trust. In all actions challenging the proper exercise
  9  of a personal representative's powers, the court shall award
10  taxable costs as in chancery actions, including attorney's
11  fees.
12         Section 133.  Section 733.610, Florida Statutes, is
13  amended to read:
14         733.610  Sale, encumbrance or transaction involving
15  conflict of interest.--Any sale or encumbrance to the personal
16  representative or the personal representative's his or her
17  spouse, agent, or attorney, or any corporation or trust in
18  which the personal representative has a substantial beneficial
19  interest, or any transaction that is affected by a conflict of
20  interest on the part of the personal representative, is
21  voidable by any interested person except one who has consented
22  after fair disclosure, unless:
23         (1)  The will or a contract entered into by the
24  decedent expressly authorized the transaction; or
25         (2)  The transaction is approved by the court after
26  notice to interested persons.
27         Section 134.  Section 733.611, Florida Statutes, is
28  amended to read:
29         733.611  Persons dealing with the personal
30  representative; protection.--Except as provided in s.
31  733.613(1), a person who in good faith either assists or deals
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  1  for value with a personal representative or deals with him or
  2  her for value is protected as if the personal representative
  3  acted properly exercised his or her power. The fact that a
  4  person knowingly deals with the personal representative does
  5  not alone require the person to inquire into the authority of
  6  the personal representative existence of his or her power, the
  7  limits on the power, or the propriety of its exercise.  A
  8  person is not bound to see to the proper application of estate
  9  assets paid or delivered to the personal representative. This
10  The protection here expressed extends to instances in which a
11  procedural irregularity or jurisdictional defect occurred in
12  proceedings leading to the issuance of letters, including a
13  case in which the alleged decedent is alive.  This protection
14  is in addition to any protection afforded by The protection
15  here expressed is not by substitution for that provided in
16  comparable provisions of the laws relating to commercial
17  transactions and laws simplifying transfers of securities by
18  fiduciaries.
19         Section 135.  Section 733.612, Florida Statutes, is
20  amended to read:
21         733.612  Transactions authorized for the personal
22  representative; exceptions.--Except as otherwise provided by
23  the will or court by order of court, and subject to the
24  priorities stated in s. 733.805, without court order of court,
25  a personal representative, acting reasonably for the benefit
26  of the interested persons, may properly:
27         (1)  Retain assets owned by the decedent, pending
28  distribution or liquidation, including those in which the
29  personal representative is personally interested or that are
30  otherwise improper for fiduciary trust investments.
31
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  1         (2)  Perform or compromise, or, when proper, refuse to
  2  perform performance of, the decedent's contracts.  In
  3  performing the decedent's enforceable contracts by the
  4  decedent to convey or lease real property, among other
  5  possible courses of action, the personal representative may:
  6         (a)  Convey the real property for cash payment of all
  7  sums remaining due or for the purchaser's note for the sum
  8  remaining due, secured by a mortgage on the property land.
  9         (b)  Deliver a deed in escrow, with directions that the
10  proceeds, when paid in accordance with the escrow agreement,
11  be paid as provided to the distributees of the decedent, as
12  designated in the escrow agreement.
13         (3)  Receive assets from fiduciaries or other sources.
14         (4)  Invest funds as provided in ss. 518.10-518.14,
15  considering the amount to be invested, liquidity needs of the
16  estate, and the time until distribution will be made If funds
17  are not needed to meet debts and expenses currently payable
18  and are not immediately distributable, deposit or invest
19  liquid assets of the estate, including moneys received from
20  the sale of other assets, in federally insured
21  interest-bearing accounts, readily marketable secured loan
22  arrangements, or other prudent investments that would be
23  reasonable for use by trustees.
24         (5)  Acquire or dispose of an asset, excluding real
25  property in this or another state, for cash or on credit and
26  at public or private sale, and manage, develop, improve,
27  exchange, partition, or change the character of an estate
28  asset.
29         (6)  Make ordinary or extraordinary repairs or
30  alterations in buildings or other structures; demolish
31  improvements; or erect new party walls or buildings.
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  1         (7)  Enter into a lease, as lessor or lessee, for a
  2  term within, or extending beyond, the period of
  3  administration, with or without an option to renew.
  4         (8)  Enter into a lease or arrangement for exploration
  5  and removal of minerals or other natural resources or enter
  6  into a pooling or unitization agreement.
  7         (9)  Abandon property when it is valueless or so
  8  encumbered, or in a such condition, that it is of no benefit
  9  to the estate.
10         (10)  Vote, or refrain from voting, stocks or other
11  securities in person or by general or limited proxy.
12         (11)  Pay calls, assessments, and other sums chargeable
13  or accruing against, or on account of, securities, unless
14  barred by the provisions relating to claims.
15         (12)  Hold property in the name of a nominee or in
16  other form without disclosure of the interest of the estate,
17  but the personal representative is liable for any act of the
18  nominee in connection with the property so held.
19         (13)  Insure the assets of the estate against damage
20  or, loss, and liability and insure against personal and
21  fiduciary liability himself or herself against liability to
22  third persons.
23         (14)  Borrow money, with or without security, to be
24  repaid from the estate assets or otherwise, other than real
25  property, and advance money for the protection of the estate.
26         (15)  Extend, renew, or in any manner modify any
27  obligation owing to the estate. If the personal representative
28  holds a mortgage, security interest, or other lien upon
29  property of another person, he or she may accept a conveyance
30  or transfer of encumbered assets from the owner in
31
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  1  satisfaction of the indebtedness secured by its lien instead
  2  of foreclosure.
  3         (16)  Pay taxes, assessments, and other expenses
  4  incident to the administration of the estate.
  5         (17)  Sell or exercise stock subscription or conversion
  6  rights or consent, directly or through a committee or other
  7  agent, to the reorganization, consolidation, merger,
  8  dissolution, or liquidation of a corporation or other business
  9  enterprise.
10         (18)  Allocate items of income or expense to either
11  estate income or principal, as permitted or provided by law.
12         (19)  Employ persons, including, but not limited to,
13  attorneys, accountants, auditors, appraisers, investment
14  advisers, and others, even if they are one and the same as the
15  personal representative or are associated with the personal
16  representative, to advise or assist the personal
17  representative in the performance of his or her administrative
18  duties; act upon the recommendations of those such employed
19  persons without independent investigation; and, instead of
20  acting personally, employ one or more agents to perform any
21  act of administration, whether or not discretionary. Any fees
22  and compensation paid to a any such person who is the same as,
23  associated with, or employed by, the personal representative
24  shall be taken into consideration in determining the personal
25  representative's compensation.
26         (20)  Prosecute or defend claims or proceedings in any
27  jurisdiction for the protection of the estate and of the
28  personal representative in the performance of his or her
29  duties.
30         (21)  Sell, mortgage, or lease any personal property of
31  the estate or any interest in it for cash, credit, or for part
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  1  cash or part credit, and with or without security for the
  2  unpaid balance.
  3         (22)  Continue any unincorporated business or venture
  4  in which the decedent was engaged at the time of his or her
  5  death:
  6         (a)  In the same business form for a period of not more
  7  than 4 months from the date of his or her appointment, if
  8  continuation is a reasonable means of preserving the value of
  9  the business, including good will.
10         (b)  In the same business form for any additional
11  period of time that may be approved by court order of court.
12         (23)  Provide for exoneration of the personal
13  representative from personal liability in any contract entered
14  into on behalf of the estate.
15         (24)  Satisfy and settle claims and distribute the
16  estate as provided in this code.
17         (25)  Enter into agreements with the proper officer or
18  department head, commissioner, or agent of any department of
19  the government of the United States, waiving the statute of
20  limitations concerning the assessment and collection of any
21  federal tax or any deficiency in a federal tax.
22         (26)  Make partial part distribution to the
23  beneficiaries of any part of the estate not necessary to
24  satisfy claims, expenses of administration, taxes, family
25  allowance, exempt property, and an elective share, in
26  accordance with the decedent's will or as authorized by
27  operation of law.
28         (27)  Execute any instruments necessary in the exercise
29  of the personal representative's powers.
30         Section 136.  Section 733.6121, Florida Statutes, is
31  amended to read:
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  1         733.6121  Powers of personal representatives conferred
  2  by this part in relation to environmental or human health laws
  3  affecting property subject to administration or to property
  4  subject to administration contaminated with hazardous or toxic
  5  substances; liability.--
  6         (1)  Except as otherwise provided by the will or by
  7  court order of court, and subject to s. 733.805, the personal
  8  representative has, without court authorization, the powers
  9  specified in subsection (2).
10         (2)  A personal representative has the power, acting
11  reasonably and for the benefit of the interested persons
12  parties:
13         (a)  To inspect or investigate, or cause to be
14  inspected or investigated, property subject to administration,
15  including interests in sole proprietorships, partnerships, or
16  corporations and any assets owned by any such a business
17  entity for the purpose of determining compliance with an
18  environmental law affecting that property or to respond to an
19  actual or threatened violation of an environmental law
20  affecting that property;
21         (b)  To take, on behalf of the estate, any action
22  necessary to prevent, abate, or otherwise remedy an actual or
23  potential violation of an environmental law affecting property
24  subject to administration, either before or after initiation
25  of an enforcement action by a governmental body;
26         (c)  To settle or compromise at any time any claim
27  against the estate or the personal representative that may be
28  asserted by a governmental body or private party which
29  involves the alleged violation of an environmental law
30  affecting property subject to administration over which the
31  personal representative has responsibility;
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  1         (d)  To disclaim any power granted by any document,
  2  statute, or rule of law which, in the sole judgment of the
  3  personal representative, could cause the personal
  4  representative to incur personal liability, or the estate to
  5  incur liability, under any environmental law;
  6         (e)  To decline to serve as a personal representative,
  7  or having undertaken to serve as a personal representative, to
  8  resign at any time, if the personal representative believes
  9  that there is or could be a conflict of interest in his or her
10  fiduciary capacity and in his or her individual capacity
11  because of potential claims or liabilities that could be
12  asserted against it on behalf of the estate by reason of the
13  type or condition of the assets held; or
14         (f)  To charge against the assets of the estate the
15  cost of any inspection, investigation, review, abatement,
16  response, cleanup, or remedial action considered reasonable by
17  the personal representative that this section authorizes the
18  personal representative to take; and, in the event of the
19  closing or termination of the estate or the transfer of the
20  estate property to another personal representative, to hold
21  moneys sufficient to cover the cost of cleaning up any known
22  environmental problem.
23         (3)  A personal representative is not personally liable
24  to any beneficiary or any other party for a decrease in value
25  of assets in an estate by reason of the personal
26  representative's compliance or efforts to comply with an
27  environmental law, specifically including any reporting
28  requirement under that law.
29         (4)  A personal representative who acquires ownership
30  or control of a vessel or other property without having owned,
31  operated, or materially participated in the management of that
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  1  vessel or property before assuming ownership or control as
  2  personal representative is not considered an owner or operator
  3  for purposes of liability under chapter 376, chapter 403, or
  4  any other environmental law.  A personal representative who
  5  willfully, knowingly, or recklessly causes or exacerbates a
  6  release or threatened release of a hazardous substance is
  7  personally liable for the cost of the response, to the extent
  8  that the release or threatened release is attributable to the
  9  personal representative's activities.  This subsection does
10  not preclude the filing of claims against the assets that
11  constitute the estate held by the personal representative or
12  the filing of actions against the personal representative as
13  representative of the estate in his or her representative
14  capacity. In any such an action, an award or judgment against
15  the personal representative must be satisfied only from the
16  assets of the estate.
17         (5)  Neither the acceptance by the personal
18  representative of the property or a failure by the personal
19  representative to inspect or investigate the property creates
20  any inference of as to whether there is liability under an
21  environmental law with respect to that property.
22         (6)  For the purposes of this section, the term
23  "environmental law" means a federal, state, or local law,
24  rule, regulation, or ordinance that relates to protection of
25  the environment or human health, and the term "hazardous
26  substance" means a substance, material, or waste defined as
27  hazardous or toxic, or any contaminant, pollutant, or
28  constituent thereof, or otherwise regulated by an
29  environmental law.
30         (7)  This section applies to any estate admitted to
31  probate on or after July 1, 1995.
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  1         Section 137.  Section 733.613, Florida Statutes, is
  2  amended to read:
  3         733.613  Personal representative's right to sell real
  4  property.--
  5         (1)  When a personal representative of an a decedent
  6  dying intestate estate, or whose testator has not conferred
  7  upon him or her a power of sale or whose testator has granted
  8  a power of sale but the his or her power is so limited by the
  9  will or by operation of law that it cannot be conveniently
10  exercised, shall consider that it is for the best interest of
11  the estate and of those interested in it that real property be
12  sold, the personal representative may sell it at public or
13  private sale.  No title shall pass until the sale is
14  authorized or confirmed by the court authorizes or confirms
15  the sale.  Petition for authorization or confirmation of sale
16  shall set forth the reasons for the sale, a description of the
17  property sold or to be sold, and the price and terms of the
18  sale. Except when interested persons have joined in the
19  petition for sale of real property or have consented to the
20  sale, notice of the petition shall be given. No bona fide
21  purchaser shall be required to examine any proceedings before
22  the order of sale.
23         (2)  When a decedent's will confers specific power to
24  sell or mortgage real property or a general power to sell any
25  asset of the estate, the personal representative may sell,
26  mortgage, or lease, without authorization or confirmation of
27  court, any real property of the estate or any interest therein
28  for cash or credit, or for part cash and part credit, and with
29  or without security for unpaid balances.  The sale, mortgage,
30  or lease need not be justified by a showing of necessity, and
31  the sale pursuant to power of sale shall be valid.
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  1         (3)  In a sale or mortgage which occurs under a
  2  specific power to sell or mortgage real property, or under a
  3  court order authorizing or confirming that act, the purchaser
  4  or lender takes title free of claims of creditors of the
  5  estate and entitlements of estate beneficiaries, except
  6  existing mortgages or other liens against real property are
  7  not affected.
  8         Section 138.  Section 733.614, Florida Statutes, is
  9  amended to read:
10         733.614  Powers and duties of successor personal
11  representative.--A successor personal representative has the
12  same power and duty as the original personal representative to
13  complete the administration and distribution of the estate as
14  expeditiously as possible, but he or she shall not exercise
15  any power made personal to the personal representative named
16  in the will without court approval.
17         Section 139.  Section 733.615, Florida Statutes, is
18  amended to read:
19         733.615  Joint personal representatives; when joint
20  action required.--
21         (1)  If two or more persons are appointed joint
22  personal representatives, and unless the will provides
23  otherwise, the concurrence of all joint personal
24  representatives appointed pursuant to a will or codicil
25  executed prior to October 1, 1987, or appointed to administer
26  an intestate estate of a decedent who died prior to October 1,
27  1987, or of a majority of joint personal representatives
28  appointed pursuant to a will or codicil executed on or after
29  October 1, 1987, or appointed to administer an the intestate
30  estate of a decedent dying on or after October 1, 1987, is
31  required on all acts connected with the administration and
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  1  distribution of the estate.  This restriction does not apply
  2  when any joint personal representative receives and receipts
  3  for property due the estate, when the concurrence required
  4  under this subsection cannot readily be obtained in the time
  5  reasonably available for emergency action necessary to
  6  preserve the estate, or when a joint personal representative
  7  has been delegated to act for the others.
  8         (2)  Where action by a majority of the joint personal
  9  representatives appointed is authorized, a joint personal
10  representative who has not joined in exercising a power is not
11  liable to the beneficiaries or to others for the consequences
12  of the exercise, and a dissenting joint personal
13  representative is not liable for the consequences of an action
14  act in which the dissenting personal representative he or she
15  joins at the direction of the majority of the joint personal
16  representatives, if the dissent is he or she expressed his or
17  her dissent in writing to the other any of his or her joint
18  personal representatives at or before the time of the action
19  joinder.
20         (3)  A person dealing with a joint personal
21  representative without actual knowledge that joint personal
22  representatives have been appointed or if advised by a the
23  joint personal representative with whom he or she deals that
24  the joint personal representative has authority to act alone
25  for any of the reasons mentioned in subsection (1) is as fully
26  protected in dealing with that joint personal representative
27  as if that joint personal representative possessed and
28  properly exercised the power he or she purports to exercise.
29         Section 140.  Section 733.616, Florida Statutes, is
30  amended to read:
31
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  1         733.616  Powers of surviving personal
  2  representatives.--Unless otherwise provided by the terms of
  3  the will or a court order otherwise provide, every power
  4  exercisable by joint personal representatives may be exercised
  5  by the one or more remaining after the appointment of one or
  6  more is terminated., and If one or more, but not all,
  7  nominated as joint personal representatives are not appointed,
  8  those appointed may exercise all the powers granted to those
  9  nominated incident to the office.
10         Section 141.  Section 733.617, Florida Statutes, is
11  amended to read:
12         733.617  Compensation of personal representative.--
13         (1)  A personal representative shall be entitled to a
14  commission payable from the estate assets without court order
15  as compensation for ordinary services.  The commission shall
16  be based on the compensable value of the estate, which is the
17  inventory value of the probate estate assets and the income
18  earned by the estate during administration As compensation for
19  its ordinary services, a personal representative shall be
20  entitled, without order of court unless otherwise stated, to a
21  commission payable from the estate assets.  Such commission
22  shall be based upon the probate estate's value as determined
23  finally for probate inventory purposes and as accounted for by
24  the personal representative, which value shall include all
25  property, real or personal, tangible or intangible, and all
26  income earned thereon.
27         (2)  A commission computed on the compensable value of
28  the estate is presumed to be reasonable compensation for a
29  personal representative in formal administration Upon the
30  probate estate's value as defined in subsection (1), such
31  commission shall be computed as follows:
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  1         (a)  At the rate of 3 percent for the first $1 million.
  2         (b)  At the rate of 2.5 percent for all above $1
  3  million and not exceeding $5 million.
  4         (c)  At the rate of 2 percent for all above $5 million
  5  and not exceeding $10 million.
  6         (d)  At the rate of 1.5 percent for all above $10
  7  million.
  8         (3)  In addition to the previously described aforesaid
  9  commission, a personal representative shall be allowed such
10  further compensation as is the court may deem just and
11  reasonable for any extraordinary services including, but not
12  limited to:
13         (a)  The sale of real or personal property.
14         (b)  The conduct of litigation on behalf of or against
15  the estate.
16         (c)  Involvement in proceedings for the adjustment or
17  payment of any taxes.
18         (d)  The carrying on of the decedent's business.
19         (e)  Dealing with protected homestead.
20         (f)(e)  Any other special services which may be
21  necessary for the personal representative to perform.
22         (4)  If the a decedent's will provides that a personal
23  representative's compensation shall be based upon specific
24  criteria, other than a general reference to commissions
25  allowed by law or words or similar import, including, but not
26  limited to, rates, amounts, commissions, or reference to the
27  personal representative's regularly published schedule of fees
28  in effect at the decedent's date of death, or words of similar
29  import, then a personal representative shall be entitled to
30  compensation in accordance with that such provision.  However,
31  except for such references in the a decedent's will to the
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  1  personal representative's regularly published schedule of fees
  2  in effect at the decedent's date of death, or words of similar
  3  import, if there is no written contract with the decedent
  4  regarding compensation, a personal representative may renounce
  5  the provisions contained in the will and be entitled to
  6  compensation under this section hereunder.  A personal
  7  representative may also renounce the its right to all or any
  8  part of the compensation.
  9         (5)  If the probate estate's compensable value as
10  defined in subsection (1) is $100,000 or more, and there are
11  two representatives, each personal representative is entitled
12  to the full commission allowed to a sole personal
13  representative.  If there are more than two personal
14  representatives and the probate estate's compensable value is
15  more than $100,000 or more, the compensation to which two
16  would be entitled must be apportioned among the personal
17  representatives.  The basis for such apportionment shall be
18  one full commission allowed to the personal representative who
19  has possession of and primary responsibility for
20  administration of the assets and one full commission among the
21  remaining personal representatives according to the services
22  rendered by each of them respectively.  If the probate
23  estate's compensable value is less than $100,000 and there is
24  more than one personal representative, then one full
25  commission allowed herein to a sole personal representative
26  must be apportioned among the personal representatives
27  according to the services rendered by each of them
28  respectively.
29         (6)  If the personal representative is a member of The
30  Florida Bar and has rendered legal services in connection with
31  the administration of the estate, then in addition to a fee as
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  1  personal representative, there also shall be allowed a fee for
  2  the legal services rendered.
  3         (7)  Upon petition of any interested person, the court
  4  may increase or decrease the compensation for ordinary
  5  services of the personal representative or award compensation
  6  for extraordinary services if the facts and circumstances of
  7  the particular administration warrant.  In determining
  8  reasonable compensation, the court shall consider all of the
  9  following factors, giving weight to each as it determines to
10  be appropriate The compensation for a personal representative
11  as set forth in subsections (2) and (3) may, upon petition of
12  any interested person, be increased or decreased by the court.
13  In determining whether to increase or decrease the
14  compensation for ordinary services, the court must consider
15  each of the following factors, giving each such weight as it
16  determines to be appropriate:
17         (a)  The promptness, efficiency, and skill with which
18  the administration was handled by the personal representative;
19         (b)  The responsibilities assumed by and the potential
20  liabilities of the personal representative;
21         (c)  The nature and value of the assets that are
22  affected by the decedent's death;
23         (d)  The benefits or detriments resulting to the estate
24  or interested persons its beneficiaries from the personal
25  representative's services;
26         (e)  The complexity or simplicity of the administration
27  and the novelty novelties of the issues presented;
28         (f)  The personal representative's participation in tax
29  planning for the estate and the estate's beneficiaries and in
30  tax return preparation, review, or approval;
31
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  1         (g)  The nature of the probate, nonprobate, and exempt
  2  assets,; the expenses of administration,; the liabilities of
  3  the decedent,; and the compensation paid to other
  4  professionals and fiduciaries;
  5         (h)  Any delay in payment of the compensation after the
  6  services were furnished; and
  7         (i)  Any other relevant factors.
  8         Section 142.  Section 733.6171, Florida Statutes, is
  9  amended to read:
10         733.6171  Compensation of attorney for the personal
11  representative.--
12         (1)  Attorneys for personal representatives shall be
13  entitled to reasonable compensation for their services payable
14  from the estate assets of the estate without court order.
15         (2)  The attorney, the personal representative, and
16  persons bearing the impact of the compensation may agree to
17  compensation determined in a different manner than provided in
18  this section. Compensation may also be determined in a
19  different manner than provided in this section if the manner
20  is disclosed to the parties bearing the impact of the
21  compensation and if no objection is made as provided for in
22  the Florida Probate Rules in the petition for discharge or
23  final accounting and there is no objection filed pursuant to
24  s. 733.901.
25         (3)  Compensation provided in the following schedule
26  for ordinary services of attorneys in formal estate
27  administration is presumed to be reasonable if based on the
28  compensable upon the inventory value of the estate, which is
29  the inventory value of the probate estate assets and the
30  income earned by the estate during the administration as
31  provided in the following schedule is presumed to be
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  1  reasonable compensation for attorneys in formal estate
  2  administration:
  3         (a)  One thousand five hundred dollars for estates
  4  having a value of $40,000 or less.
  5         (b)  An additional $750 for estates having a value of
  6  more than $40,000 and not exceeding $70,000.
  7         (c)  An additional $750 for estates having a value of
  8  more than $70,000 and not exceeding $100,000.
  9         (d)  For estates having a value in excess of $100,000,
10  at the rate of 3 percent on the next $900,000.
11         (e)  At the rate of 2.5 percent for all above $1
12  million and not exceeding $3 million.
13         (f)  At the rate of 2 percent for all above $3 million
14  and not exceeding $5 million.
15         (g)  At the rate of 1.5 percent for all above $5
16  million and not exceeding $10 million.
17         (h)  At the rate of 1 percent for all above $10
18  million.
19         (4)  In addition to the attorney's fees for ordinary
20  services, the attorney for the personal representative shall
21  be allowed further reasonable compensation for any
22  extraordinary service.  What is an extraordinary service may
23  vary depending on many factors, including the size of the
24  estate. Extraordinary services may include, but are not
25  limited to:
26         (a)  Involvement in a will contest, will construction,
27  a proceeding for determination of beneficiaries, a contested
28  claim, elective share proceeding, apportionment of estate
29  taxes, or any other adversarial proceeding or litigation by or
30  against the estate.
31
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  1         (b)  Representation of the personal representative in
  2  audit or any proceeding for adjustment, determination, or
  3  collection of any taxes.
  4         (c)  Tax advice on postmortem tax planning, including,
  5  but not limited to, disclaimer, renunciation of fiduciary
  6  commission, alternate valuation date, allocation of
  7  administrative expenses between tax returns, the QTIP or
  8  reverse QTIP election, allocation of GST exemption,
  9  qualification for Internal Revenue Code ss. 6166 and 303
10  privileges, deduction of last illness expenses, fiscal year
11  planning, distribution planning, asset basis considerations,
12  handling income or deductions in respect of a decedent,
13  valuation discounts, special use and other valuation, handling
14  employee benefit or retirement proceeds, prompt assessment
15  request, or request for release of personal liability for
16  payment of tax.
17         (d)  Review of estate tax return and preparation or
18  review of other tax returns required to be filed by the
19  personal representative.
20         (e)  Preparation of the estate's federal estate tax
21  return.  If this return is prepared by the attorney, a fee of
22  one-half of 1 percent up to a value of $10 million and
23  one-fourth of 1 percent on the value in excess of $10 million
24  of the gross estate as finally determined for federal estate
25  tax purposes, is presumed to be reasonable compensation for
26  the attorney for this service.  These fees shall include
27  services for routine audit of the return, not beyond the
28  examining agent level, if required.
29         (f)  Purchase, sale, lease, or encumbrance of real
30  property by the personal representative or involvement in
31  zoning, land use, environmental, or other similar matters.
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  1         (g)  Legal advice regarding carrying on of the
  2  decedent's business or conducting other commercial activity by
  3  the personal representative.
  4         (h)  Legal advice regarding claims for damage to the
  5  environment or related procedures.
  6         (i)  Legal advice regarding homestead status of real
  7  property or proceedings involving that status and services
  8  related to protected homestead.
  9         (j)  Involvement in fiduciary, employee, or attorney
10  compensation disputes.
11         (k)  Proceedings involving ancillary administration of
12  assets not subject to administration in this state.
13         (5)  Upon petition of any interested person, the court
14  may increase or decrease the compensation for ordinary
15  services of the attorney or award compensation for
16  extraordinary services if the facts and circumstances of the
17  particular administration warrant.  In determining reasonable
18  compensation, the court shall consider all of the following
19  factors, giving such weight to each as it determines may
20  determine to be appropriate:
21         (a)  The promptness, efficiency, and skill with which
22  the administration was handled by the attorney.
23         (b)  The responsibilities assumed by, and the potential
24  liabilities of, the attorney.
25         (c)  The nature and value of the assets that are
26  affected by the decedent's death.
27         (d)  The benefits or detriments resulting to the estate
28  or interested persons its beneficiaries from the attorney's
29  services.
30         (e)  The complexity or simplicity of the administration
31  and the novelty of issues presented.
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  1         (f)  The attorney's participation in tax planning for
  2  the estate and the estate's beneficiaries and tax return
  3  preparation, or review, or and approval.
  4         (g)  The nature of the probate, nonprobate, and exempt
  5  assets, the expenses of administration, the and liabilities of
  6  the decedent, and the compensation paid to other professionals
  7  and fiduciaries.
  8         (h)  Any delay in payment of the compensation after the
  9  services were furnished.
10         (i)  Any other relevant factors.
11         (6)  The court may determine reasonable attorney's
12  compensation without receiving expert testimony.  Any party
13  may offer expert testimony after notice to interested persons.
14  If expert testimony is offered, an expert witness fee may be
15  awarded by the court and paid from the assets of the estate.
16  The court may, in its discretion, direct from what part of the
17  estate it shall be paid.
18         (6)(7)  If a separate written agreement regarding
19  compensation exists between the attorney and the decedent, the
20  attorney shall furnish a copy to the personal representative
21  prior to commencement of employment, and, if employed, shall
22  promptly file and serve a copy on all interested persons.
23  Neither a separate agreement nor a provision in the will
24  suggesting or directing that the personal representative to
25  retain a specific attorney will obligate the personal
26  representative to employ the attorney or obligate the attorney
27  to accept the representation, but if the attorney who is a
28  party to the agreement or who drafted the will is employed,
29  the compensation paid shall not exceed the compensation
30  provided in the agreement or in the will.
31
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  1         (8)  Court proceedings to determine compensation, if
  2  required, are a part of the estate administration process, and
  3  the costs, including fees for the personal representative's
  4  attorney, shall be determined by the court and paid from the
  5  assets of the estate unless the court finds the request for
  6  attorney's fees to be substantially unreasonable. The court
  7  shall direct from which part of the estate they shall be paid.
  8         (9)  The amount and manner of determining compensation
  9  for attorneys for personal representatives must be disclosed
10  in the final accounting, unless the disclosure is waived in
11  writing signed by the parties bearing the impact of the
12  compensation and filed with the court.  No such waiver shall
13  be valid unless it contains language declaring that the
14  waiving party has actual knowledge of the amount and manner of
15  determining such compensation and, in addition, expressly
16  acknowledging either one of the following two elements:
17         (a)  That the waiving party has agreed to the amount
18  and manner of determining such compensation and is waiving any
19  objections to payment of such compensation; or
20         (b)  That the waiving party has the right under
21  subsection (5) to petition the court to decrease such
22  compensation and is waiving that right.
23
24  The requirements of this subsection shall not apply if the
25  full amount of such compensation has previously been
26  determined by order of the court after notice.  A waiver of
27  the final accounting shall not be effective if it does not
28  meet the requirements of this subsection.
29         (10)  This section shall apply to estates in which an
30  order of discharge has not been entered prior to its effective
31
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  1  date but not to those estates in which attorney's fees have
  2  previously been determined by order of court after notice.
  3         Section 143.  Section 733.6175, Florida Statutes, is
  4  amended to read:
  5         733.6175  Proceedings for review of employment of
  6  agents and compensation of personal representatives and
  7  employees of estate.--
  8         (1)  The court may review the propriety of the
  9  employment of any person employed by the personal
10  representative and the reasonableness of any compensation paid
11  to that person or to the personal representative.
12         (2)  Court proceedings to determine reasonable
13  compensation of the personal representative or any person
14  employed by the personal representative, if required, are a
15  part of the estate administration process, and the costs,
16  including attorneys' fees, of the person assuming the burden
17  of proof of propriety of the employment and reasonableness of
18  the compensation shall be determined by the court and paid
19  from the assets of the estate unless the court finds the
20  requested compensation to be substantially unreasonable. The
21  court shall direct from which part of the estate the
22  compensation shall be paid.
23         (3)  After notice to all affected interested persons
24  and upon petition of an interested person bearing all or part
25  of the impact of the payment of compensation to the personal
26  representative or any person employed by him or her, the
27  propriety of such employment and the reasonableness of such
28  compensation or payment may be reviewed by the court. The
29  burden of proof of propriety of the such employment and the
30  reasonableness of the compensation shall be upon the personal
31  representative and the person employed by him or her. Any
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  1  person who is determined to have received excessive
  2  compensation from an estate for services rendered may be
  3  ordered to make appropriate refunds.
  4         (4)  The court may determine reasonable compensation
  5  for the personal representative or any person employed by the
  6  personal representative without receiving expert testimony.
  7  Any party may offer expert testimony after notice to
  8  interested persons. If expert testimony is offered, a
  9  reasonable expert witness fee shall be awarded by the court
10  and paid from the assets of the estate. The court shall direct
11  from what part of the estate the fee shall be paid.
12         Section 144.  Section 733.619, Florida Statutes, is
13  amended to read:
14         733.619  Individual liability of personal
15  representative.--
16         (1)  Unless otherwise provided in the contract, a
17  personal representative is not individually liable on a
18  contract, except a contract for attorney's fee, properly
19  entered into as in his or her fiduciary capacity in the
20  administration of the estate unless the personal
21  representative fails to reveal that his or her representative
22  capacity and identify the estate in the contract.
23         (2)  A personal representative is individually liable
24  for obligations arising from ownership or control of the
25  estate or for torts committed in the course of administration
26  of the estate only if he or she is personally at fault.
27         (3)  Claims based on contracts, except a contract for
28  attorney's fee, entered into by a personal representative as a
29  fiduciary in his or her fiduciary capacity, on obligations
30  arising from ownership or control of the estate, or on torts
31  committed in the course of estate administration, may be
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  1  asserted against the estate by proceeding against the personal
  2  representative in that his or her fiduciary capacity, whether
  3  or not the personal representative is individually liable
  4  therefor.
  5         (4)  Issues of liability as between the estate and the
  6  personal representative individually may be determined in a
  7  proceeding for accounting, surcharge, or indemnification, or
  8  other appropriate proceeding.
  9         Section 145.  Section 733.701, Florida Statutes, is
10  amended to read:
11         733.701  Notifying creditors.--Unless creditors' claims
12  are otherwise barred by s. 733.710 the proceedings are under
13  chapter 734 or chapter 735, every personal representative
14  shall cause notice to creditors of administration to be
15  published and served under s. 733.2121 733.212.
16         Section 146.  Section 733.702, Florida Statutes, is
17  amended to read:
18         733.702  Limitations on presentation of claims.--
19         (1)  If not barred by s. 733.710, no claim or demand
20  against the decedent's estate that arose before the death of
21  the decedent, including claims of the state and any of its
22  subdivisions, even if the claims are unmatured, contingent,
23  whether due or not, direct or contingent, or liquidated or
24  unliquidated; no claim for funeral or burial expenses; no
25  claim for personal property in the possession of the personal
26  representative; and no claim for damages, including, but not
27  limited to, an action founded on fraud or another wrongful act
28  or omission of the decedent, is binding on the estate, on the
29  personal representative, or on any beneficiary unless filed in
30  the probate proceeding within the later of 3 months after the
31  time of the first publication of the notice to creditors of
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  1  administration or, as to any creditor required to be served
  2  with a copy of the notice to creditors of administration, 30
  3  days after the date of service of such copy of the notice on
  4  the creditor, even though the personal representative has
  5  recognized the claim or demand by paying a part of it or
  6  interest on it or otherwise. The personal representative may
  7  settle in full any claim without the necessity of the claim
  8  being filed when the settlement has been approved by the
  9  interested persons beneficiaries adversely affected according
10  to the priorities provided in this code and when the
11  settlement is made within the statutory time for filing
12  claims; or, within 3 months after the first publication of the
13  notice of administration, he or she may file a proof of claim
14  of all claims he or she has paid or intends to pay.
15         (2)  No cause of action heretofore or hereafter
16  accruing, including, but not limited to, an action founded
17  upon fraud or other wrongful act or omission, shall survive
18  the death of the person against whom the claim may be made,
19  whether or not an action is pending at the death of the person
20  or not, unless a the claim is filed within the time periods
21  set forth in this part.
22         (3)  Any claim not timely filed as provided in this
23  section is barred even though no objection to the claim is
24  filed on the grounds of timeliness or otherwise unless the
25  court extends the time in which the claim may be filed.  Such
26  An extension may be granted only upon grounds of fraud,
27  estoppel, or insufficient notice of the claims period.  No
28  independent action or declaratory action may be brought upon a
29  claim which was not timely filed unless such an extension has
30  been granted by the court.  If the personal representative or
31  any other interested person serves on the creditor a notice to
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  1  file a petition for an extension or be forever barred, the
  2  creditor shall be limited to a period of 30 days from the date
  3  of service of the notice in which to file a petition for
  4  extension.
  5         (4)  Nothing in this section affects or prevents:
  6         (a)  A proceeding to enforce any mortgage, security
  7  interest, or other lien on property of the decedent.
  8         (b)  To the limits of casualty insurance protection
  9  only, any proceeding to establish liability that of the
10  decedent or the personal representative for which he or she is
11  protected by the casualty insurance.
12         (c)  The filing of a claim by the Department of Revenue
13  subsequent to the expiration of the time for filing claims
14  provided in subsection (1), provided it does so file within 30
15  days after the service of the inventory by the personal
16  representative on the department or, in the event an amended
17  or supplementary inventory has been prepared, within 30 days
18  after the service of the amended or supplementary inventory by
19  the personal representative on the department.
20         (c)(d)  The filing of a cross-claim or counterclaim
21  against the estate in an action instituted by the estate;
22  however, no recovery on such a cross-claim or counterclaim
23  shall exceed the estate's recovery in that such an action.
24         (5)  The Department of Revenue may file a claim against
25  the estate of a decedent for taxes due under chapter 199 after
26  the expiration of the time for filing claims provided in
27  subsection (1), if the department files its claim within 30
28  days after the service of the inventory.  Upon  filing of the
29  estate tax return with the department as provided in s.
30  198.13, or to the extent the inventory or estate tax return is
31  amended or supplemented, the department has the right to file
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  1  a claim or to amend its previously filed claim within 30 days
  2  after service of the estate tax return, or an amended or
  3  supplemented inventory or filing of an amended or supplemental
  4  estate tax return, as to the additional information disclosed.
  5         (6)(5)  Nothing in this section shall extend the
  6  limitations period set forth in s. 733.710.
  7         Section 147.  Subsection (2) of section 733.703,
  8  Florida Statutes, is amended to read:
  9         733.703  Form and manner of presenting claim.--
10         (2)  Within the time allowed by s. 733.702, the
11  personal representative may file a proof of claim of all
12  claims he or she has paid or intends to pay. A claimant whose
13  claim is listed in a personal representative's proof of claim
14  filed within 3 months after the first publication of the
15  notice of administration shall be deemed to have filed a
16  statement of the claim listed.  Except as provided otherwise
17  in this part, the claim shall be treated for all other
18  purposes as if it had been filed by the claimant had filed it.
19         Section 148.  Section 733.704, Florida Statutes, is
20  amended to read:
21         733.704  Amendment of claims.--If a bona fide attempt
22  to file a claim is made by a creditor but the claim is
23  defective as to form, the court may permit the amendment of
24  the claim at any time.
25         Section 149.  Section 733.705, Florida Statutes, is
26  amended to read:
27         733.705  Payment of and objection to claims.--
28         (1)  The personal representative shall pay all claims
29  within 1 year from the date of first publication of notice to
30  creditors of administration, provided that the time shall be
31  extended with respect to claims in litigation, unmatured
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  1  claims, and contingent claims for the period necessary to
  2  dispose of those such claims pursuant to subsections (4), (5),
  3  (6), and (7), and (8).  The court may extend the time for
  4  payment of any claim upon a showing of good cause.  No
  5  personal representative shall be compelled to pay the debts of
  6  the decedent until after the expiration of 5 months from the
  7  first publication of notice to creditors of administration.
  8  If any person brings an action against a personal
  9  representative within the 5 months on any claim to which the
10  personal representative has not filed an no objection, the
11  plaintiff shall not receive any costs or attorneys' fees if he
12  or she prevails, nor shall the judgment change the class of
13  the claim for payment under this code.
14         (2)  On or before the expiration of 4 months from the
15  first publication of notice to creditors of administration or
16  within 30 days from the timely filing or amendment of a claim,
17  whichever occurs later, a personal representative or other
18  interested person may file a written objection to a claim.  An
19  objection to a claim shall contain a statement that the
20  claimant is limited to a period of 30 days from the date of
21  service of the objection within which to bring an action on
22  the claim as provided in subsection (4).  The failure to
23  include such a statement in the objection shall not affect the
24  validity of the objection but may be considered as good cause
25  for extending the time for filing an action or proceeding
26  after the objection is filed.  If an objection is filed, the
27  person filing it shall serve a copy of the objection as
28  provided by the Florida Probate Rules by registered or
29  certified mail to the address of the claimant or the
30  claimant's attorney as shown on the claim or by delivery to
31  the claimant to whose claim the person objects or the
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  1  claimant's attorney of record, if any, not later than 10 days
  2  after the objection has been filed, and also on the personal
  3  representative if the objection is filed by any interested
  4  person other than the personal representative.  The failure to
  5  serve a copy of the objection constitutes an abandonment of
  6  the objection. For good cause, the court may extend the time
  7  for filing or serving an objection to any claim or may extend
  8  the time for serving the objection.  The extension of time
  9  shall be granted only after notice. Objection to a claim
10  constitutes an objection to an amendment of that claim unless
11  the objection is withdrawn.
12         (3)  If the objection is filed by a person other than
13  the personal representative, the personal representative may
14  apply to the court for an order relieving him or her from the
15  obligation to defend the estate in an independent action or
16  for the appointment of the objector as administrator ad litem
17  to defend the action. Fees for the attorney for the
18  administrator ad litem may be awarded as provided in s.
19  733.106(3). If costs or attorney's fees are awarded from or
20  against the estate, the probate court may charge or apportion
21  that award as provided in s. 733.106(4).
22         (4)(3)  An objection by an interested person to a
23  personal representative's proof of claim shall state the
24  particular item or items to which the interested person
25  objects and shall be filed and served as provided in
26  subsection (2). Issues of liability as between the estate and
27  the personal representative individually for items paid by the
28  personal representative and thereafter listed in a personal
29  representative's proof of claim shall be determined in the
30  estate administration proceeding, in a proceeding for
31  accounting or, surcharge, or in another other appropriate
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  1  proceeding, whether or not an objection has been filed.  If an
  2  objection to an item listed as to be paid in a personal
  3  representative's proof of claim is filed and served, and the
  4  personal representative has not paid the item, the other
  5  subsections of this section shall apply as if a claim for the
  6  item had been filed by the claimant; but if the personal
  7  representative has paid the claim after listing it as to be
  8  paid, issues of liability as between the estate and the
  9  personal representative individually shall be determined in
10  the manner provided for an item listed as paid.
11         (5)(4)  The claimant is limited to a period of 30 days
12  from the date of service of an objection within which to bring
13  an independent action upon the claim, or a declaratory action
14  to establish the validity and amount of an unmatured claim
15  which is not yet due but which is certain to become due in the
16  future, or a declaratory action to establish the validity of a
17  contingent claim upon which no cause of action has accrued on
18  the date of service of an objection and that may or may not
19  become due in the future, unless an extension of this time is
20  agreed to by the personal representative in writing before it
21  expires. For good cause, the court may extend the time for
22  filing an action or proceeding after objection is filed. The
23  extension of time shall be granted only after notice. No
24  action or proceeding on the claim may shall be brought against
25  the personal representative after the time limited above, and
26  the any such claim is thereafter forever barred without any
27  court order. If an objection is filed to the claim of any
28  creditor and an action is brought by the creditor brings an
29  action to establish the his or her claim, a judgment
30  establishing the claim shall give it no priority over claims
31  of the same class to which it belongs.
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  1         (6)(5)  A claimant may bring an independent action or
  2  declaratory action upon a claim which was not timely filed
  3  pursuant to s. 733.702(1) only if the claimant has been
  4  granted an extension of time to file the claim pursuant to s.
  5  733.702(3).
  6         (7)(6)  If an unmatured claim has not become due before
  7  the time for distribution of an estate, the personal
  8  representative may prepay the full amount of principal plus
  9  accrued interest due on the claim, without discount and
10  without penalty, regardless of any prohibition against
11  prepayment or provision for penalty in any instrument on which
12  the claim is founded.  If the claim is not prepaid, no order
13  of discharge may be entered until the creditor and personal
14  representative have filed an agreement disposing of the claim,
15  or in the absence of an agreement until the court provides for
16  payment by one of the following methods:
17         (a)  Requiring the personal representative to reserve
18  such assets as the court determines to be adequate to pay the
19  claim when it becomes due; in fixing the amount to be
20  reserved, the court may determine the value of any security or
21  collateral to which the creditor may resort for payment of the
22  claim and may direct the reservation, if necessary, of
23  sufficient assets to pay the claim or to pay the difference
24  between the value of any security or collateral and the amount
25  necessary to pay the claim. If the estate is insolvent, the
26  court may direct a proportionate amount to be reserved.  The
27  court shall direct that the amount reserved be retained by the
28  personal representative until the time that the claim becomes
29  due, and that so much of the reserved amount as is not used
30  for payment be distributed thereafter according to law;
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  1         (b)  Requiring that the claim be adequately secured by
  2  a mortgage, pledge, bond, trust, guaranty, or other security,
  3  as may be determined by the court, the security to remain in
  4  effect until the time that the claim becomes due, and that so
  5  much of the security or collateral as is not needed for
  6  payment be distributed thereafter according to law; or
  7         (c)  Making provisions such other provision for the
  8  disposition or satisfaction of the claim as are is equitable,
  9  and in a manner so as not to delay unreasonably the closing of
10  the estate.
11         (8)(7)  If no cause of action has accrued on a
12  contingent claim before the time for distribution of an
13  estate, no order of discharge may be entered until the
14  creditor and the personal representative have filed an
15  agreement disposing of the claim or, in the absence of an such
16  agreement, until:
17         (a)  The court determines that the claim is adequately
18  secured or that it has no value,
19         (b)  Three months from the date on which a cause of
20  action accrues upon the claim, provided that no action on the
21  claim is then pending,
22         (c)  Five years from the date of first publication of
23  notice to creditors of administration, or
24         (d)  The court provides for payment of the claim upon
25  the happening of the contingency by one of the methods
26  described in paragraph (a), paragraph (b), or paragraph (c) of
27  subsection (7) (6),
28
29  whichever occurs first. No action or proceeding on the claim
30  may be brought against the personal representative after the
31  time limited above, and the claim is barred without court
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  1  order. If an objection is filed to the claim of any creditor
  2  and the creditor brings an action to establish the claim, a
  3  judgment establishing the claim shall give it no priority over
  4  claims of the same class to which it belongs No action or
  5  proceeding may be brought against the personal representative
  6  on the claim after the time limited above, and any such claim
  7  shall thereafter be forever barred without order of court.  If
  8  an action is brought within the time limited above, a judgment
  9  establishing the claim shall give it no priority over claims
10  of the same class to which it belongs.
11         (9)(8)  No interest shall be paid by the personal
12  representative or allowed by the court on a claim until the
13  expiration of 5 calendar months from the first publication of
14  the notice of administration, unless the claim is founded on a
15  written obligation of the decedent providing for the payment
16  of interest. Interest shall be paid by the personal
17  representative on written obligations of the decedent
18  providing for the payment of interest. On all other claims,
19  interest shall be allowed and paid beginning 5 months from the
20  first publication of the notice to creditors of
21  administration.
22         (10)(9)  The court may determine all issues concerning
23  claims or matters not requiring trial by jury.
24         (11)(10)  An order for extension of time authorized
25  under this section may be entered only in the estate
26  administration proceeding.
27         Section 150.  Section 733.707, Florida Statutes, is
28  amended to read:
29         733.707  Order of payment of expenses and
30  obligations.--
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  1         (1)  The personal representative shall pay the expenses
  2  of the administration and obligations of the decedent's estate
  3  in the following order:
  4         (a)  Class 1.--Costs, expenses of administration, and
  5  compensation of personal representatives and their attorneys
  6  attorneys' fees and attorneys fees awarded under s.
  7  733.106(3).
  8         (b)  Class 2.--Reasonable funeral, interment, and grave
  9  marker expenses, whether paid by a guardian under s.
10  744.441(16), the personal representative, or any other person,
11  not to exceed the aggregate of $6,000.
12         (c)  Class 3.--Debts and taxes with preference under
13  federal law, and claims pursuant to ss. 409.9101 and 414.28.
14         (d)  Class 4.--Reasonable and necessary medical and
15  hospital expenses of the last 60 days of the last illness of
16  the decedent, including compensation of persons attending the
17  decedent him or her.
18         (e)  Class 5.--Family allowance.
19         (f)  Class 6.--Arrearage from court-ordered child
20  support.
21         (g)  Class 7.--Debts acquired after death by the
22  continuation of the decedent's business, in accordance with s.
23  733.612(22), but only to the extent of the assets of that
24  business.
25         (h)  Class 8.--All other claims, including those
26  founded on judgments or decrees rendered against the decedent
27  during the decedent's lifetime, and any excess over the sums
28  allowed in paragraphs (b) and (d).
29         (2)  After paying any preceding class, if the estate is
30  insufficient to pay all of the next succeeding class, the
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  1  creditors of the latter class shall be paid ratably in
  2  proportion to their respective claims.
  3         (3)  Any portion of a trust with respect to which a
  4  decedent who is the grantor has at the decedent's death a
  5  right of revocation, as defined in paragraph (e), either alone
  6  or in conjunction with any other person, is liable for the
  7  expenses of the administration and obligations of the
  8  decedent's estate and enforceable claims of the decedent's
  9  creditors to the extent the decedent's estate is insufficient
10  to pay them as provided in s. 733.607(2).
11         (a)  For purposes of this subsection, any trusts
12  established as part of, and all payments from, either an
13  employee annuity described in s. 403 of the Internal Revenue
14  Code of 1986, as amended, an Individual Retirement Account, as
15  described in s. 408 of the Internal Revenue Code of 1986, as
16  amended, a Keogh (HR-10) Plan, or a retirement or other plan
17  established by a corporation which is qualified under s. 401
18  of the Internal Revenue Code of 1986, as amended, shall not be
19  considered a trust over which the decedent has a right of
20  revocation.
21         (b)  For purposes of this subsection, any trust
22  described in s. 664 of the Internal Revenue Code of 1986, as
23  amended, shall not be considered a trust over which the
24  decedent has a right of revocation.
25         (c)  This subsection shall not impair any rights an
26  individual has under a qualified domestic relations order as
27  that term is defined in s. 414(p) of the Internal Revenue Code
28  of 1986, as amended.
29         (d)  For purposes of this subsection, property held or
30  received by a trust to the extent that the property would not
31  have been subject to claims against the decedent's estate if
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  1  it had been paid directly to a trust created under the
  2  decedent's will or other than to the decedent's estate, or
  3  assets received from any trust other than a trust described in
  4  this subsection, shall not be deemed assets of the trust
  5  available to for the payment of the expenses of administration
  6  of and enforceable claims against the decedent's estate.
  7         (e)  For purposes of this subsection, a "right of
  8  revocation" is a power retained by the decedent, held in any
  9  capacity, to:
10         1.  Amend or revoke the trust and revest the principal
11  of the trust in the decedent; or
12         2.  Withdraw or appoint the principal of the trust to
13  or for the decedent's benefit.
14         Section 151.  Section 733.708, Florida Statutes, is
15  amended to read:
16         733.708  Compromise.--When a proposal is made to
17  compromise any claim, whether in suit or not, by or against
18  the estate of a decedent or to compromise any question
19  concerning the distribution of a decedent's estate, the court
20  may enter an order authorizing the compromise if satisfied
21  that the compromise will be for the best interest of the
22  interested persons beneficiaries.  The order shall relieve the
23  personal representative of liability or responsibility for the
24  compromise. Claims against the estate may not be compromised
25  until after the time for filing objections to claims has
26  expired.  Notice must be given to those who have filed
27  objection to the claim proposed to be compromised.
28         Section 152.  Subsection (1) of section 733.710,
29  Florida Statutes, is amended to read:
30         733.710  Limitations on claims against estates.--
31
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  1         (1)  Notwithstanding any other provision of the code, 2
  2  years after the death of a person, neither the decedent's
  3  estate, the personal representative, (if any), nor the
  4  beneficiaries shall be liable for any claim or cause of action
  5  against the decedent, whether or not letters of administration
  6  have been issued, except as provided in this section.
  7         Section 153.  Section 733.801, Florida Statutes, is
  8  amended to read:
  9         733.801  Delivery of devises and distributive shares.--
10         (1)  No personal representative shall be required to
11  pay or deliver any devise or distributive share or to
12  surrender possession of any land to any beneficiary until the
13  expiration of 5 months from the granting of letters.
14         (2)  Except as otherwise provided in the will, the
15  personal representative shall pay as an expense of
16  administration the reasonable expenses of storage, insurance,
17  packing, and delivery of tangible personal property to a
18  beneficiary.
19         Section 154.  Subsections (1) and (2) of section
20  733.802, Florida Statutes, are amended to read:
21         733.802  Proceedings for compulsory payment of devises
22  or distributive interest.--
23         (1)  Before final distribution, no personal
24  representative shall be compelled:
25         (a)  To pay a devise in money before the final
26  settlement of the personal representative's his or her
27  accounts,
28         (b)  To deliver specific personal property devised that
29  may have come into his or her hands, unless the personal
30  property is exempt personal property,
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  1         (c)  To pay all or any part of a distributive share in
  2  the personal estate of a decedent, or
  3         (d)  To surrender land to any beneficiary,
  4
  5  unless the beneficiary establishes files a petition setting
  6  forth the facts that entitle him or her to relief and stating
  7  that the property will not be required for the payment of
  8  debts, family allowance, estate and inheritance taxes, claims,
  9  elective share of the surviving spouse, charges, or expenses
10  of administration or to provide for providing funds for
11  contribution or to enforce enforcing equalization in case of
12  advancements.
13         (2)  An order directing the surrender of real property
14  or the delivery of personal property by the personal
15  representative to the beneficiary shall describe the property
16  to be surrendered or delivered.  The order shall be conclusive
17  in favor of bona fide purchasers for value from the
18  beneficiary or distributee as against the personal
19  representative and all other persons claiming by, through,
20  under, or against the decedent or the decedent's estate.
21         Section 155.  Section 733.803, Florida Statutes, is
22  amended to read:
23         733.803  Encumbered property; liability for
24  payment.--The specific devisee of any encumbered property
25  shall be entitled to have the encumbrance on devised property
26  paid at the expense of the residue of the estate only when the
27  will shows that such an intent.  A general direction in the
28  will to pay debts does not show that such an intent.
29         Section 156.  Section 733.805, Florida Statutes, is
30  amended to read:
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  1         733.805  Order in which assets abate are
  2  appropriated.--
  3         (1)  If a testator makes provision by his or her will,
  4  or designates the Funds or property designated by the will
  5  shall to be used, to pay for the payment of debts, estate and
  6  inheritance taxes, family allowance, exempt property, elective
  7  share charges, expenses of administration, and devises, to the
  8  extent the funds or property are they shall be paid out of the
  9  funds or from the property or proceeds as provided by the will
10  so far as sufficient.  If no provision is made or the
11  designated any fund or property designated, or if it is
12  insufficient, the funds and property of the estate shall be
13  used for these such purposes, except as otherwise provided in
14  s. 733.817 with respect to estate, inheritance, and other
15  death taxes, and to raise the shares of a pretermitted spouse
16  and children, except as otherwise provided in subsections (3)
17  and (4), in the following order:
18         (a)  Property passing by intestacy not disposed of by
19  the will.
20         (b)  Property devised to the residuary devisee or
21  devisees.
22         (c)  Property not specifically or demonstratively
23  devised.
24         (d)  Property specifically or demonstratively devised.
25         (2)  Demonstrative devises shall be classed as general
26  devises upon the failure or insufficiency of funds or property
27  out of which payment should be made, to the extent of the
28  insufficiency.  Devises to the decedent's surviving spouse,
29  given in satisfaction of, or instead of, the surviving
30  spouse's statutory rights in the estate, shall not abate until
31  other devises of the same class are exhausted.  Devises given
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  1  for a valuable consideration shall abate with other devises of
  2  the same class only to the extent of the excess over the
  3  amount of value of the consideration until all others of the
  4  same class are exhausted. Except as herein provided, devises
  5  shall abate equally and ratably and without preference or
  6  priority as between real and personal property.  When property
  7  that has been specifically devised or charged with a devise is
  8  sold or used taken by the personal representative, other
  9  devisees shall contribute according to their respective
10  interests to the devisee whose devise has been sold or used
11  taken., and before distribution the court shall determine The
12  amounts of the respective contributions shall be determined by
13  the court, and they shall be paid or withheld before
14  distribution is made.
15         (3)  Section 733.817 shall be applied before this
16  section is applied.
17         (4)  In determining the contribution required under s.
18  733.607(2), subsections (1)-(3) of this section and s.
19  737.3054(2) shall be applied as if the beneficiaries of the
20  estate and the beneficiaries of a trust described in s.
21  733.707(3), other than the estate or trust itself, were taking
22  under a common instrument.
23         Section 157.  Section 733.806, Florida Statutes, is
24  amended to read:
25         733.806  Advancement.--If a person dies intestate as to
26  all his or her estate, property that the decedent gave during
27  in his or her lifetime to an heir is treated as an advancement
28  against the heir's latter's share of the estate only if
29  declared in a contemporaneous writing by the decedent or
30  acknowledged in writing by the heir. The property advanced
31  shall be valued at the time the heir came into possession or
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  1  enjoyment of the property or at the time of the death of the
  2  decedent, whichever first occurs. If the recipient of the
  3  property does not survive the decedent, the property shall not
  4  be taken into account in computing the intestate share to be
  5  received by the recipient's descendants unless the declaration
  6  or acknowledgment provides otherwise.
  7         Section 158.  Subsections (3), (4), (5), and (6) of
  8  section 733.808, Florida Statutes, are amended to read:
  9         733.808  Death benefits; disposition of proceeds.--
10         (3)  In the event no trustee makes proper claim to the
11  proceeds from the insurance company or other obligor within a
12  period of 6 months after the date of the death of the insured,
13  employee, or annuitant, or if satisfactory evidence is
14  furnished to the insurance company or such obligor within that
15  period that there is, or will be, no trustee to receive the
16  proceeds, payment shall be made by the insurance company or
17  obligor to the personal representative of the person making
18  the such designation, unless otherwise provided by agreement
19  with the insurer or other obligor during the lifetime of the
20  insured, employee, or annuitant.
21         (4)  Death benefits payable as provided in subsection
22  (1), subsection (2), or subsection (3), unless paid to a
23  personal representative under the provisions of subsection
24  (3), shall not be deemed to be part of the decedent's estate
25  of the testator or an intestate estate, and shall not be
26  subject to any obligation to pay the expenses of the
27  administration and obligations of the decedent's estate or for
28  contribution required from a trust under s. 733.607(2)
29  transfer or estate taxes, debts, or other charges enforceable
30  against the estate to any greater extent than if the such
31
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  1  proceeds were payable directly to the beneficiaries named in
  2  the trust.
  3         (5)  The death benefits so held in trust may be
  4  commingled with any other assets that may properly come into
  5  the trust.
  6         (6)  Nothing in this section shall affect the validity
  7  of any designation of a beneficiary of proceeds previously
  8  heretofore made that designates as beneficiary the trustee of
  9  any trust established under a trust agreement or declaration
10  of trust or by will.
11         Section 159.  Section 733.809, Florida Statutes, is
12  amended to read:
13         733.809  Right of retainer.--The amount of a
14  noncontingent indebtedness due from of a beneficiary to the
15  estate, if due, or its present value, if not due, may be
16  offset against that the beneficiary's interest. However, that,
17  but the beneficiary shall have has the benefit of any defense
18  that would be available to him or her in a direct proceeding
19  for recovery of the debt.
20         Section 160.  Section 733.810, Florida Statutes, is
21  amended to read:
22         733.810  Distribution in kind; valuation.--
23         (1)  Assets shall be distributed in kind unless:
24         (a)  A general power of sale is conferred;
25         (b)  A contrary intention is indicated by the will or
26  trust; or
27         (c)  Disposition is made otherwise under the provisions
28  of this code. Unless a general power of sale is conferred or a
29  contrary intention is indicated by the will or unless assets
30  are otherwise disposed of under the provisions of this code,
31  the distributable assets of a decedent's estate shall be
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  1  distributed in kind through application of the following
  2  provisions:
  3         (2)(a)  Any pecuniary devise, family allowance, or
  4  other pecuniary share of the estate or trust or devise payable
  5  in money may be satisfied by value in kind if:
  6         (a)1.  The person entitled to the payment has not
  7  demanded cash;
  8         (b)2.  The property is distributed in kind is valued at
  9  fair market value as of the date of its distribution date; and
10         (c)3.  No residuary devisee has requested that the
11  asset remain a part of the residuary residue of the estate.
12         (3)(b)  When it is not practicable to distribute
13  undivided interests in a residuary asset property, the asset
14  may property shall be sold converted into cash for
15  distribution.
16         (4)(2)  When the personal representative, trustee, or
17  other fiduciary under a will or trust instrument is required
18  to, or has an option, to, satisfy a pecuniary devise or
19  transfer in trust, to, or for the benefit of, the surviving
20  spouse, with an in-kind distribution assets of the estate or
21  trust in kind, at values as finally determined for federal
22  estate tax purposes, the personal representative, trustee, or
23  other fiduciary shall, unless the governing will or trust
24  instrument otherwise provides, satisfy the devise or transfer
25  in trust by distribution of assets, including cash, fairly
26  representative of the appreciated or depreciated value of all
27  property available for that distribution in satisfaction of
28  the devise or transfer in trust, taking into consideration any
29  gains and losses realized from a prior the sale, prior to
30  distribution of the marital interest, of any property not
31  devised specifically, generally, or demonstratively devised.
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  1         (5)(3)  With the consent of all beneficiaries affected,
  2  A personal representative or a trustee is authorized to
  3  distribute any distributable assets, non-pro rata among the
  4  beneficiaries subject to the fiduciary's duty of impartiality
  5  entitled thereto.
  6         Section 161.  Section 733.811, Florida Statutes, is
  7  amended to read:
  8         733.811  Distribution; right or title of
  9  distributee.--If a distributee receives from a fiduciary an
10  instrument transferring assets in kind, payment in
11  distribution, or possession of specific property, the
12  distributee has succeeded to the estate's interest in the
13  assets as against all persons interested in the estate.
14  However, the fiduciary may recover the assets or their value
15  if the distribution was improper Proof that a distributee has
16  received an instrument transferring assets in kind or payment
17  in distribution or possession of specific property from a
18  personal representative is conclusive evidence that the
19  distributee has succeeded to the interest of the estate in the
20  distributed assets, as against all persons interested in the
21  estate, but the personal representative may recover the assets
22  or their value if the distribution was improper.
23         Section 162.  Section 733.812, Florida Statutes, is
24  amended to read:
25         733.812  Improper distribution or payment; liability of
26  distributee or payee.--Unless the distribution or payment no
27  longer can be questioned because of adjudication, estoppel, or
28  limitations, A distributee of property improperly distributed
29  or paid or a claimant who was paid improperly must paid, if he
30  or she has the property, is liable to return the assets or
31  funds property improperly received, and the income from those
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  1  assets or interest on the funds its income since distribution
  2  or payment, unless the distribution or payment cannot be
  3  questioned because of adjudication, estoppel, or limitations
  4  to the personal representative or to the beneficiaries
  5  entitled to it. If the distributee or claimant he or she does
  6  not have the property, its then he or she is liable to return
  7  the value of the property improperly received at the date of
  8  disposition, and its income thereon, and gain received by the
  9  distributee or claimant must be returned him or her.
10         Section 163.  Section 733.813, Florida Statutes, is
11  amended to read:
12         733.813  Purchasers from distributees protected.--If
13  property distributed in kind, or a security interest in that
14  property therein, is acquired by a purchaser or lender for
15  value from a distributee who has received an instrument of
16  distribution or possession from the personal representative,
17  the purchaser or lender takes title free of any claims of the
18  estate and incurs no personal liability to the estate, whether
19  or not the distribution was proper.  The To be protected under
20  this provision a purchaser or lender need not inquire whether
21  a personal representative acted properly in making the
22  distribution in kind.
23         Section 164.  Section 733.814, Florida Statutes, is
24  amended to read:
25         733.814  Partition for purpose of distribution.--When
26  two or more beneficiaries heirs or devisees are entitled to
27  distribution of undivided interests in any property, the
28  personal representative or any beneficiary one or more of the
29  beneficiaries may petition the court before closing the estate
30  is closed to make partition.  After formal notice to the
31  interested beneficiaries, the court shall partition the
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  1  property in the same manner as provided by law for civil
  2  actions of partition.  The court may direct the personal
  3  representative to sell any property that cannot be partitioned
  4  without prejudice to the owners and that cannot be allotted
  5  equitably and conveniently be allotted to any one party.
  6         Section 165.  Section 733.815, Florida Statutes, is
  7  amended to read:
  8         733.815  Private contracts agreements among interested
  9  persons distributees.--Subject to the rights of creditors and
10  taxing authorities, competent interested persons may agree
11  among themselves to alter the interests, shares, or amounts to
12  which they are entitled under the will or under the laws of
13  intestacy in a written contract executed by them all who are
14  affected. The personal representative shall abide by the terms
15  of the contract agreement, subject to the personal
16  representative's his or her obligation to administer the
17  estate for the benefit of interested persons who are not
18  parties to the contract, and creditors, to pay all taxes and
19  costs of administration, and to carry out the responsibilities
20  of his or her office for the benefit of any beneficiaries of
21  the decedent who are not parties to the agreement. Personal
22  representatives are not required to see to the performance of
23  trusts if the trustee is another person who is willing to
24  accept the trust. Trustees of a testamentary trust are
25  interested persons beneficiaries for the purposes of this
26  section. Nothing in this section herein relieves trustees of
27  any duties owed to beneficiaries of trusts.
28         Section 166.  Section 733.816, Florida Statutes, is
29  amended to read:
30         733.816  Disposition of unclaimed property held by
31  personal representatives.--
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  1         (1)  In all cases in which there is unclaimed property
  2  in the hands of a personal representative that cannot be
  3  distributed or paid because of the inability to find the
  4  lawful owner because of inability to find him or her or
  5  because no lawful owner is known or because the lawful owner
  6  refuses to accept the property after a reasonable attempt to
  7  distribute it and after notice to that lawful owner, the court
  8  shall order the personal representative to sell the property
  9  and deposit the proceeds and cash already in hand, after
10  retaining those amounts provided for in subsection (4), with
11  the clerk and receive a receipt, and the clerk shall deposit
12  the funds in the registry of the court to be disposed of as
13  follows:
14         (a)  If the value of the funds is $500 or less, the
15  clerk shall post a notice for 30 days at the courthouse door
16  giving the amount involved, the name of the personal
17  representative, and the other pertinent information that will
18  put interested persons on notice.
19         (b)  If the value of the funds is over $500, the clerk
20  shall publish the notice once a month for 2 consecutive months
21  in a newspaper of general circulation in the county.
22
23  After the expiration of 6 months from the posting or first
24  publication, the clerk shall deposit the funds with the State
25  Treasurer after deducting the clerk's his or her fees and the
26  costs of publication.
27         (2)  Upon receipt of the funds, the State Treasurer
28  shall deposit them to the credit of the State School Fund, to
29  become a part of the school fund.  All interest and all income
30  that may accrue from the money while so deposited shall belong
31  to the fund.  The funds so deposited shall constitute and be a
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  1  permanent appropriation for payments by the State Treasurer in
  2  obedience to court orders entered as provided by subsection
  3  (3).
  4         (3)  Within 10 years from the date of deposit with the
  5  State Treasurer, on written petition to the court that
  6  directed the deposit of the funds and informal notice to the
  7  Department of Legal Affairs, and after proof of entitlement
  8  his or her right to them, any person entitled to the funds
  9  before or after payment to the State Treasurer and deposit as
10  provided by subsection (1) may obtain a court an order of
11  court directing the payment of the funds to that person him or
12  her. All funds deposited with the State Treasurer and not
13  claimed within 10 years from the date of deposit shall escheat
14  to the state for the benefit of the State School Fund.
15         (4)  The personal representative depositing assets with
16  the clerk is permitted to retain from the funds in his or her
17  possession a sufficient amount to pay final costs of
18  administration chargeable to the assets, including fees
19  allowed pursuant to s. 733.617 accruing between the deposit of
20  the funds with the clerk of the court and the order of
21  discharge. Any funds so retained which are surplus shall be
22  deposited with the clerk prior to discharge of the personal
23  representative.
24         (5)(a)  If a person entitled to the funds assigns the
25  right his or her rights to receive payment or part payment to
26  an attorney or private investigative agency which is duly
27  licensed to do business in this state pursuant to a written
28  agreement with that such person, the Department of Banking and
29  Finance is authorized to make distribution in accordance with
30  the such assignment.
31
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  1         (b)  Payments made to an attorney or private
  2  investigative agency shall be promptly deposited into a trust
  3  or escrow account which is regularly maintained by the
  4  attorney or private investigative agency in a financial
  5  institution located in this state and authorized to accept
  6  these such deposits and located in this state.
  7         (c)  Distribution by the attorney or private
  8  investigative agency to the person entitled to the funds shall
  9  be made within 10 days following final credit of the deposit
10  into the trust or escrow account at the financial institution,
11  unless a party to the agreement protests the distribution in
12  writing such distribution before it is made.
13         (d)  The department shall not be civilly or criminally
14  liable for any funds distributed pursuant to this subsection,
15  provided the such distribution is made in good faith.
16         Section 167.  Subsections (1) and (2), paragraph (a) of
17  subsection (4), paragraph (c) of subsection (5), subsection
18  (6), paragraph (a) of subsection (7), and subsection (11) of
19  section 733.817, Florida Statutes, are amended to read:
20         733.817  Apportionment of estate taxes.--
21         (1)  For purposes of this section:
22         (a)  "Fiduciary" means a person other than the personal
23  representative in possession of property included in the
24  measure of the tax who is liable to the applicable taxing
25  authority for payment of the entire tax to the extent of the
26  value of the property in his or her possession.
27         (b)  "Governing instrument" means a will, trust
28  agreement, or any other document that controls the transfer of
29  an asset on the occurrence of the event with respect to which
30  the tax is being levied.
31
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  1         (c)  "Gross estate" means the gross estate, as
  2  determined by the Internal Revenue Code with respect to the
  3  federal estate tax and the Florida estate tax, and as that
  4  such concept is otherwise determined by the estate,
  5  inheritance, or death tax laws of the particular state,
  6  country, or political subdivision whose tax is being
  7  apportioned.
  8         (d)  "Included in the measure of the tax" means that
  9  for each separate tax that an interest may incur, only
10  interests included in the measure of that particular tax are
11  considered. The term "included in the measure of the tax" does
12  not include any interest, whether passing under the will or
13  not, to the extent the interest is initially deductible from
14  the gross estate, without regard to any subsequent reduction
15  diminution of the deduction by reason of the charge of any
16  part of the applicable tax to the interest. The term "included
17  in the measure of the tax" does not include interests or
18  amounts that are not included in the gross estate but are
19  included in the amount upon which the applicable tax is
20  computed, such as adjusted taxable gifts with respect to the
21  federal estate tax. If an election is required for
22  deductibility, an interest is not "initially deductible"
23  unless the election for deductibility is allowed.
24         (e)  "Internal Revenue Code" means the Internal Revenue
25  Code of 1986, as amended from time to time.
26         (f)  "Net tax" means the net tax payable to the
27  particular state, country, or political subdivision whose tax
28  is being apportioned, after taking into account all credits
29  against the applicable tax except as provided in this section.
30  With respect to the federal estate tax, "net tax" is
31
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  1  determined after taking into account all credits against the
  2  tax except for the credit for foreign death taxes.
  3         (g)  "Nonresiduary devise" means any devise that is not
  4  a residuary devise.
  5         (h)  "Nonresiduary interest" in connection with a trust
  6  means any interest in a trust which is not a residuary
  7  interest.
  8         (i)  "Recipient" means, with respect to property or an
  9  interest in property included in the gross estate, an heir at
10  law in an intestate estate, devisee in a testate estate,
11  beneficiary of a trust, beneficiary of an insurance policy,
12  annuity, or other contractual right, surviving tenant, taker
13  as a result of the exercise or in default of the exercise of a
14  general power of appointment, person who receives or is to
15  receive the property or an interest in the property, or person
16  in possession of the property, other than a creditor.
17         (j)  "Residuary devise" has the meaning set forth in s.
18  731.201(31)(30).
19         (k)  "Residuary interest," in connection with a trust,
20  means an interest in the assets of a trust which remain after
21  provision for any distribution that is to be satisfied by
22  reference to a specific property or type of property, fund,
23  sum, or statutory amount.
24         (l)  "Revocable trust" means a trust as described in s.
25  733.707(3) as defined in s. 731.201(33) created by the
26  decedent to the extent that the decedent had at his or her
27  death the power to alter, amend, or revoke the trust either
28  alone or in conjunction with any other person.
29         (m)  "State" means any state, territory, or possession
30  of the United States, the District of Columbia, and the
31  Commonwealth of Puerto Rico.
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  1         (n)  "Tax" means any estate tax, inheritance tax,
  2  generation skipping transfer tax, or other tax levied or
  3  assessed under the laws of this or any other state, the United
  4  States, any other country, or any political subdivision of the
  5  foregoing, as finally determined, which is imposed as a result
  6  of the death of the decedent, including, without limitation,
  7  the tax assessed pursuant to s. 4980A of the Internal Revenue
  8  Code. The term also includes any interest and penalties
  9  imposed in addition to the tax.  Unless the context indicates
10  otherwise, the term "tax" means each separate tax.
11         (o)  "Temporary interest" means an interest in income
12  or an estate for a specific period of time or for life or for
13  some other period controlled by reference to extrinsic events,
14  whether or not in trust.
15         (p)  "Tentative Florida tax" with respect to any
16  property means the net Florida estate tax that would have been
17  attributable to that property if no tax were payable to any
18  other state in respect of that property.
19         (q)  "Value" means the pecuniary worth of the interest
20  involved as finally determined for purposes of the applicable
21  tax after deducting any debt, expense, or other deduction
22  chargeable to it for which a deduction was allowed in
23  determining the amount of the applicable tax. A lien or other
24  encumbrance is not regarded as chargeable to a particular
25  interest to the extent that it will be paid from other
26  interests. The value of an interest shall not be reduced by
27  reason of the charge against it of any part of the tax.
28         (2)  An interest in protected homestead property shall
29  be exempt from the apportionment of taxes if such interest
30  passes to a person to whom inures the decedent's exemption
31  from forced sale under the State Constitution.
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  1         (4)(a)  Except as otherwise effectively directed by the
  2  governing instrument, if the Internal Revenue Code including,
  3  but not limited to, ss. 2032A(c)(5), 2206, 2207, 2207A, 2207B,
  4  and 2603, of the Internal Revenue Code applies to apportion
  5  federal tax against recipients of certain interests, all net
  6  taxes, including taxes levied by the state attributable to
  7  each type of interest, shall be apportioned against the
  8  recipients of all interests of that type in the proportion
  9  that the value of each interest of that type included in the
10  measure of the tax bears to the total of all interests of that
11  type included in the measure of the tax.
12         (5)  Except as provided above or as otherwise directed
13  by the governing instrument, the net tax attributable to each
14  interest shall be apportioned as follows:
15         (c)  The net tax attributable to an interest in
16  protected homestead property which is exempt from
17  apportionment pursuant to subsection (2) shall be apportioned
18  against the recipients of other interests in the estate or
19  passing under any revocable trust in the following order:
20         1.  Class I:  Recipients of interests not disposed of
21  by the decedent's will or revocable trust that which are
22  included in the measure of the federal estate tax.
23         2.  Class II:  Recipients of residuary devises and
24  residuary interests that are included in the measure of the
25  federal estate tax.
26         3.  Class III:  Recipients of nonresiduary devises and
27  nonresiduary interests that are included in the measure of the
28  federal estate tax. The net tax apportioned to a class, if
29  any, pursuant to this paragraph shall be apportioned among the
30  recipients in the class in the proportion that the value of
31
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  1  the interest of each bears to the total value of all interests
  2  included in that class.
  3         (6)  The personal representative or fiduciary shall not
  4  be required to transfer to a recipient any property in
  5  possession of the personal representative or fiduciary which
  6  he or she reasonably anticipated to anticipates may be
  7  necessary for the payment of taxes. Further, the personal
  8  representative or fiduciary shall not be required to transfer
  9  any property in possession of the personal representative or
10  fiduciary to the recipient until the amount of the tax due
11  from the recipient is paid by the recipient. If property is
12  transferred before final apportionment of the tax, the
13  recipient shall provide a bond or other security for his or
14  her apportioned liability in the amount and form prescribed by
15  the personal representative or fiduciary.
16         (7)(a)  The personal representative may petition at any
17  time for an order of apportionment. If no administration has
18  been commenced at any time after 90 days from the decedent's
19  death any fiduciary may petition for an order of apportionment
20  in the court in which venue would be proper for administration
21  of the decedent's estate. Formal notice of the petition for
22  order of apportionment shall be given to all interested
23  persons. At any time after 6 months from the decedent's death,
24  any recipient may petition the such court for an order of
25  apportionment.
26         (11)  Nothing in this section shall limit the right of
27  any person who has paid more than the amount of the tax
28  apportionable to that such person, calculated as if all
29  apportioned amounts would be collected, to obtain contribution
30  from those who have not paid the full amount of the tax
31  apportionable to them, calculated as if all apportioned
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  1  amounts would be collected, and that right is hereby
  2  conferred. In any action to enforce contribution, the court
  3  shall award taxable costs as in chancery actions, including
  4  reasonable attorney's fees.
  5         Section 168.  Section 733.901, Florida Statutes, is
  6  amended to read:
  7         733.901  Distribution; Final discharge.--
  8         (1)  After administration has been When a personal
  9  representative has completed the personal representative shall
10  be discharged administration except for distribution, he or
11  she shall file a final accounting and a petition for discharge
12  that shall contain:
13         (a)  A complete report of all receipts and
14  disbursements since the date of the last annual accounting or,
15  if none, from the commencement of administration.
16         (b)  A statement that he or she has fully administered
17  the estate by making payment, settlement, or other disposition
18  of all claims and debts that were presented and the expenses
19  of administration.
20         (c)  The proposed distribution of the assets of the
21  estate.
22         (d)  Any prior distributions that have been made.
23         (e)  A statement that objections to this report or
24  proposed distribution of assets be filed within 30 days.
25
26  The final accounting and petition for discharge shall be filed
27  and served on all interested persons within 12 months after
28  issuance of letters for estates not required to file a federal
29  estate tax return, otherwise 12 months from the date the
30  return is due, unless the time is extended by the court for
31  cause shown after notice to interested persons.  The petition
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  1  shall state the status of the estate and the reasons for the
  2  extension.
  3         (2)  If no objection to the accounting or petition for
  4  discharge has been filed within 30 days from the date of
  5  service of copies on interested persons, or if service has
  6  been waived, the personal representative may distribute the
  7  estate according to the plan of distribution set forth in the
  8  petition without a court order.  The assets shall be
  9  distributed free from the claims of any interested person and,
10  upon receipt of evidence that the estate has been properly
11  distributed and that claims of creditors have been paid or
12  otherwise disposed of, the court shall enter an order
13  discharging the personal representative and releasing the
14  surety on any bond.
15         (3)  If an objection to the petition for discharge has
16  been filed within the time allowed, the court shall determine
17  the plan of distribution and, upon receipt of evidence that
18  the estate has been properly distributed and that claims of
19  creditors have been paid or otherwise disposed of, the court
20  shall enter an order discharging the personal representative
21  and releasing the surety on any bond.
22         (4)  The final accounting required under subsection (1)
23  may be waived upon a filing of a consent waiver with the
24  court, by all interested persons, acknowledging that they are
25  aware of their rights and that they waive the right to have a
26  final accounting.
27         (5)  The 30-day period contained in subsection (2) may
28  be waived upon written consent of all interested persons.
29         (2)(6)  The discharge of the personal representative
30  shall release the personal representative of the estate and
31
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  1  shall bar any action against the personal representative, as
  2  such or individually, and the his or her surety.
  3         Section 169.  Section 733.903, Florida Statutes, is
  4  amended to read:
  5         733.903  Subsequent administration.--The final
  6  settlement of an estate and the discharge of the personal
  7  representative shall not prevent a revocation of the order of
  8  discharge or the subsequent issuance of letters if other
  9  property of the estate is discovered or if it becomes
10  necessary that further administration of the estate be had for
11  any cause. However, The order of discharge may not be revoked
12  under this section based upon the discovery of a will or later
13  will.
14         Section 170.  Subsections (3) and (4) of section
15  734.101, Florida Statutes, are amended to read:
16         734.101  Foreign personal representative.--
17         (3)  Debtors who have not received a written demand for
18  payment from a personal representative or curator appointed in
19  this state within 60 days after appointment of a personal
20  representative in any other state or country, and whose
21  property in Florida is subject to a mortgage or other lien
22  securing the debt held by the foreign personal representative,
23  may pay the foreign personal representative after the
24  expiration of 60 days from the date of his or her appointment
25  of the foreign personnel representative.  Thereafter, a
26  satisfaction of the mortgage or lien executed by the foreign
27  personal representative, with an authenticated copy of the his
28  or her letters or other evidence of authority attached, may be
29  recorded in the public records.  The satisfaction shall be an
30  effective discharge of the mortgage or lien, irrespective of
31
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  1  whether the debtor making payment had received a written
  2  demand before paying the debt.
  3         (4)  All persons indebted to the estate of a decedent,
  4  or having possession of personal property belonging to the
  5  estate, who have received no written demand from a personal
  6  representative or curator appointed in this state for payment
  7  of the debt or the delivery of the property are authorized to
  8  pay the debt or to deliver the personal property to the
  9  foreign personal representative after the expiration of 60
10  days from the date of his or her appointment of the foreign
11  personnel representative.
12         Section 171.  Section 734.102, Florida Statutes, is
13  amended to read:
14         734.102  Ancillary administration.--
15         (1)  If a nonresident of this state dies leaving assets
16  in this state, credits due him or her from residents in this
17  state, or liens on property in this state, a personal
18  representative specifically designated in the decedent's will
19  to administer the Florida property shall be entitled to have
20  ancillary letters issued to him or her, if qualified to act in
21  Florida. Otherwise, the foreign personal representative of the
22  decedent's estate shall be entitled to have letters issued to
23  him or her, if qualified to act in Florida.  If the foreign
24  personal representative is not qualified to act in Florida and
25  the will names an alternate or successor who is qualified to
26  act in Florida, the alternate or successor shall be entitled
27  to have letters issued to him or her. Otherwise, those
28  entitled to a majority interest of the Florida property may
29  have letters issued to a personal representative selected by
30  them who is qualified to act in Florida.  If the decedent dies
31  intestate and the foreign domiciliary personal representative
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  1  is not qualified to act in Florida, the order of preference
  2  for appointment of a personal representative as prescribed in
  3  this code shall apply.  If ancillary letters are applied for
  4  by other than the domiciliary personal representative, prior
  5  notice shall be given to any domiciliary personal
  6  representative.
  7         (2)  Ancillary administration shall be commenced as
  8  provided by the Florida Probate Rules. To entitle the
  9  applicant to ancillary letters, an authenticated copy of so
10  much of the domiciliary proceedings shall be filed as will
11  show either:
12         (a)  The will, petition for probate, order admitting
13  the will to probate, and letters, if there are such; or
14         (b)  The petition for letters and the letters.
15         (3)  On filing the authenticated copy of a probated
16  will, including any probated codicils, the court shall
17  determine If the will and any the codicils, are executed as
18  required by the code, they shall be admitted to probate if
19  any, comply with s. 732.502(1) or s. 732.502(2).  If they
20  comply, the court shall admit the will and any codicils to
21  record.
22         (4)  The ancillary personal representative shall give
23  bond as do personal representatives generally.  All
24  proceedings for appointment and administration of the estate
25  shall be as similar to those in original administrations as
26  possible.
27         (5)  Unless creditors' claims are otherwise barred by
28  s. 733.710, the ancillary personal representative shall cause
29  a notice to creditors to be served and published according to
30  the requirements of chapter 733.  Claims not filed in
31
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  1  accordance with chapter 733 shall be barred as provided in s.
  2  733.702.
  3         (6)(5)  After the payment of all expenses of
  4  administration and claims against the estate, the court may
  5  order the remaining property held by the ancillary personal
  6  representative transferred to the foreign domiciliary personal
  7  representative or distributed to the beneficiaries heirs or
  8  devisees.
  9         (7)(6)  Ancillary personal representatives shall have
10  the same rights, powers, and authority as other personal
11  representatives in Florida to manage and settle estates; to
12  sell, lease, or mortgage local property; and to raise funds
13  for the payment of debts, claims, and devises in the
14  domiciliary jurisdiction.  No property shall be sold, leased,
15  or mortgaged to pay a debt or claim that is barred by any
16  statute of limitation or of nonclaim of this state.
17         Section 172.  Section 734.1025, Florida Statutes, is
18  amended to read:
19         734.1025  Nonresident decedent's testate estate with
20  property not exceeding $50,000 $25,000 in this state;
21  determination of claims.--
22         (1)  When a nonresident decedent dies testate and
23  leaves property subject to administration in this state the
24  gross value of which does not exceed $50,000 at the date of
25  death $25,000, the foreign domiciliary personal representative
26  of the estate may determine the question of claims in this
27  state before the expiration of 2 years after the decedent's
28  death may file the 2-year period provided in s. 733.710 by
29  filing in the circuit court of the county where any property
30  is located an authenticated transcript of so much of the
31  foreign domiciliary proceedings as will show the will and
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  1  beneficiaries of the estate, as provided in the Florida
  2  Probate Rules. The court shall admit the will and any codicils
  3  to probate if they comply with s. 732.502(1) or (2).:
  4         (a)  In a testate estate, the probated will and all
  5  probated codicils of the decedent; the order admitting them to
  6  record; the letters or their equivalent; and the part of the
  7  record showing the names of the devisees and heirs of the
  8  decedent or an affidavit of the domiciliary personal
  9  representative reciting that the names are not shown or not
10  fully disclosed by the domiciliary record and specifying the
11  names.  On presentation of the foregoing, the court shall
12  admit the will and any codicils to probate if they comply with
13  s. 732.502(1) or (2).
14         (b)  In an intestate estate, the authenticated copy of
15  letters of administration, or their equivalent, with the part
16  of the record showing the names of the heirs of the decedent
17  or an affidavit of the domiciliary personal representative
18  supplying the names, as provided in paragraph (a). On
19  presentation of the foregoing, the court shall order them
20  recorded.
21         (2)  After complying with the foregoing requirements,
22  The foreign domiciliary personal representative may shall
23  cause a notice to creditors to be served and published
24  according to the revelant requirements of chapter 733 s.
25  731.111, notifying all persons having claims or demands
26  against the estate to file them. Claims not filed in
27  accordance with chapter 733 shall be barred as provided in s.
28  733.702. If any claim is filed, a personal representative
29  shall be appointed as provided in the Florida Probate Rules.
30
31
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  1         (3)  The procedure for filing claims and objection to
  2  them and for suing on them shall be the same as for other
  3  estates, except as hereinafter provided.
  4         (4)  If no claims are filed against the estate within
  5  the time allowed, the court shall enter an order adjudging
  6  that notice to creditors has been duly given and proof thereof
  7  filed and that no claims have been filed against the estate or
  8  that all claims have been satisfied.
  9         (5)  If any claim is filed against the estate within
10  the time allowed, the court shall send to the domiciliary
11  personal representative a copy of the claim and a notice
12  setting a date for a hearing to appoint an ancillary personal
13  representative.  At the hearing, the court shall appoint an
14  ancillary personal representative according to the preferences
15  as provided in s. 733.301.
16         (6)  If an ancillary personal representative is
17  appointed pursuant to subsection (5), the procedure for
18  filing, objecting to, and suing on claims shall be the same as
19  for other estates, except that the ancillary personal
20  representative appointed shall have not fewer than 30 days
21  from the date of his or her appointment within which to object
22  to any claim filed.
23         (7)  The filing by domiciliary personal representatives
24  of portions of the domiciliary probate proceedings as
25  specified in this section, and the barring of claims of
26  creditors in such estates by the publication of notice to
27  creditors as set forth in this section, in all cases prior to
28  June 25, 1980, are hereby validated and confirmed.
29         Section 173.  Paragraph (a) of subsection (1) and
30  subsection (3) of section 734.104, Florida Statutes, are
31  amended to read:
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  1         734.104  Foreign wills; admission to record; effect on
  2  title.--
  3         (1)  An authenticated copy of the will of a nonresident
  4  that devises real property in this state, or any right, title,
  5  or interest in the property, may be admitted to record in any
  6  county of this state where the property is located at any time
  7  after 2 years from the death of the decedent or at any time
  8  after the domiciliary personal representative has been
  9  discharged if there has been no proceeding to administer the
10  estate of the decedent in this state, provided:
11         (a)  The will was executed as required by Chapter 732
12  complies with s. 732.502 as to form and manner of execution;
13  and
14         (3)  If the court finds that the requirements of this
15  section have been met has been complied with, it shall enter
16  an order admitting the foreign will to record.
17         Section 174.  Section 734.201, Florida Statutes, is
18  amended to read:
19         734.201  Jurisdiction by act of foreign personal
20  representative.--A foreign personal representative submits
21  personally to the jurisdiction of the courts of this state in
22  any proceeding concerning the estate by:
23         (1)  Filing authenticated copies of the domiciliary
24  proceedings under s. 734.104; 734.103.
25         (2)  Receiving payment of money or taking delivery of
26  personal property, under s. 734.101; or.
27         (3)  Doing any act as a personal representative in this
28  state that would have given the state jurisdiction over that
29  person him or her as an individual.
30         Section 175.  Section 734.202, Florida Statutes, is
31  amended to read:
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  1         734.202  Jurisdiction by act of decedent.--In addition
  2  to jurisdiction conferred by s. 734.201, a foreign personal
  3  representative is subject to the jurisdiction of the courts of
  4  this state to the same extent that the his or her decedent was
  5  subject to jurisdiction immediately before death.
  6         Section 176.  Section 735.101, Florida Statutes, is
  7  repealed:
  8         735.101  Family administration; nature of
  9  proceedings.--Family administration may be had in the
10  administration of a decedent's estate when it appears:
11         (1)  In an intestate estate, that the heirs at law of
12  the decedent consist solely of a surviving spouse, lineal
13  descendants, and lineal ascendants, or any of them.
14         (2)  In a testate estate, that the beneficiaries under
15  the will consist of a surviving spouse, lineal descendants,
16  and lineal ascendants, or any of them, and that any specific
17  or general devise to others constitutes a minor part of the
18  decedent's estate.
19         (3)  In a testate estate, that the decedent's will does
20  not direct administration as required by chapter 733.
21         (4)  That the value of the gross estate, as of the date
22  of death, for federal estate tax purposes is less than
23  $60,000.
24         (5)  That the entire estate consists of personal
25  property or, if real property forms part of the estate, that
26  administration under chapter 733 has proceeded to the point
27  that all claims of creditors have been processed or barred.
28         Section 177.  Section 735.103, Florida Statutes, is
29  repealed:
30         735.103  Petition for family administration.--A
31  verified petition for family administration shall contain, in
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  1  addition to the statements required by s. 733.202, the
  2  following:
  3         (1)  Facts showing that petitioners are entitled to
  4  family administration, as provided in s. 735.101.
  5         (2)  A complete list of the assets of the gross estate
  6  for federal estate tax purposes and their estimated value.
  7         (3)  An appropriate statement that the estate is not
  8  indebted or that provision for payment of debts has been made
  9  or the claims are barred.
10         (4)  A proposed schedule of distribution of all assets
11  to those entitled thereto as surviving spouse, heirs,
12  beneficiaries, or creditors.
13
14  The petition shall be signed and verified by all beneficiaries
15  and the surviving spouse, if any.  The petition may be signed
16  on behalf of a minor or an incompetent by her or his legal
17  guardian or, if none, by her or his natural guardian.
18         Section 178.  Section 735.107, Florida Statutes, is
19  repealed:
20         735.107  Family administration distribution.--
21         (1)  Upon filing the petition for family
22  administration, the will, if any, shall be proved in
23  accordance with chapter 733 and be admitted to probate.
24         (2)  If the estate consists of personal property only,
25  then, after such hearing as the court may require, an order of
26  family administration may be entered allowing immediate
27  distribution of the assets to the persons entitled to them.
28         (3)  The order of family administration and the
29  distribution so entered shall have the following effect:
30         (a)  Those to whom specified parts of the decedent's
31  estate are assigned by the order shall be entitled to receive
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  1  and collect the parts and to have the parts transferred to
  2  them.  They may maintain actions to enforce the right.
  3         (b)  Debtors of the decedent, those holding property of
  4  the decedent, and those with whom securities or other property
  5  of the decedent are registered are authorized and empowered to
  6  comply with the order by paying, delivering, or transferring
  7  to those specified in the order the parts of the decedent's
  8  estate assigned to them by the order, and the persons so
  9  paying, delivering, or transferring shall not be accountable
10  to anyone else for the property.
11         (c)  After the entry of the order, bona fide purchasers
12  for value from those to whom property of the decedent may be
13  assigned by the order shall take the property free of all
14  claims of creditors of the decedent and all rights of the
15  surviving spouse and all other heirs and devisees.
16         (d)  Property of the decedent that is not exempt from
17  claims of creditors and that remains in the hands of those to
18  whom it may be assigned by the order shall continue to be
19  liable for claims against the decedent until barred as
20  provided in this law.
21         (e)  The petitioners for the order of family
22  administration shall be personally liable for all lawful
23  claims against the estate of the decedent, but only to the
24  extent of the value of the estate of the decedent actually
25  received by each petitioner, exclusive of the property exempt
26  from claims of creditors under the constitution and statutes
27  of Florida.
28         (f)  After 2 years from the death of the decedent,
29  neither her nor his estate nor those to whom it may be
30  assigned shall be liable for any claim against the decedent,
31
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  1  unless proceedings have been taken for the enforcement of the
  2  claim.
  3         (g)  Any heir or devisee of the decedent who was
  4  lawfully entitled to share in the estate but was not included
  5  in the order of family administration and distribution may
  6  enforce her or his rights against those who procured the order
  7  in appropriate proceedings and, when successful, shall be
  8  awarded reasonable attorney's fees as an element of costs.
  9         (4)(a)  If the estate of the decedent includes real
10  property and administration under chapter 733 has proceeded to
11  the point that all claims of creditors have been processed or
12  barred, or upon the satisfaction of all claims of creditors,
13  if any, and after such hearing as the court may require, an
14  order of family administration may be entered and the personal
15  representative authorized to make distribution of the assets
16  to the persons entitled to them.  Upon evidence satisfactory
17  to the court that distribution has been made, the court shall
18  enter an order discharging the personal representative.
19         (b)  Any heir or devisee of the decedent who was
20  lawfully entitled to share in the estate but who was not
21  included in the order of family administration and
22  distribution may enforce her or his rights against those who
23  procured the order in appropriate proceedings and, when
24  successful, shall be awarded reasonable attorney's fees as an
25  element of costs.
26         Section 179.  Subsection (2) of section 735.201,
27  Florida Statutes, is amended to read:
28         735.201  Summary administration; nature of
29  proceedings.--Summary administration may be had in the
30  administration of either a resident or nonresident decedent's
31  estate, when it appears:
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  1         (2)  That the value of the entire estate subject to
  2  administration in this state, less the value of property
  3  exempt from the claims of creditors, does not exceed $75,000
  4  $25,000 or that the decedent has been dead for more than 2
  5  years.
  6         Section 180.  Section 735.203, Florida Statutes, is
  7  amended to read:
  8         735.203  Petition for summary administration.--
  9         (1)  A petition for summary administration may be filed
10  by any beneficiary, heir at law, or person nominated as
11  personal representative in the decedent's will offered for
12  probate. and shall be signed and verified by: The petition
13  must be signed and verified by
14         (a)  the surviving spouse, if any and any; the heirs at
15  law or beneficiaries.
16         (2)  If a person named in subsection (1) has died, is
17  incapacitated, or is a minor, or has conveyed or transferred
18  all interest in the property of the estate, then, as to that
19  person, the petition must be signed and certified by:
20         (a)  The personal representative, if any, of a deceased
21  person or, if none, the surviving spouse, if any, and the
22  beneficiaries;
23         (b)  The guardian of an incapacitated person or a
24  minor; or
25         (c)  The grantee or transferee of any of them shall be
26  authorized to sign and verify the petition instead of the
27  beneficiary or surviving spouse.
28         (3)  The joinder in, or consent to, a petition for
29  summary administration is not required of a beneficiary who
30  will receive full distributive share under the proposed
31  distribution.  Any beneficiary not joining or consenting shall
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  1  receive formal notice of the petition.  who are sui juris; and
  2  the guardians of any heirs at law or beneficiaries who are not
  3  sui juris; or
  4         (b)  The persons described by s. 735.209.
  5         (2)  A petition for summary administration shall
  6  contain, in addition to the statements required by s.
  7  733.202(2)(b) and (c), the following:
  8         (a)  Facts showing that petitioners are entitled to
  9  summary administration as provided in s. 735.201.
10         (b)  A complete list of the assets of the estate and
11  their estimated value, together with those assets claimed to
12  be exempt.
13         (c)  A statement that the estate is not indebted or
14  that provision for payment of debts has been made.
15         (d)  A proposed schedule of distribution of all assets
16  to those entitled thereto as surviving spouse, beneficiaries,
17  or creditors.
18         Section 181.  Section 735.206, Florida Statutes, is
19  amended to read:
20         735.206  Summary administration distribution.--
21         (1)  Upon the filing of the petition for summary
22  administration, the will, if any, shall be proved in
23  accordance with chapter 733 and be admitted to probate.
24         (2)  Prior to entry of the order of summary
25  administration, the petitioner shall make a diligent search
26  and reasonable inquiry for any known or reasonably
27  ascertainable creditors, serve a copy of the petition on those
28  creditors, and make provision for payment for those creditors
29  to the extent that assets are available.
30         (3)(2)  The court may enter After such hearing as the
31  court may require, an order of summary administration may be
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  1  entered allowing immediate distribution of the assets to the
  2  persons entitled to them.
  3         (4)(3)  The order of summary administration and
  4  distribution so entered shall have the following effect:
  5         (a)  Those to whom specified parts of the decedent's
  6  estate, including exempt property, are assigned by the order
  7  shall be entitled to receive and collect the parts and to have
  8  the parts transferred to them.  They may maintain actions to
  9  enforce the right.
10         (b)  Debtors of the decedent, those holding property of
11  the decedent, and those with whom securities or other property
12  of the decedent are registered are authorized and empowered to
13  comply with the order by paying, delivering, or transferring
14  to those specified in the order the parts of the decedent's
15  estate assigned to them by the order, and the persons so
16  paying, delivering, or transferring shall not be accountable
17  to anyone else for the property.
18         (c)  After the entry of the order, bona fide purchasers
19  for value from those to whom property of the decedent may be
20  assigned by the order shall take the property free of all
21  claims of creditors of the decedent and all rights of the
22  surviving spouse and all other beneficiaries heirs and
23  devisees.
24         (d)  Property of the decedent that is not exempt from
25  claims of creditors and that remains in the hands of those to
26  whom it may be assigned by the order shall continue to be
27  liable for claims against the decedent until barred as
28  provided in the code this law. Any known or reasonably
29  ascertainable creditor who did not receive notice and for whom
30  provision for payment was not made may enforce the claim and,
31  if the creditor prevails, shall be awarded reasonable
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  1  attorneys fees as an element of costs against those who joined
  2  in the petition.
  3         (e)  The recipients of the decedent's property under
  4  petitioners for the order of summary administration shall be
  5  personally liable for a pro rata share of all lawful claims
  6  against the estate of the decedent, but only to the extent of
  7  the value of the estate of the decedent actually received by
  8  each recipient petitioner, exclusive of the property exempt
  9  from claims of creditors under the constitution and statutes
10  of Florida.
11         (f)  After 2 years from the death of the decedent,
12  neither the decedent's estate nor those to whom it may be
13  assigned shall be liable for any claim against the decedent,
14  unless proceedings have been taken for the enforcement of the
15  claim.
16         (g)  Any heir or devisee of the decedent who was
17  lawfully entitled to share in the estate but who was not
18  included in the order of summary administration and
19  distribution may enforce all his or her rights in appropriate
20  proceedings against those who procured the order and, if when
21  successful, shall be awarded reasonable attorney's fees as an
22  element of costs.
23         Section 182.  Section 735.2063, Florida Statutes, is
24  amended to read:
25         735.2063  Notice to creditors.--
26         (1)  Any person who has obtained received an order of
27  summary administration may publish a notice to creditors
28  according to the relevant requirements of s. 733.2121 731.111,
29  notifying all persons having claims or demands against the
30  estate of the decedent that an order of summary administration
31  has been entered by the court. The Such notice shall will
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  1  specify the total cash value of the estate and the names and
  2  addresses of those to whom it has been assigned by the such
  3  order. Such notice, if published, shall be published once a
  4  week for 2 consecutive weeks in a newspaper published in the
  5  county where such order was entered, and proof of publication
  6  of such notice shall be filed with the court.
  7         (2)  If proof of publication of the such notice is
  8  filed with the court, all claims and demands of creditors
  9  against the estate of the decedent who are not known or are
10  reasonably ascertainable shall be forever barred unless the
11  such claims and demands are filed with the court within 3
12  months after from the first publication of the such notice.
13         Section 183.  Section 735.209, Florida Statutes, is
14  repealed:
15         735.209  Joinder of heirs, devisees, or surviving
16  spouse in summary administration.--
17         (1)  When any heir, devisee, or surviving spouse is
18  authorized or required under this part to join in any
19  agreement or petition and any such person has died, become
20  incompetent or is a minor, or has conveyed or transferred all
21  of his or her interest in the property of the estate, then:
22         (a)  The heirs, devisees, and surviving spouse, if any,
23  of a deceased person,
24         (b)  The personal representative, if any, of the estate
25  of a deceased person,
26         (c)  The guardian of an incompetent or minor, or
27         (d)  The grantee or transferee of any of them
28
29  shall be authorized to join in such agreement or petition
30  instead of the heir, devisee, or surviving spouse.
31
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  1         (2)  The joinder in, or consent to, a petition for
  2  summary administration is not required of an heir or
  3  beneficiary who will receive his or her full distributive
  4  share under the proposed distribution.  Any beneficiary not
  5  joining or consenting shall receive formal notice of the
  6  petition.
  7         Section 184.  Subsection (3) of section 735.301,
  8  Florida Statutes, is amended to read:
  9         735.301  Disposition without administration.--
10         (3)  Any person, firm, or corporation paying,
11  delivering, or transferring property under the authorization
12  shall be forever discharged from any liability thereon.
13         Section 185.  Section 735.302, Florida Statutes, is
14  amended to read:
15         735.302  Income tax refunds in certain cases.--
16         (1)  In any case when the United States Treasury
17  Department determines that an overpayment of federal income
18  tax exists and the person in whose favor the overpayment is
19  determined is dead at the time the overpayment of tax is to be
20  refunded, and irrespective of whether the decedent had filed a
21  joint and several or separate income tax return, the amount of
22  the overpayment, if not in excess of $2,500 $500, may be
23  refunded as follows:
24         (a)  Directly to the surviving spouse on his or her
25  verified application; or
26         (b)  If there is no surviving spouse, to one of the
27  decedent's children who is designated in a verified
28  application purporting to be executed by all of the decedent's
29  children over the age of 14 years.
30
31
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  1  In either event, the application must show that the decedent
  2  was not indebted, that provision has been made for the payment
  3  of the decedent's debts, or that the entire estate is exempt
  4  from the claims of creditors under the constitution and
  5  statutes of the state, and that no administration of the
  6  estate, including summary administration, has been initiated
  7  and that none is planned, to the knowledge of the applicant.
  8         (2)  If a refund is made to the surviving spouse or
  9  designated child pursuant to the application, the refund shall
10  operate as a complete discharge to the United States from
11  liability from any action, claim, or demand by any beneficiary
12  of the decedent or other person.  Nothing in This section
13  shall be construed as establishing the ownership or rights of
14  the payee any person in the refund so distributed.
15         Section 186.  Section 737.208, Florida Statutes, is
16  created to read:
17         737.208  Administration pending outcome of contest or
18  other proceeding.--
19         (1)  Pending the outcome of a proceeding filed to
20  determine the validity of all or part of a trust or the
21  beneficiaries of all or part of a trust, the trustee shall
22  proceed with the administration of the trust as if no
23  proceeding had been commenced, except that no distribution may
24  be made to a beneficiary in contravention of the rights of
25  those persons that may be affected by the outcome of the
26  proceeding.
27         (2)  Upon motion of a party and after notice to
28  interested persons, a court may, upon good cause shown, make
29  an exception to the prohibition under subsection (1) and
30  authorize the trustee to distribute trust assets to a
31  beneficiary subject to any conditions the court, in its
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  1  discretion, may impose, including the posting of bond by the
  2  beneficiary.
  3         Section 187.  Section 737.3054, Florida Statutes, is
  4  amended to read:
  5         737.3054  Trustee's duty to pay expenses and
  6  obligations of grantor's settlor's estate.--
  7         (1)  A trustee of a trust described in s. 733.707(3)
  8  shall pay to the personal representative of a grantor's
  9  settlor's estate any amounts that the personal representative
10  certifies in writing to the trustee are required to pay the
11  expenses of the administration and obligations of the
12  grantor's settlor's estate and the enforceable claims of the
13  settlor's creditors.  Payments made by a trustee, unless
14  otherwise provided in the trust instrument, must be charged as
15  expenses of the trust without a contribution from anyone.  The
16  interests interest of all beneficiaries of such a trust are
17  subject to the provisions of this subsection; however, the
18  payments must be made from assets or property or the proceeds
19  thereof, other than assets proscribed in s. 733.707(3), which
20  are included in the grantor's settlor's gross estate for
21  federal estate tax purposes.
22         (2)  Unless a grantor settlor provides by will, or
23  designates in a trust described in s. 733.707(3) the funds or
24  property passing under the a trust described in s. 733.707(3)
25  to be so used, the expenses of the administration and
26  obligations of the grantor's settlor's estate and enforceable
27  claims of the settlor's creditors must be paid from the trust
28  in the following order:
29         (a)  Property of the residue of the trust remaining
30  after all distributions that are to be satisfied by reference
31  to a specific property or type of property, fund, or sum;
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  1         (b)  Property that is not to be distributed from
  2  specified or identified property or a specified or identified
  3  item of property; and
  4         (c)  Property that is to be distributed from specified
  5  or identified property or a specified or identified item of
  6  property.
  7         (3)  Trust distributions that are to be satisfied from
  8  specified or identified property must be classed as
  9  distributions to be satisfied from the general assets of the
10  trust and not otherwise disposed of in the trust instrument
11  upon the failure or insufficiency of funds or property from
12  which payment should be made, to the extent of the
13  insufficiency.  Trust distributions given for valuable
14  consideration abate with other distributions of the same class
15  only to the extent of the excess over the value of the
16  consideration until all others of the same class are
17  exhausted. Except as provided in this section, trust
18  distributions abate equally and ratably and without preference
19  or priority between real and personal property.  When a
20  specified or identified item of property that has been
21  designated for distribution in the trust instrument or that is
22  charged with a distribution is sold or taken by the trustee,
23  other beneficiaries shall contribute according to their
24  respective interests to the beneficiary whose property has
25  been sold or taken, and before distribution the trustee shall
26  determine the amounts of the respective contributions, and
27  they must be paid or withheld before distribution is made.
28         (4)  The trustee shall pay the expenses of trust
29  administration, including compensation of trustees and their
30  attorneys, before and in preference to the expenses of the
31
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  1  administration and obligations of the grantor's settlor's
  2  estate and enforceable claims of the settlor's creditors.
  3         Section 188.  Section 737.306, Florida Statutes, is
  4  amended to read:
  5         737.306  Personal liability of trustee.--
  6         (1)(a)  Unless otherwise provided in the contract, a
  7  trustee is not personally liable on contracts, except
  8  contracts for attorneys' fees, properly entered into in the
  9  trustee's fiduciary capacity in the course of administration
10  of the trust estate unless the trustee he or she fails to
11  reveal that his or her representative capacity and identify
12  the trust estate in the contract.
13         (b)  A trustee is personally liable for obligations
14  arising from ownership or control of property of the trust
15  estate or for torts committed in the course of administration
16  of the trust estate only if the trustee is personally at
17  fault.
18         (c)  Claims based on contracts, except contracts for
19  attorneys' fees, entered into by a trustee in his or her
20  fiduciary capacity, on obligations arising from ownership or
21  control of the trust estate, or on torts committed in the
22  course of trust administration may be asserted against the
23  trust estate by proceeding against the trustee in the
24  trustee's his or her fiduciary capacity, whether or not the
25  trustee is personally liable.
26         (2)  Issues of liability between the trust estate and
27  the trustee individually may be determined in a proceeding for
28  accounting, surcharge, or indemnification, or in any other
29  appropriate proceeding.
30         (3)  A successor trustee is not personally liable for
31  any action taken or omitted to be taken by any prior trustee;
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  1  nor does any successor trustee have a duty to institute any
  2  action against any prior trustee, or file any claim against
  3  any prior trustee's estate, for any of the prior trustee's
  4  acts or omissions as trustee under any of the following
  5  circumstances:
  6         (a)  The successor trustee succeeds a trustee who was
  7  also the grantor of a trust that was revocable during the time
  8  that the grantor served as trustee;
  9         (b)  As to any beneficiary who has waived any
10  accounting required by s. 737.303, but only as to the periods
11  included in the such waiver;
12         (c)  As to any beneficiary who has released the
13  successor trustee from the such duty to institute any action
14  or file any claim;
15         (d)  As to any person who is not a beneficiary within
16  the meaning of s. 737.303(4)(b); or
17         (e)  As to any beneficiary described in s.
18  737.303(4)(b):
19         1.  If a super majority of the reasonably ascertainable
20  current income or principal beneficiaries described in s.
21  737.303(4)(b)1. and a super majority of the reasonably
22  ascertainable remainder beneficiaries described in s.
23  737.303(4)(b)2. have released the successor trustee;
24         2.  If the beneficiary has not delivered a written
25  request to the successor trustee to institute an action or
26  file a claim against the prior trustee within 6 months after
27  the date of the successor trustee's acceptance of the trust,
28  if the successor trustee has notified the beneficiary in
29  writing of its acceptance in accordance with s. 737.303(1) and
30  that such writing advises the beneficiary that, unless the
31  beneficiary delivers the such written request within 6 months
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  1  after the date of acceptance, the his or her right to proceed
  2  against the successor trustee will be barred pursuant to this
  3  section; or
  4         3.  For any action or claim that the beneficiary is
  5  barred from bringing against the prior trustee.
  6         (4)(a)  Two years after the death of a settlor, neither
  7  a trust described in s. 733.707(3) as established by the
  8  settlor, the trustee of the trust, nor any beneficiary may be
  9  held liable for any claim or cause of action against the
10  settlor by a creditor who seeks to recover from the trust,
11  trustee, or beneficiary.
12         (b)  This subsection does not apply to a creditor who
13  has timely filed a claim against the settlor's estate under s.
14  733.702 within 2 years after the settlor's death and whose
15  claim has not been paid or otherwise disposed of, even if the
16  settlor's estate proceedings have been closed or otherwise
17  completed.
18         (c)  This subsection does not affect the lien of a duly
19  recorded mortgage or security interest or the right to
20  foreclose and enforce the mortgage or lien.
21         (f)(5)  For the purposes of this section, a super
22  majority of beneficiaries means at least two-thirds in
23  interest of the beneficiaries if the interests of the
24  beneficiaries are reasonably ascertainable; otherwise, it
25  means at least two-thirds in number of the beneficiaries. A
26  release or waiver under this section may be exercised by a
27  legal representative or natural guardian of the beneficiary
28  without the filing of any proceeding or approval of any court.
29  Nothing in this subsection (3) affects any liability of the
30  prior trustee or the right of the successor trustee or any
31
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  1  beneficiary to pursue an action or claim against the prior
  2  trustee.
  3         Section 189.  Section 737.3061, Florida Statutes, is
  4  created to read:
  5         737.3061  Limitations on actions against certain
  6  trusts.--
  7         (1)  After the death of a grantor, no creditor of the
  8  grantor may bring, maintain, or continue any direct action
  9  against a trust described in s. 733.707(3), the trustee of the
10  trust or any beneficiary of the trust that is dependent on the
11  individual liability of the grantor.  Those claims and causes
12  of action against the grantor shall be presented and enforced
13  against the grantor's estate as provided in part VII of
14  chapter 733, and the personal representative of the grantor's
15  estate may obtain payment from the trustee of a trust
16  described in s. 733.707(3) as provided in ss. 733.607(2),
17  733.707(3), and 737.3054(1).
18         (2)  This section shall not preclude a direct action
19  against a trust described in s. 733.707(3), the trustee of the
20  trust, or a beneficiary of the trust that is not dependent on
21  the individual liability of the grantor.
22         (3)  This section does not affect the lien of any duly
23  recorded mortgage or security interest or the lien of any
24  person in possession of personal property or the right to
25  foreclose and enforce the mortgage or lien.
26         Section 190.  Section 737.308, Florida Statutes, is
27  amended to read:
28         737.308  Notice of trust.--
29         (1)  Upon the death of a grantor settlor of a trust
30  described in s. 733.707(3), the trustee must file a notice of
31  trust with the court of the county of the grantor's settlor's
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  1  domicile and the court having jurisdiction of the grantor's
  2  settlor's estate.
  3         (2)  The notice of trust must contain the name of the
  4  grantor settlor, the grantor's settlor's date of death, the
  5  title of the trust, if any, the date of the trust, and the
  6  name and address of the trustee.
  7         (3)  If the grantor's settlor's probate proceeding has
  8  been commenced, the clerk must notify the trustee in writing
  9  of the date of the commencement of the probate proceeding and
10  the file number.
11         (4)  The clerk shall file and index the notice of trust
12  in the same manner as a caveat, unless there exists a probate
13  proceeding for the grantor's settlor's estate in which case
14  the notice of trust must be filed in the probate proceeding
15  and the clerk shall send a copy to the personal
16  representative.
17         (5)  The clerk shall send a copy of any caveat filed
18  regarding the grantor settlor to the trustee, and the Notice
19  of Trust to any caveator, unless there is a probate proceeding
20  pending and the personal representative and the trustee are
21  the same.
22         (6)  In any proceeding affecting the expenses of the
23  administration of the estate, or any claims described in s.
24  733.702(1), the trustee of a trust described in s. 733.707(3)
25  is an interested person in the administration of the grantor's
26  estate.
27         (6)(7)  Any proceeding affecting the expenses of the
28  administration or obligations of the grantor's estate or any
29  claims described in s. 733.702(1) prior to the trustee filing
30  a notice of trust are binding upon the trustee.
31
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  1         (7)(8)  The trustee's failure to file the notice of
  2  trust does not affect the trustee's obligation to pay expenses
  3  of administration and obligations of the grantor's estate
  4  enforceable claims as provided in s. 733.607(2).
  5         Section 191.  Section 215.965, Florida Statutes, is
  6  amended to read:
  7         215.965  Disbursement of state moneys.--Except as
  8  provided in s. 17.076, s. 253.025(14), s. 259.041(18), s.
  9  717.124(5), s. 732.107(5)(6), or s. 733.816(5), all moneys in
10  the State Treasury shall be disbursed by state warrant, drawn
11  by the Comptroller upon the State Treasury and payable to the
12  ultimate beneficiary. This authorization shall include
13  electronic disbursement.
14         Section 192.  Subsection (3) of section 660.46, Florida
15  Statutes, is amended to read:
16         660.46  Substitution of fiduciaries.--
17         (3)  Unless a waiver or consent shall be filed in the
18  proceedings as provided in subsection (4), the provisions of
19  s. 731.301(1)(a), (c), and (2)(d) shall apply with respect to
20  notice of the proceedings to all persons who are then
21  cofiduciaries with the original fiduciary, other than a person
22  joining as a petitioner in the proceedings; to all persons
23  named in the governing instrument as substitutes or successors
24  to the fiduciary capacity of the original fiduciary; to the
25  persons then living who are entitled under the governing
26  instrument to appoint a substitute or successor to act in the
27  fiduciary capacity of the original fiduciary; to all vested
28  beneficiaries of the fiduciary account; and to all then-living
29  originators of the governing instrument. Unless a waiver or
30  consent shall be filed in the proceedings as provided in
31  subsection (4), the provisions of s. 731.301(2) shall apply
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  1  with respect to notice to all contingent beneficiaries of the
  2  fiduciary account. Only the persons or classes of persons
  3  described in the foregoing provisions of this subsection shall
  4  be deemed to be interested persons for the purposes of this
  5  section and the proceedings and notices provided for in this
  6  section; and the provisions of ss. 731.301(3) and
  7  731.303(3)(4) and (4)(5), relating to notice requirements, the
  8  effect of notice, and representation of interests, shall apply
  9  to the proceedings provided for in this section.
10         Section 193.  Subsection (1) of section 737.111,
11  Florida Statutes, is amended to read:
12         737.111  Execution requirements for express trusts.--
13         (1)  The testamentary aspects of a trust defined in s.
14  731.201(34)(33), are invalid unless the trust instrument is
15  executed by the grantor settlor with the formalities required
16  for the execution of a will.
17         Section 194.  In editing manuscript for the next
18  official version of the Florida Statutes, the Division of
19  Statutory Revision of the Office of Legislative Services is
20  directed to:
21         (1)  Change the title of Part II of Chapter 732,
22  Florida Statutes, from "Elective Share of Surviving Spouse" to
23  "Elective Share of Surviving Spouse; Rights in Community
24  Property."
25         (2)  Change the title of Part III of Chapter 733,
26  Florida Statutes, from "Priority to Administer and
27  Qualifications of Personal Representative" to "Preference in
28  Appointment and Qualifications of Personal Representative."
29         (3)  Change the title of Part IV of Chapter 733,
30  Florida Statutes, from "Appointment of Personal
31  Representative; Bonds" to "Fiduciary Bonds."
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  1         (4)  Change the title of Part V of Chapter 733, Florida
  2  Statutes, from "Curators; Successor Personal Representative;
  3  Removal" to "Curators; Resignation and Removal of Personal
  4  Representatives."
  5         Section 195.  This act shall take effect January 1,
  6  2002. The substantive rights of all persons that have vested
  7  prior to January 1, 2002, shall be determined as provided in
  8  former chapters 63, 215, 409, 660, and 731-737, Florida
  9  Statutes, as they existed prior to January 1, 2002. The
10  procedures for the enforcement of substantive rights which
11  have vested prior to January 1, 2002, shall be as provided in
12  this act, except that any Family Administration filed before
13  January 1, 2002, may be completed as a Family Administration.
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16                          HOUSE SUMMARY
17
      Revises the Florida Probate Code to clarify current
18    language and to provide consistency throughout the code.
      See bill for details.
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