SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
CHAMBER ACTION
Senate House
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11 Senator Burt moved the following amendment:
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13 Senate Amendment (with title amendment)
14 Delete everything after the enacting clause
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16 and insert:
17 Section 1. Paragraphs (b) and (c) of subsection (1) of
18 section 63.172, Florida Statutes, are amended to read:
19 63.172 Effect of judgment of adoption.--
20 (1) A judgment of adoption, whether entered by a court
21 of this state, another state, or of any other place, has the
22 following effect:
23 (b) It terminates all legal relationships between the
24 adopted person and the adopted person's relatives, including
25 the birth parents, except a birth parent who is a petitioner
26 or who is married to a petitioner, so that the adopted person
27 thereafter is a stranger to his or her former relatives for
28 all purposes, including inheritance and the interpretation or
29 construction of documents, statutes, and instruments, whether
30 executed before or after entry of the adoption judgment, that
31 do not expressly include the adopted person by name or by some
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1 designation not based on a parent and child or blood
2 relationship, except that rights of inheritance shall be as
3 provided in the Florida Probate Code.
4 (c) Except for rights of inheritance, it creates the
5 relationship between the adopted person and the petitioner and
6 all relatives of the petitioner that would have existed if the
7 adopted person were a blood descendant of the petitioner born
8 within wedlock. This relationship shall be created for all
9 purposes, including inheritance and applicability of statutes,
10 documents, and instruments, whether executed before or after
11 entry of the adoption judgment, that do not expressly exclude
12 an adopted person from their operation or effect.
13 Section 2. Section 409.9101, Florida Statutes, is
14 amended to read:
15 409.9101 Recovery for payments made on behalf of
16 Medicaid-eligible persons.--
17 (1) This section may be cited as the "Medicaid Estate
18 Recovery Act."
19 (2) It is the intent of the Legislature by this
20 section to supplement Medicaid funds that are used to provide
21 medical services to eligible persons. Medicaid estate recovery
22 shall generally be accomplished by the agency through the
23 filing a statement of claim claims against the estate of a
24 estates of deceased Medicaid recipient recipients as provided
25 in part VII of chapter 733. Recovery The recoveries shall be
26 made pursuant to federal authority in s. 13612 of the Omnibus
27 Budget Reconciliation Act of 1993, which amends s. 1917(b)(1)
28 of the Social Security Act, 42 U.S.C. s. 1396p(b)(1).
29 (3) Pursuant to s. 733.212(4)(a), the personal
30 representative of the estate of the decedent shall serve the
31 agency with a copy of the notice of administration of the
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1 estate within 3 months after the first publication of the
2 notice, unless the agency has already filed a claim pursuant
3 to this section.
4 (3)(4) The acceptance of public medical assistance, as
5 defined by Title XIX (Medicaid) of the Social Security Act,
6 including mandatory and optional supplemental payments under
7 the Social Security Act, shall create a debt to claim, as
8 defined in s. 731.201, in favor of the agency in as an
9 interested person as defined in s. 731.201. The claim amount
10 is calculated as the total amount paid to or for the benefit
11 of the recipient for medical assistance on behalf of the
12 recipient after the recipient he or she reached 55 years of
13 age. Payment of benefits to a person under the age of 55 years
14 does not create a debt. Upon filing of a statement of claim in
15 the probate proceeding, the agency shall be an interested
16 person as defined in s. 731.201 to the same extent as other
17 estate claimants There is no claim under this section against
18 estates of recipients who had not yet reached 55 years of age.
19 (4)(5) At the time of filing the claim, The agency may
20 reserve the right to amend the claim as a matter of right up
21 to 1 year after the last date medical services were rendered
22 to the decedent amounts based on medical claims submitted by
23 providers subsequent to the agency's initial claim
24 calculation.
25 (5)(6) The claim of the agency shall be the current
26 total allowable amount of Medicaid payments as denoted in the
27 agency's provider payment processing system at the time the
28 agency's claim or amendment is filed. The agency's provider
29 processing system reports shall be admissible as prima facie
30 evidence in substantiating the agency's claim.
31 (7) The claim of the agency under this section shall
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1 constitute a Class 3 claim under s. 733.707(1)(c), as provided
2 in s. 414.28(1).
3 (6)(8) The debt claim created under this section shall
4 not be enforced if the recipient is survived by:
5 (a) A spouse;
6 (b) A child or children under 21 years of age; or
7 (c) A child or children who are blind or permanently
8 and totally disabled pursuant to the eligibility requirements
9 of Title XIX of the Social Security Act.
10 (7)(9) In accordance with s. 4, Art. X of the State
11 Constitution, No debt claim under this section shall be
12 enforced against any property that is determined to be exempt
13 from the claims of creditors under the constitution or laws of
14 this state the homestead of the deceased Medicaid recipient
15 and is determined to be exempt from the claims of creditors of
16 the deceased Medicaid recipient.
17 (8)(10) The agency shall not recover from an estate if
18 doing so would cause undue hardship for the qualified heirs,
19 as defined in s. 731.201. The personal representative of an
20 estate and any heir may request that the agency waive recovery
21 of any or all of the debt when recovery would create a
22 hardship. A hardship does not exist solely because recovery
23 will prevent any heirs from receiving an anticipated
24 inheritance. The following criteria shall be considered by the
25 agency in reviewing a hardship request:
26 (a) The heir:
27 1. Currently resides in the residence of the decedent;
28 2. Resided there at the time of the death of the
29 decedent;
30 3. Has made the residence his or her primary residence
31 for the 12 months immediately preceding the death of the
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1 decedent; and
2 4. Owns no other residence;
3 (b) The heir would be deprived of food, clothing,
4 shelter, or medical care necessary for the maintenance of life
5 or health;
6 (c) The heir can document that he or she provided
7 full-time care to the recipient which delayed the recipient's
8 entry into a nursing home. The heir must be either the
9 decedent's sibling or the son or daughter of the decedent and
10 must have resided with the recipient for at least 1 year prior
11 to the recipient's death; or
12 (d) The cost involved in the sale of the property
13 would be equal to or greater than the value of the property.
14 (9)(11) Instances arise in Medicaid estate-recovery
15 cases where the assets include a settlement of a claim against
16 a liable third party. The agency's claim under s. 409.910 must
17 be satisfied prior to including the settlement proceeds as
18 estate assets. The remaining settlement proceeds shall be
19 included in the estate and be available to satisfy the
20 Medicaid estate-recovery claim. The Medicaid estate-recovery
21 share shall be one-half of the settlement proceeds included in
22 the estate. Nothing in this subsection is intended to limit
23 the agency's rights against other assets in the estate not
24 related to the settlement. However, in no circumstances shall
25 the agency's recovery exceed the total amount of Medicaid
26 medical assistance provided to the recipient.
27 (10)(12) In instances where there are no liquid assets
28 to satisfy the Medicaid estate-recovery claim, if there is
29 nonexempt personal property or nonhomestead real property
30 which is not protected homestead and the costs of sale will
31 not exceed the proceeds, the property shall be sold to satisfy
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1 the Medicaid estate-recovery claim. Real property shall not be
2 transferred to the agency in any instance.
3 (11)(13) The agency is authorized to adopt rules to
4 implement the provisions of this section.
5 Section 3. Section 655.936, Florida Statutes, is
6 amended to read:
7 655.936 Delivery of safe-deposit box contents or
8 property held in safekeeping to personal representative.--
9 (1) Subject to the provisions of subsection (3), the
10 lessor shall immediately deliver to a resident personal
11 representative, upon presentation of a certified copy of his
12 or her letters of authority, all property deposited with it by
13 the decedent for safekeeping, and shall grant the resident
14 personal representative access to any safe-deposit box in the
15 decedent's name and permit him or her to remove from such box
16 any part or all of the contents thereof.
17 (2) If a foreign personal representative of a deceased
18 lessee has been appointed by a court of any other state, a
19 lessor may, at its discretion, after 3 months from the
20 issuance to such foreign personal representative of his or her
21 letters of authority, deliver to such foreign personal
22 representative all properties deposited with it for
23 safekeeping and the contents of any safe-deposit box in the
24 name of the decedent if at such time the lessor has not
25 received written notice of the appointment of a personal
26 representative in this state, and such delivery is a valid
27 discharge of the lessor for all property or contents so
28 delivered. Such foreign personal representative shall furnish
29 the lessor with an affidavit setting forth facts showing the
30 domicile of the deceased lessee to be other than this state
31 and stating that there are no unpaid creditors of the deceased
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1 lessee in this state, together with a certified copy of his or
2 her letters of authority. A lessor making delivery pursuant
3 to this subsection shall maintain in its files a receipt
4 executed by such foreign personal representative which
5 itemizes in detail all property so delivered.
6 (3) Notwithstanding the provisions of subsection (1),
7 after the death of a lessee of a safe-deposit box, the lessor
8 shall permit the initial opening of the safe-deposit box and
9 the removal of the contents of the safe-deposit box and the
10 removal of the contents of the safe-deposit box in accordance
11 with s. 733.6065.
12 (4)(3) A lessor is not liable for damages or penalty
13 by reason of any delivery made pursuant to this section.
14 (4) Notwithstanding other provisions of this section,
15 the initial opening of any safe-deposit box of the decedent
16 must be conducted in the presence of an employee of the
17 institution where the box is located and the personal
18 representative. The inventory of the contents of the box also
19 must be conducted in the presence of the employee and the
20 personal representative, each of whom must verify the contents
21 of the box by signing a copy of the inventory. The personal
22 representative shall file the safe-deposit box inventory with
23 the court within 10 days after the box is opened.
24 Section 4. Section 731.005, Florida Statutes, is
25 amended to read:
26 731.005 Short title.--Chapters 731-735 shall be known
27 and may be cited as the Florida Probate Code and herein
28 referred to as "the "code" in this act.
29 Section 5. Section 731.011, Florida Statutes, is
30 amended to read:
31 731.011 Determination of substantive rights;
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1 procedures.--The code became Florida Probate Code shall become
2 effective on January 1, 1976. The substantive rights of all
3 persons that have vested prior to January 1, 1976, shall be
4 determined as provided in former chapters 731-737 and 744-746
5 as they existed prior to January 1, 1976. The procedures for
6 the enforcement of vested substantive rights that have vested
7 before January 1, 1976, shall be as provided in the Florida
8 Probate Rules this code.
9 Section 6. Section 731.104, Florida Statutes, is
10 amended to read:
11 731.104 Verification of documents.--When verification
12 of a document is required in this code or by rule, the
13 document filed shall include an oath or affirmation as
14 provided in the Florida Probate Rules or the following
15 statement: "Under penalties of perjury, I declare that I have
16 read the foregoing, and the facts alleged are true, to the
17 best of my knowledge and belief." Any person who shall
18 willfully includes include a false statement in the document
19 shall be guilty of perjury and upon conviction shall be
20 punished accordingly.
21 Section 7. Section 731.106, Florida Statutes, is
22 amended to read:
23 731.106 Assets of nondomiciliaries.--
24 (1) For purposes of aiding the determination
25 concerning location of assets that may be relevant in cases
26 involving nondomiciliaries, A debt in favor of a
27 nondomiciliary, other than one evidenced by investment or
28 commercial paper or other instrument, is located in the county
29 where the debtor resides or, if the debtor is not a person
30 other than an individual, at the place where the debtor has
31 its principal office. Commercial paper, investment paper, and
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1 other instruments are located where the instrument is at the
2 time of death.
3 (2) When a nonresident decedent, whether or not who is
4 a citizen of the United States, or a citizen or subject of a
5 foreign country provides by in her or his will that the
6 testamentary disposition of her or his tangible or intangible
7 personal property having a situs within this state, or of her
8 or his real property in this state, shall be construed and
9 regulated by the laws of this state, the validity and effect
10 of the dispositions shall be determined by Florida law. The
11 court may, and in the case of a decedent who was at the time
12 of death a resident of a foreign country the court shall,
13 direct the personal representative appointed in this state to
14 make distribution directly to those designated by the
15 decedent's will as beneficiaries of the tangible or intangible
16 property or to the persons entitled to receive the decedent's
17 personal estate under the laws of the decedent's domicile, as
18 the case may be.
19 Section 8. Section 731.107, Florida Statutes, is
20 repealed:
21 731.107 Adversary proceedings.--The rules of civil
22 procedure shall be applied in any adversary proceeding in
23 probate.
24 Section 9. Section 731.110, Florida Statutes, is
25 amended to read:
26 731.110 Caveat; proceedings.--
27 (1) Any person, including a creditor, who If any
28 creditor of the estate of a decedent is apprehensive that an
29 estate, either testate or intestate, will be administered
30 without the creditor's knowledge, or if any person other than
31 a creditor is apprehensive that an estate may be administered,
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1 or that a will may be admitted to probate, without the
2 person's knowledge, he or she may file a caveat with the
3 court.
4 (2) A No caveat shall contain be effective unless it
5 contains the decedent's social security number, last known
6 residence address, and or date of birth, if they are known, as
7 an identification number, a statement of the interest of the
8 caveator in the estate, the name and specific residence
9 address of the caveator, and, if the caveator, other than a
10 state agency, is a nonresident of the county, the additional
11 name and specific residence address of some person residing in
12 the county, or office address of a member of The Florida Bar
13 residing in Florida, designated as the agent of the caveator,
14 upon whom service may be made.
15 Section 10. Section 731.111, Florida Statutes, is
16 repealed:
17 731.111 Notice to creditors.--
18 (1) When a notice to creditors is required, a notice
19 shall be published once a week for 2 consecutive weeks, two
20 publications being sufficient, in a newspaper published in the
21 county in which the estate is administered or, if there is no
22 newspaper published in the county, in a newspaper of general
23 circulation in that county. Proof of publication shall be
24 filed. The notice shall notify all persons having claims or
25 demands against the estate to file their claims with the clerk
26 within the time periods set forth in s. 733.702 with respect
27 to notice of administration, or be forever barred. The notice
28 shall contain the name of the decedent, the file number of the
29 estate, the designation and address of the court in which the
30 proceedings are pending, the name and address of the person
31 causing the notice to be published, and the name and address
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1 of his or her attorney, and state the date of first
2 publication.
3 (2) Notwithstanding the provisions of subsection (1),
4 the Department of Revenue is not barred from filing a claim
5 against the estate of a decedent for taxes due under chapter
6 199 after the expiration of the time for filing claims
7 provided in subsection (1), provided the department files its
8 claim within 30 days after the service of the inventory or
9 federal estate tax return on the department as provided in s.
10 198.13, whichever shall last occur. Additionally, in the event
11 that the information contained therein is amended or
12 supplemented, the department has the right to file its claim
13 or amend a previously filed claim within 30 days after the
14 service of such information.
15 Section 11. Section 731.201, Florida Statutes, is
16 amended to read:
17 731.201 General definitions.--Subject to additional
18 definitions in subsequent chapters that are applicable to
19 specific chapters or parts, and unless the context otherwise
20 requires, in this code, in s. 409.9101, and in chapters 737,
21 738, and 744:
22 (1) "Authenticated," when referring to copies of
23 documents or judicial proceedings required to be filed with
24 the court under this code, shall mean a certified copy or a
25 copy authenticated according to the Federal Rules of Civil
26 Procedure 28 U.S.C. s. 1733 or s. 1741.
27 (2) "Beneficiary" means heir at law, in an intestate
28 estate, and devisee, in a testate estate. The term
29 "beneficiary" does not apply to an heir at law or a devisee
30 after that person's his or her interest in the estate has been
31 satisfied. In the case of a devise to an existing trust or
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1 trustee, or to a trust or trustee described by will, in the
2 absence of a conflict of interest of the trust, the trustee is
3 a beneficiary of the estate. An owner of a beneficial interest
4 in the trust is a beneficiary of the trust and is, in the
5 absence of a conflict of interest of the trust, not a
6 beneficiary of the estate.
7 (3) "Child" includes a person entitled to take as a
8 child under this code by intestate succession from the parent
9 whose relationship is involved, and excludes any person who is
10 only a stepchild, a foster child, a grandchild, or a more
11 remote descendant.
12 (4) "Claim Claims" means a liability liabilities of
13 the decedent, whether arising in contract, tort, or otherwise,
14 and funeral expense expenses. The term does not include an
15 expense expenses of administration or estate, inheritance,
16 succession, or other death taxes.
17 (5) "Clerk" means the clerk or deputy clerk of the
18 court.
19 (6) "Court" means the circuit court.
20 (7) "Curator" means a person appointed by the court to
21 take charge of the estate of a decedent until letters are
22 issued.
23 (8) "Devise," when used as a noun, means a
24 testamentary disposition of real or personal property and,
25 when used as a verb, means to dispose of real or personal
26 property by will or trust. The term includes "gift," "give,"
27 "bequeath," "bequest," and "legacy." A devise is subject to
28 charges for debts, expenses, and taxes as provided in this
29 code, or in the will, or the trust.
30 (9) "Devisee" means a person designated in a will or
31 trust to receive a devise. In the case of a devise to an
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1 existing trust or trustee, or to a trustee of a trust
2 described by will, the trust or trustee is the devisee. The
3 beneficiaries of the trust are not devisees.
4 (10) "Distributee" means a person who has received
5 estate property from a personal representative or other
6 fiduciary other than as a creditor or purchaser. A
7 testamentary trustee is a distributee only to the extent of
8 distributed assets or increments to them remaining in the
9 trustee's his or her hands. A beneficiary of a testamentary
10 trust to whom the trustee has distributed property received
11 from a personal representative is a distributee. For purposes
12 of this provision, "testamentary trustee" includes a trustee
13 to whom assets are transferred by will, to the extent of the
14 devised assets.
15 (11) "Domicile" means shall be a person's usual place
16 of dwelling and shall be synonymous with "residence."
17 (12) "Estate" means the property of a decedent that is
18 the subject of administration.
19 (13) "Exempt property" means the property of a
20 decedent's estate which is described in s. 732.402.
21 (14) "File" means to file with the court or clerk.
22 (15) "Foreign personal representative" means a
23 personal representative of another state or a foreign country.
24 (16) "Formal notice" means formal notice under the
25 Florida Probate Rules s. 731.301(1).
26 (17) "Grantor" means one who creates or adds to a
27 trust and includes "settlor" or "trustor" and a testator who
28 creates or adds to a trust.
29 (18) "Heirs" or "heirs at law" means those persons,
30 including the surviving spouse, who are entitled under the
31 statutes of intestate succession to the property of a
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1 decedent.
2 (19) "Incompetent" means a minor or a person
3 adjudicated incompetent.
4 (20) "Informal notice" or "notice" means informal
5 notice under the Florida Probate Rules s. 731.301(2).
6 (21) "Interested person" means any person who may
7 reasonably be expected to be affected by the outcome of the
8 particular proceeding involved. In any proceeding affecting
9 the estate or the rights of a beneficiary in the estate, the
10 personal representative of the estate shall be deemed to be an
11 interested person. In any proceeding affecting the expenses
12 of the administration and obligations of a decedent's estate
13 of the estate, or any claims described in s. 733.702(1), the
14 trustee of a trust described in s. 733.707(3) is an interested
15 person in the administration of the grantor's estate. The
16 term does not include a beneficiary an heir at law or a
17 devisee who has received complete his or her distribution.
18 The meaning, as it relates to particular persons, may vary
19 from time to time and must be determined according to the
20 particular purpose of, and matter involved in, any
21 proceedings.
22 (22) "Letters" means authority granted by the court to
23 the personal representative to act on behalf of the estate of
24 the decedent and refers to what has been known as letters
25 testamentary and letters of administration. All letters shall
26 be designated "letters of administration."
27 (23) "Other state" means any state of the United
28 States other than Florida and includes the District of
29 Columbia, the Commonwealth of Puerto Rico, and any territory
30 or possession subject to the legislative authority of the
31 United States.
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1 (24) "Parent" excludes any person who is only a
2 stepparent, foster parent, or grandparent.
3 (25) "Personal representative" means the fiduciary
4 appointed by the court to administer the estate and refers to
5 what has been known as an administrator, administrator cum
6 testamento annexo, administrator de bonis non, ancillary
7 administrator, ancillary executor, or executor.
8 (26) "Petition" means a written request to the court
9 for an order.
10 (27) "Probate of will" means all steps necessary to
11 establish the validity of a will and to admit a will to
12 probate.
13 (28) "Property" means both real and personal property
14 or any interest in it and anything that may be the subject of
15 ownership.
16 (29) "Protected homestead" means the property
17 described in s. 4(a)(1), Art. X of the State Constitution
18 which at the death of the owner the exemption inures to the
19 owner's surviving spouse or heirs under s. 4(b), Art. X of the
20 State Constitution. For purposes of the code, real property
21 owned as tenants by the entirety is not protected homestead.
22 (30)(29) "Residence" means a person's usual place of
23 dwelling. and is synonymous with "domicile."
24 (31)(30) "Residuary devise" means a devise of the
25 assets of the estate which remain after the provision for any
26 devise which is to be satisfied by reference to a specific
27 property or type of property, fund, sum, or statutory amount.
28 If the will contains no devise which is to be satisfied by
29 reference to a specific property or type of property, fund,
30 sum, or statutory amount, "residuary devise" or "residue"
31 means a devise of all assets remaining after satisfying the
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1 obligations of the estate.
2 (32)(31) "Security" means a security as defined in s.
3 517.021.
4 (33)(32) "Security interest" means a security interest
5 as defined in s. 671.201.
6 (34)(33) "Trust" means an express trust, private or
7 charitable, with additions to it, wherever and however
8 created. It also includes a trust created or determined by a
9 judgment or decree under which the trust is to be administered
10 in the manner of an express trust. "Trust" excludes other
11 constructive trusts, and it excludes resulting trusts;
12 conservatorships; personal representatives; custodial
13 arrangements pursuant to the Florida Uniform Transfers Gifts
14 to Minors Act; business trusts providing for certificates to
15 be issued to beneficiaries; common trust funds; land trusts
16 under s. 689.05; trusts created by the form of the account or
17 by the deposit agreement at a financial institution; voting
18 trusts; security arrangements; liquidation trusts; trusts for
19 the primary purpose of paying debts, dividends, interest,
20 salaries, wages, profits, pensions, or employee benefits of
21 any kind; and any arrangement under which a person is nominee
22 or escrowee for another.
23 (35)(34) "Trustee" includes an original, additional,
24 surviving, or successor trustee, whether or not appointed or
25 confirmed by court.
26 (36)(35) "Will" means an instrument, including a
27 codicil, executed by a person in the manner prescribed by this
28 code, which disposes of the person's property on or after his
29 or her death and includes an instrument which merely appoints
30 a personal representative or revokes or revises another will.
31 Section 12. Section 731.301, Florida Statutes, is
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1 amended to read:
2 731.301 Notice; method and time; proof.--
3 (1) FORMAL NOTICE.--
4 (a) When formal notice to an interested person of a
5 petition or other proceeding is required, the notice shall be
6 given to the petitioner shall serve a copy of the petition to
7 any interested person or that person's her or his attorney as
8 provided in the Florida Probate Rules, if the interested
9 person has appeared by attorney or requested that notice be
10 sent to her or his attorney. The petition shall be served:
11 1. By any form of mail or by any commercial delivery
12 service approved by the chief judge of each judicial circuit,
13 requiring a signed receipt, as follows:
14 a. On the interested person's attorney of record, if
15 any, or to the post-office address given in her or his demand
16 for notice, if any;
17 b. On an individual, other than an incompetent, by
18 mailing a copy to the individual's dwelling house or usual
19 place of abode or to the place where she or he regularly
20 conducts her or his business or profession;
21 c. On an incompetent person, by mailing a copy to the
22 incompetent, to the person having custody of the incompetent,
23 and to any legal guardian of the incompetent, at their
24 respective dwelling houses, usual places of abode, or regular
25 places of business or profession;
26 d. On a corporation, by mailing a copy to the
27 corporation at its last known address; or
28 2. As provided in chapter 48; or
29 3. In the circumstances provided in chapter 49, in the
30 manner provided therein.
31 (b) If there is no answer served on the petitioner
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1 within 20 days from the service of the petition, the petition
2 shall be considered ex parte. If an answer is served, a
3 hearing shall be set and reasonable notice given.
4 (c) If service is made under subparagraph (a)2. or
5 subparagraph (a)3., proof shall be made as provided in chapter
6 48 or chapter 49. If service is made by mail under
7 subparagraph (a)1., proof shall be by a verified statement of
8 the person mailing service who shall attach the signed receipt
9 or other evidence satisfactory to the court that delivery was
10 made to, or refused by, the addressee or the addressee's
11 agent.
12 (2)(d) Formal notice shall be sufficient to acquire
13 jurisdiction over the person receiving formal notice to the
14 extent of the person's interest in the estate.
15 (2) INFORMAL NOTICE.--
16 (a) When informal notice of a petition or other
17 proceeding is required or permitted, it shall be served on the
18 person or the person's attorney as provided in the Florida
19 Rules of Civil Procedure relating to service of pleadings.
20 (b) Proof of service shall be made by filing an
21 attorney's certificate of service or, if filed by a person who
22 is not a member of The Florida Bar, by a verified statement.
23 (3) EFFECT OF NOTICE.--Persons given notice of any
24 proceeding petition shall be bound by all orders entered in
25 that proceeding on the petition.
26 (4) INFORMAL NOTICE REQUIRED.--Unless otherwise
27 specifically provided, informal notice of every petition
28 affecting property rights or interests must be given to
29 interested persons.
30 Section 13. Section 731.303, Florida Statutes, is
31 amended to read:
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1 731.303 Representation.--In proceedings involving
2 estates of decedents or trusts, the following apply:
3 (1) Interests to be affected shall be described in
4 pleadings that give information by name or class, by reference
5 to the instrument creating the interests, or in another
6 appropriate manner.
7 (1)(2) Persons are bound by orders binding others in
8 the following cases:
9 (a) Orders binding the sole holder or all coholders of
10 a power of revocation or a general, special, or limited power
11 of appointment, including one in the form of a power of
12 amendment or revocation to the extent that the power has not
13 become unexercisable in fact, bind all persons to the extent
14 that their interests, as persons who may take by virtue of the
15 exercise or nonexercise of the power, are subject to the
16 power.
17 (b) To the extent there is no conflict of interest
18 between them or among the persons represented:
19 1. Orders binding a guardian of the property bind the
20 ward whose estate he or she controls.
21 2. Orders binding a trustee bind beneficiaries of the
22 trust in proceedings to probate a will, in establishing or
23 adding to a trust, in reviewing the acts or accounts of a
24 prior fiduciary, and in proceedings involving creditors or
25 other third parties.
26 3. Orders binding a personal representative bind
27 persons interested in the undistributed assets of a decedent's
28 estate, in actions or proceedings by or against the estate.
29 (c) An unborn or unascertained person, or a minor or
30 any other person under a legal disability, who is not
31 otherwise represented is bound by an order to the extent that
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1 person's his or her interest is represented by another party
2 having the same or greater quality of interest in the
3 proceeding.
4 (2)(3) Orders binding a guardian of the person shall
5 not bind the ward.
6 (3)(4) Notice is required as follows:
7 (a) Notice as prescribed by the Florida Probate Rules
8 s. 731.301 shall be given to every interested person, or to
9 one who can bind the interested person as described in
10 paragraph (1)(2)(a) or paragraph (1)(2)(b). Notice may be
11 given both to the interested person and to another who can
12 bind him or her.
13 (b) Notice is given to unborn or unascertained persons
14 who are not represented pursuant to paragraph (1)(2)(a) or
15 paragraph (1)(2)(b) by giving notice to all known persons
16 whose interests in the proceedings are the same as, or of a
17 greater quality than, those of the unborn or unascertained
18 persons.
19 (4)(5) If the court determines that representation of
20 the interest would otherwise be inadequate, the court may, at
21 any time, appoint a guardian ad litem to represent the
22 interests of an incapacitated incompetent person, an unborn or
23 unascertained person, a minor or any other person otherwise
24 under a legal disability, or a person whose identity or
25 address is unknown. If not precluded by conflict of interest,
26 a guardian ad litem may be appointed to represent several
27 persons or interests.
28 (5)(6) Agreements, waivers, consents, approvals,
29 accounts, or other statements that fully disclose the matters
30 that which are the subject of the such accounts or statements
31 and that bind the sole holder or all coholders of a general,
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1 special, or limited power of appointment, including a power of
2 amendment or revocation to the extent that the power has not
3 become unexercisable in fact, bind all persons to the extent
4 that their interests, as persons who may take by virtue of the
5 exercise or nonexercise of the power, are subject to the
6 power.
7 Section 14. Subsection (2) of section 732.101, Florida
8 Statutes, is amended to read:
9 732.101 Intestate estate.--
10 (2) The decedent's death is the event that vests the
11 heirs' right to the decedent's intestate property.
12 Section 15. Section 732.102, Florida Statutes, is
13 amended to read:
14 732.102 Spouse's share of intestate estate Share of
15 spouse.--
16 (1) The intestate share of the surviving spouse is:
17 (1)(a) If there is no surviving lineal descendant of
18 the decedent, the entire intestate estate.
19 (2)(b) If there are surviving lineal descendants of
20 the decedent, all of whom are also lineal descendants of the
21 surviving spouse also, the first $60,000 $20,000 of the
22 intestate estate, plus one-half of the balance of the
23 intestate estate. Property allocated hereunder to the
24 surviving spouse to satisfy the $60,000 $20,000 shall be
25 valued at the fair market value on the date of distribution
26 the decedent's death.
27 (3)(c) If there are surviving lineal descendants, one
28 or more of whom are not lineal descendants of the surviving
29 spouse, one-half of the intestate estate.
30 (2) The court shall allot the property to which the
31 spouse is entitled, treating all beneficiaries equitably.
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1 Section 16. Paragraph (c) of subsection (4) and
2 subsection (5) of section 732.103, Florida Statutes, are
3 amended to read:
4 732.103 Share of other heirs.--The part of the
5 intestate estate not passing to the surviving spouse under s.
6 732.102, or the entire intestate estate if there is no
7 surviving spouse, descends as follows:
8 (4) If there is none of the foregoing, the estate
9 shall be divided, one-half of which shall go to the decedent's
10 paternal, and the other half to the decedent's maternal,
11 kindred in the following order:
12 (c) If there is either no paternal kindred or if there
13 is no maternal kindred, the estate shall go to such of the
14 other kindred who as shall survive, in the order stated above
15 aforesaid.
16 (5) If there is no kindred of either part, the whole
17 of the such property shall go to the kindred of the last
18 deceased spouse of the decedent as if the deceased spouse had
19 survived the decedent and then died intestate entitled to the
20 estate.
21 Section 17. Section 732.107, Florida Statutes, is
22 amended to read:
23 732.107 Escheat.--
24 (1) When a person dies leaving an estate dies without
25 being survived by any person entitled to a part of it, that
26 part the property shall escheat to the state.
27 (2)(a) In this event, or when doubt exists about the
28 existence of any person entitled to the estate, the personal
29 representative shall institute a proceeding for the
30 determination of beneficiaries, as provided in this code,
31 within 1 year after letters have been issued to him or her,
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1 and notice shall be served on the Department of Legal Affairs.
2 If the personal representative fails to institute the
3 proceeding within the time fixed, it may be instituted by the
4 Department of Legal Affairs.
5 (b) On or before January 15 of each year, each court
6 shall furnish to the department a list of all estates being
7 administered in which no person appears to be entitled to the
8 property and the personal representative has not instituted a
9 proceeding for the determination of beneficiaries.
10 (3) If the court determines that there is no person
11 entitled to the estate and that the estate escheats, the
12 Property that escheats shall be sold as provided in the
13 Florida Probate Rules and the proceeds paid to the Treasurer
14 of the state and deposited by him or her in the State School
15 Fund within a reasonable time to be fixed by the court.
16 (3)(4) At any time within 10 years after the payment
17 to the Treasurer granting of letters, a person claiming to be
18 entitled to the proceeds estate of the decedent may petition
19 to reopen the administration to and assert entitlement his or
20 her rights to the proceeds escheated property. If the claimant
21 is entitled to any of the estate of the decedent, the court
22 shall fix the amount to which he or she is entitled, and it
23 shall be repaid to him or her with interest at the legal rate
24 by the officials charged with the disbursement of state school
25 funds. If no claim is timely asserted within the time fixed,
26 the title of the state's rights to state to the property and
27 the proceeds shall become absolute.
28 (4)(5) The Department of Legal Affairs shall represent
29 the state in all proceedings concerning escheated estates.
30 (5)(6)(a) If a person entitled to the proceeds funds
31 assigns the his or her rights to receive payment to an
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1 attorney, Florida-certified public accountant, or private
2 investigative agency which is duly licensed to do business in
3 this state pursuant to a written agreement with that such
4 person, the Department of Banking and Finance is authorized to
5 make distribution in accordance with the such assignment.
6 (b) Payments made to an attorney, Florida-certified
7 public accountant, or private investigative agency shall be
8 promptly deposited into a trust or escrow account which is
9 regularly maintained by the attorney, Florida-certified public
10 accountant, or private investigative agency in a financial
11 institution authorized to accept such deposits and located in
12 this state.
13 (c) Distribution by the attorney, Florida-certified
14 public accountant, or private investigative agency to the
15 person entitled to the proceeds funds shall be made within 10
16 days following final credit of the deposit into the trust or
17 escrow account at the financial institution, unless a party to
18 the agreement protests the in writing such distribution in
19 writing before it is made.
20 (d) The department shall not be civilly or criminally
21 liable for any proceeds funds distributed pursuant to this
22 subsection, provided such distribution is made in good faith.
23 (7) Except as herein provided, escheated estates shall
24 be administered as other estates.
25 Section 18. Section 732.1101, Florida Statutes, is
26 amended to read:
27 732.1101 Aliens.--Aliens shall have the same rights of
28 inheritance as citizens No person is disqualified to take as
29 an heir because he or she, or a person through whom he or she
30 claims, is, or has been, an alien.
31 Section 19. Effective October 1, 2001, subsection (8)
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1 of section 732.2025, Florida Statutes, is amended to read:
2 732.2025 Definitions.--As used in ss.
3 732.2025-732.2155, the term:
4 (8) "Qualifying special needs trust" or "supplemental
5 needs trust" means a trust established for a an ill or
6 disabled surviving spouse with court approval before or after
7 a decedent's death for such incapacitated surviving spouse,
8 if, commencing on the decedent's death:
9 (a) The income and principal are distributable to or
10 for the benefit of the spouse for life in the discretion of
11 one or more trustees less than half of whom are ineligible
12 family trustees. For purposes of this paragraph, ineligible
13 family trustees include the decedent's grandparents and any
14 descendants of the decedent's grandparents who are not also
15 descendants of the surviving spouse; and
16 (b) During the spouse's life, no person other than the
17 spouse has the power to distribute income or principal to
18 anyone other than the spouse.
19
20 (c) The requirement for court approval and the limitation on
21 ineligible family trustees shall not apply if the aggregate
22 value of all the trust property as of the applicable valuation
23 date in all a qualifying special needs trusts for the spouse
24 trust is less than $100,000. For purposes of this subsection,
25 value is determined on the "applicable valuation date" as
26 defined in s. 732.2095(1)(a).
27 Section 20. Effective October 1, 2001, subsection (2)
28 and paragraph (a) of subsection (5) of section 732.2035,
29 Florida Statutes, are amended to read:
30 732.2035 Property entering into elective
31 estate.--Except as provided in s. 732.2045, the elective
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1 estate consists of the sum of the values as determined under
2 s. 732.2055 of the following property interests:
3 (2) The decedent's ownership interest in accounts or
4 securities registered in "Pay On Death," "Transfer On Death,"
5 "In Trust For," or coownership with right of survivorship
6 form. For this purpose, "decedent's ownership interest"
7 means, in the case of accounts or securities held in tenancy
8 by the entirety, one-half of the value of the account or
9 security, and in all other cases, that portion of the accounts
10 or securities which the decedent had, immediately before
11 death, the right to withdraw or use without the duty to
12 account to any person.
13 (5)(a) That portion of property, other than property
14 described in subsection (3), subsection (4), or subsection
15 (7), transferred by the decedent to the extent that at the
16 time of the decedent's death:
17 1. The decedent possessed the right to, or in fact
18 enjoyed the possession or use of, the income or principal of
19 the property; or
20 2. The principal of the property could, in the
21 discretion of any person other than the spouse of the
22 decedent, be distributed or appointed to or for the benefit of
23 the decedent.
24
25 In the application of this subsection, a right to payments
26 under a commercial or private from an annuity, an annuity
27 trust, a unitrust, or under a similar contractual arrangement
28 shall be treated as a right to that portion of the income of
29 the property necessary to equal the annuity, unitrust, or
30 other contractual payment.
31 Section 21. Effective October 1, 2001, subsection (1)
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1 of section 732.2045, Florida Statutes, is amended to read:
2 732.2045 Exclusions and overlapping application.--
3 (1) EXCLUSIONS.--Section 732.2035 does not apply to:
4 (a) Except as provided in s. 732.2155(4), any transfer
5 of property by the decedent to the extent the transfer is
6 irrevocable before the effective date of this subsection or
7 after that date but before the date of the decedent's marriage
8 to the surviving spouse.
9 (b) Any transfer of property by the decedent to the
10 extent the decedent received adequate consideration in money
11 or money's worth for the transfer.
12 (c) Any transfer of property by the decedent made with
13 the written consent of the decedent's spouse. For this
14 purpose, spousal consent to split-gift treatment under the
15 United States gift tax laws does not constitute written
16 consent to the transfer by the decedent.
17 (d) The proceeds of any policy of insurance on the
18 decedent's life in excess of the net cash surrender value of
19 the policy whether payable to the decedent's estate, a trust,
20 or in any other manner.
21 (e) Any policy of insurance on the decedent's life
22 maintained pursuant to a court order.
23 (f) The decedent's one-half of the property to which
24 ss. 732.216-732.228 apply and real property that is community
25 property under the laws of the jurisdiction where it is
26 located.
27 (g) Property held in a qualifying special needs trust
28 on the date of the decedent's death.
29 (h) Property included in the gross estate of the
30 decedent for federal estate tax purposes solely because the
31 decedent possessed a general power of appointment.
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1 (i) Property which constitutes the protected homestead
2 of the decedent whether held by the decedent or by a trust at
3 the decedent's death.
4 Section 22. Effective October 1, 2001, paragraph (a)
5 of subsection (5) of section 732.2055, Florida Statutes, is
6 amended to read:
7 732.2055 Valuation of the elective estate.--For
8 purposes of s. 732.2035, "value" means:
9 (5) In the case of all other property, the fair market
10 value of the property on the date of the decedent's death,
11 computed after deducting from the total value of the property:
12 (a) All claims, other than claims for funeral
13 expenses, paid or payable from the elective estate; and
14 Section 23. Effective October 1, 2001, subsection (2)
15 of section 732.2075, Florida Statutes, is amended to read:
16 732.2075 Sources from which elective share payable;
17 abatement.--
18 (2) If, after the application of subsection (1), the
19 elective share is not fully satisfied, the unsatisfied balance
20 shall be apportioned among the direct recipients of the
21 remaining elective estate in the following order of priority:
22 (a) Class 1.--The decedent's probate estate and
23 revocable trusts.
24 (b) Class 2.--Recipients of property interests, other
25 than protected charitable interests, included in the elective
26 estate under s. 732.2035(2), (3), or (6) and, to the extent
27 the decedent had at the time of death the power to designate
28 the recipient of the property, property interests, other than
29 protected charitable interests, included under s. 732.2035(5)
30 and (7).
31 (c) Class 3.--Recipients of all other property
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1 interests, other than protected charitable interests, included
2 in the elective estate except interests for which a charitable
3 deduction with respect to the transfer of the property was
4 allowed or allowable to the decedent or the decedent's spouse
5 under the United States gift tax laws.
6 (d) Class 4.--Recipients of protected charitable lead
7 interests, but only to the extent and at such times that
8 contribution is permitted without disqualifying the charitable
9 interest in that property for a deduction under the United
10 States gift tax laws.
11
12 For purposes of this subsection, a protected charitable
13 interest is any interest for which a charitable deduction with
14 respect to the transfer of the property was allowed or
15 allowable to the decedent or the decedent's spouse under the
16 United States gift tax laws. A protected charitable lead
17 interest is a protected charitable interest where one or more
18 deductible interests in charity precede some other
19 nondeductible interest or interests in the property.
20 Section 24. Effective October 1, 2001, paragraph (a)
21 of subsection (1) and paragraph (a) of subsection (3) of
22 section 732.2085, Florida Statutes, are amended to read:
23 732.2085 Liability of direct recipients and
24 beneficiaries.--
25 (1) Only direct recipients of property included in the
26 elective estate and the beneficiaries of the decedent's
27 probate estate or of any trust that is a direct recipient, are
28 liable to contribute toward satisfaction of the elective
29 share.
30 (a) Within each of the classes described in s.
31 732.2075(2)(b), and (c), and (d), each direct recipient is
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1 liable in an amount equal to the value, as determined under s.
2 732.2055, of the proportional part of the liability for all
3 members of the class.
4 (3) If a person pays the value of the property on the
5 date of a sale or exchange or contributes all of the property
6 received, as provided in paragraph (2)(b):
7 (a) No further contribution toward satisfaction of the
8 elective share shall be required with respect to that such
9 property.
10 Section 25. Effective October 1, 2001, paragraph (a)
11 of subsection (1) and paragraph (d) of subsection (2) of
12 section 732.2095, Florida Statutes, are amended to read:
13 732.2095 Valuation of property used to satisfy
14 elective share.--
15 (1) DEFINITIONS.--As used in this section, the term:
16 (a) "Applicable valuation date" means:
17 1. In the case of transfers in satisfaction of the
18 elective share, the date of the decedent's death.
19 2. In the case of property held in a qualifying
20 special needs trust on the date of the decedent's death, the
21 date of the decedent's death.
22 3. In the case of other property irrevocably
23 transferred to or for the benefit of the surviving spouse
24 during the decedent's life, the date of the transfer.
25 4. In the case of property distributed to the
26 surviving spouse by the personal representative, the date of
27 distribution.
28 5. Except as provided in subparagraphs 1., 2., and 3.,
29 in the case of property passing in trust for the surviving
30 spouse, the date or dates the trust is funded in satisfaction
31 of the elective share.
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1 6. In the case of property described in s. 732.2035(2)
2 or (3) or (4), the date of the decedent's death.
3 7. In the case of proceeds of any policy of insurance
4 payable to the surviving spouse, the date of the decedent's
5 death.
6 8. In the case of amounts payable to the surviving
7 spouse under any plan or arrangement described in s.
8 732.2035(7), the date of the decedent's death.
9 9. In all other cases, the date of the decedent's
10 death or the date the surviving spouse first comes into
11 possession of the property, whichever occurs later.
12 (2) Except as provided in this subsection, the value
13 of property for purposes of s. 732.2075 is the fair market
14 value of the property on the applicable valuation date.
15 (d) If the surviving spouse has an interest in a trust
16 that does not meet the requirements of either an elective
17 share trust or a qualifying special needs trust, the value of
18 the spouse's interest is the transfer tax value of the
19 interest on the applicable valuation date; however, the
20 aggregate value of all of the spouse's interests in the trust
21 shall not exceed one-half of the value of the trust principal
22 on the applicable valuation date.
23 Section 26. Effective October 1, 2001, section
24 732.2105, Florida Statutes, is amended to read:
25 732.2105 Effect of election on other interests.--
26 (1) The elective share shall be in addition to
27 homestead, exempt property, and allowances as provided in part
28 IV.
29 (2) If an election is filed, the balance of the
30 elective estate, after the application of s. 732.2145(1),
31 shall be administered as though the surviving spouse had
31
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1 predeceased the decedent.
2 Section 27. Effective October 1, 2001, subsection (2)
3 of section 732.2125, Florida Statutes, is amended to read:
4 732.2125 Right of election; by whom exercisable.--The
5 right of election may be exercised:
6 (2) With approval of the court having jurisdiction of
7 the probate proceeding by an attorney in fact or a guardian of
8 the property of the surviving spouse, with approval of the
9 court having jurisdiction of the probate proceeding. The court
10 shall determine the election as the best interests of the
11 surviving spouse, during the spouse's probable lifetime,
12 require.
13 Section 28. Effective October 1, 2001, section
14 732.2135, Florida Statutes, is amended to read:
15 732.2135 Time of election; extensions; withdrawal.--
16 (1) Except as provided in subsection (2), the election
17 must be filed within the earlier of 6 months of the date of
18 service of a copy of the first publication of notice of
19 administration on the surviving spouse, or an attorney in fact
20 or guardian of the property of the surviving spouse, or 2
21 years after the date of the decedent's death.
22 (2) Within the period provided in subsection (1), the
23 surviving spouse or an attorney in fact or guardian of the
24 property of the surviving spouse may petition the court for an
25 extension of time for making an election. After notice and
26 hearing, the court For good cause shown the court may extend
27 the time for election. If the court grants the petition for an
28 extension, the election must be filed within the time allowed
29 by the extension.
30 (3) The surviving spouse or an attorney in fact,
31 guardian of the property, or personal representative of the
32
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1 surviving spouse may withdraw an election at any time within 8
2 months of the decedent's death and before the court's order of
3 contribution. If an election is withdrawn, the court may
4 assess attorney's fees and costs against the surviving spouse
5 or the surviving spouse's estate.
6 (4) A petition for an extension of the time for making
7 the election or for approval to make the election shall toll
8 the time for making the election.
9 Section 29. Effective October 1, 2001, subsections (1)
10 and (4) of section 732.2145, Florida Statutes, are amended to
11 read:
12 732.2145 Order of contribution; personal
13 representative's duty to collect contribution.--
14 (1) The court shall determine the elective share and
15 shall order contribution. All Contributions shall are to bear
16 interest at the statutory rate provided in s. 55.03(1)
17 beginning 90 days after from the date of the order of
18 contribution. The order of contribution is prima facie correct
19 in proceedings in any court or jurisdiction.
20 (4) Nothing in this section limits the independent
21 right of the surviving spouse to collect the elective share as
22 provided in the order of contribution, and that right is
23 hereby conferred. If the surviving spouse brings an action to
24 enforce the an order of contribution, the judgment shall
25 include the surviving spouse's costs and reasonable attorney's
26 fees.
27 Section 30. Effective October 1, 2001, subsection (4)
28 of section 732.2155, Florida Statutes, is amended, and
29 subsection (6) is added to said section, to read:
30 732.2155 Effective date; effect of prior waivers;
31 transition rules.
33
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1 (4) Notwithstanding anything in s. 732.2045(1)(a) to
2 the contrary, any trust created by the decedent before the
3 effective date of ss. 732.201-732.2145 this section that meets
4 the requirements of an elective share trust is treated as if
5 the decedent created the trust after the effective date of
6 these sections this subsection and in satisfaction of the
7 elective share.
8 (6) Sections 732.201-732.2155 do not affect any
9 interest in property held, as of the decedent's death, in a
10 trust, whether revocable or irrevocable, if:
11 (a) The property was an asset of the trust at all
12 times between October 1, 1999 and the date of the decedent's
13 death;
14 (b) The decedent was not married to the decedent's
15 surviving spouse when the property was transferred to the
16 trust; and
17 (c) The property was a nonmarital asset as defined in
18 s. 61.075 immediately prior to the decedent's death.
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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Amendment No. ___ Barcode 192000
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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Amendment No. ___ Barcode 192000
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 (2) Subsection (1) shall not apply to If the decedent
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Amendment No. ___ Barcode 192000
1 was domiciled in Florida and resided on real property that the
2 decedent and the surviving spouse owned as tenants by the
3 entirety, the real property shall not be homestead property.
4 Section 38. Subsection (2) of section 732.4015,
5 Florida Statutes, is amended to read:
6 732.4015 Devise of homestead.--
7 (2) For the purposes of subsection (1), the term:
8 (a) "Owner" includes the grantor settlor of a trust
9 described in s. 733.707(3) that is evidenced by a written
10 instrument which is in existence at the time of the grantor's
11 settlor's death as if the interest held in trust was owned by
12 the grantor pursuant to which the settlor retained the right
13 either alone or in conjunction with any other person to amend
14 or revoke the trust at any time before his or her death.
15 (b) "Devise" includes a disposition by trust of that
16 portion of the trust estate which, if titled in the name of
17 the grantor settlor of the trust, would be the grantor's
18 settlor's homestead.
19 Section 39. Subsections (4) and (6) of section
20 732.402, Florida Statutes, are amended, and subsection (7) is
21 added to said section, to read:
22 732.402 Exempt property.--
23 (4) Exempt property shall be in addition to protected
24 homestead, statutory entitlements, and any property passing
25 under to the surviving spouse or heirs of the decedent under
26 s. 4, Art. X of the State Constitution or the decedent's will,
27 or by intestate succession, elective share, or family
28 allowance.
29 (6) Persons entitled to exempt property shall be
30 deemed to have waived their rights under this section unless a
31 petition for determination of exempt property is filed by or
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1 on behalf of the persons entitled to the exempt property
2 within 4 months after the date of service the first
3 publication of the notice of administration or within 40 days
4 from the date of termination of any proceeding involving the
5 construction, admission to probate, or validity of the will or
6 involving any other matter affecting any part of the estate
7 subject to this section.
8 (7) Property determined as exempt under this section
9 shall be excluded from the value of the estate before
10 residuary, intestate, or pretermitted or elective shares are
11 determined.
12 Section 40. Section 732.403, Florida Statutes, is
13 amended to read:
14 732.403 Family allowance.--In addition to protected
15 homestead and statutory entitlements exempt property, if the
16 decedent was domiciled in Florida at the time of death, the
17 surviving spouse and the decedent's lineal heirs whom the
18 decedent was supporting or was obligated to support or who
19 were in fact being supported by him or her are entitled to a
20 reasonable allowance in money out of the estate for their
21 maintenance during administration. After notice and hearing,
22 The court may order this allowance to be paid as a lump sum or
23 in periodic installments. The allowance shall not exceed a
24 total of $18,000 $6,000. It shall be paid to the surviving
25 spouse, if living, for the use of the spouse and dependent
26 lineal heirs. If the surviving spouse is not living, it shall
27 be paid to the lineal heirs or to the persons having their
28 care and custody. If any lineal heir is not living with the
29 surviving spouse, the allowance may be made partly to the
30 lineal heir or his or her guardian or other person having the
31 lineal heir's care and custody and partly to the surviving
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Amendment No. ___ Barcode 192000
1 spouse, as the needs of the dependent lineal heir and the
2 surviving spouse appear. The family allowance shall have the
3 priority established by s. 733.707. The family allowance is
4 not chargeable against any benefit or share otherwise passing
5 to the surviving spouse or to the dependent lineal heirs by
6 intestate succession, elective share, or the will of the
7 decedent, unless the will otherwise provides. The death of any
8 person entitled to a family allowance terminates the his or
9 her right to that the part of the allowance not paid. For
10 purposes of this section, the term "lineal heir" or "lineal
11 heirs" means lineal ascendants and lineal descendants of the
12 decedent.
13 Section 41. Section 732.501, Florida Statutes, is
14 amended to read:
15 732.501 Who may make a will.--Any person who is of
16 sound mind and who is either 18 or more years of age or an
17 emancipated minor 18 or more years of age who is of sound mind
18 may make a will.
19 Section 42. Paragraph (a) of subsection (1) and
20 subsection (2) of section 732.502, Florida Statutes, are
21 amended to read:
22 732.502 Execution of wills.--Every will must be in
23 writing and executed as follows:
24 (1)(a) Testator's signature.--
25 1. The testator must sign the will at the end; or
26 2. The testator's name must be subscribed at the end
27 of the will by some other person in the testator's presence
28 and by the testator's his or her direction.
29 (2) Any will, other than a holographic or nuncupative
30 will, executed by a nonresident of Florida, either before or
31 after this law takes effect, is valid as a will in this state
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1 if valid under the laws of the state or country where the will
2 was executed testator was at the time of execution. A will in
3 the testator's handwriting that has been executed in
4 accordance with subsection (1) shall not be considered a
5 holographic will.
6 Section 43. Section 732.503, Florida Statutes, is
7 amended to read:
8 732.503 Self-proof of will.--
9 (1) A will or codicil executed in conformity with s.
10 732.502(1) and (2) may be made self-proved at the time of its
11 execution or at any subsequent date by the acknowledgment of
12 it by the testator and the affidavits of the witnesses, each
13 made before an officer authorized to administer oaths and
14 evidenced by the officer's certificate attached to or
15 following the will, in substantially the following form:
16
17 STATE OF FLORIDA
18 COUNTY OF ....
19 I, , declare to the officer taking my
20 acknowledgment of this instrument, and to the subscribing
21 witnesses, that I signed this instrument as my will.
22
23
24 ________________________
25 Testator
26
27 We, and , have been sworn by the
28 officer signing below, and declare to that officer on our
29 oaths that the testator declared the instrument to be the
30 testator's will and signed it in our presence and that we each
31 signed the instrument as a witness in the presence of the
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1 testator and of each other.
2
3
4 ________________________
5 Witness
6
7 ________________________
8 Witness
9
10 Acknowledged and subscribed before me by the testator,
11 (type or print testator's name), who is personally known to me
12 or who has produced (state type of identification - see s.
13 117.05(5)(b)2.) as identification, and sworn to and subscribed
14 before me by the witnesses, (type or print name of first
15 witness) who is personally known to me or who has produced
16 (state type of identification - see s. 117.05(5)(b)2.) as
17 identification and (type or print name of second witness) who
18 is personally known to me or who has produced (state type of
19 identification - see s. 117.05(5)(b)2.) as identification, and
20 subscribed by me in the presence of the testator and the
21 subscribing witnesses, all on (date).
22 (Signature of Officer)
23 (Print, type, or stamp commissioned name and affix official
24 seal)
25
26 (2) A will or codicil made self-proved under former
27 law, or executed in another state and made self-proved under
28 the laws of that state, shall be considered as self-proved
29 under this section.
30
31 STATE OF ....
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1 COUNTY OF ....
2 We, ...., ...., and .... the testator and the
3 witnesses, respectively, whose names are signed to the
4 attached or foregoing instrument, having been sworn, declared
5 to the undersigned officer that the testator, in the presence
6 of witnesses, signed the instrument as the testator's last
7 will (codicil), that the testator (signed) (or directed
8 another to sign for him or her), and that each of the
9 witnesses, in the presence of the testator and in the presence
10 of each other, signed the will as a witness.
11 ...(Testator)...
12 ...(Witness)...
13 ...(Witness)...
14 Subscribed and sworn to before me by ...., the testator
15 who is personally known to me or who has produced ...(type of
16 identification)... as identification, and by ...., a witness
17 who is personally known to me or who has produced ...(type of
18 identification)... as identification, and by ...., a witness
19 who is personally known to me or who has produced ...(type of
20 identification)... as identification, on ...., ...(year)....
21 ...(Signature of Notary Public)...
22 ...(Print, type, or stamp commissioned name of Notary
23 Public)...
24
25 Section 44. Section 732.505, Florida Statutes, is
26 amended to read:
27 732.505 Revocation by writing.--A will or codicil, or
28 any part of either, is revoked:
29 (1) By a subsequent inconsistent will or codicil, even
30 though the subsequent inconsistent will or codicil does not
31 expressly revoke all previous wills or codicils, but the
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1 revocation extends only so far as the inconsistency exists.
2 (2) By a subsequent written will, codicil, or other
3 writing executed with the same formalities required for the
4 execution of wills declaring the revocation, if the same
5 formalities required for the execution of wills are observed
6 in the execution of the will, codicil, or other writing.
7 Section 45. Section 732.507, Florida Statutes, is
8 amended to read:
9 732.507 Effect of subsequent marriage, birth, or
10 dissolution of marriage.--
11 (1) Neither subsequent marriage, nor subsequent
12 marriage and birth, nor or adoption of lineal descendants
13 shall revoke the prior will of any person, but the
14 pretermitted child or spouse shall inherit as set forth in ss.
15 732.301 and 732.302, regardless of the prior will.
16 (2) Any provision provisions of a will executed by a
17 married person that, which provision affects the spouse of
18 that person, shall become void upon the divorce of that person
19 or upon the dissolution or annulment of the marriage. After
20 the dissolution, divorce, or annulment, the any such will
21 shall be administered and construed as if the former spouse
22 had died at the time of the dissolution, divorce, or annulment
23 of the marriage, unless the will or the dissolution or divorce
24 judgment expressly provides otherwise.
25 Section 46. Paragraph (d) of subsection (2) and
26 subsections (3) and (6) of section 732.513, Florida Statutes,
27 are amended to read:
28 732.513 Devises to trustee.--
29 (2) The devise shall not be invalid for any or all of
30 the following reasons:
31 (d) Because the only res of the trust is the possible
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1 expectancy of receiving, as a named beneficiary, a devise
2 under a will or death benefits as described in s. 733.808, and
3 even though the testator or other person has reserved any or
4 all rights of ownership in the such death benefit policy,
5 contract, or plan, including the right to change the
6 beneficiary.
7 (3) The devise shall dispose of property under the
8 terms of the instrument that created the trust as previously
9 or subsequently theretofore or thereafter amended.
10 (6) This section shall be cumulative to all laws
11 touching upon the subject matter.
12 Section 47. Section 732.514, Florida Statutes, is
13 amended to read:
14 732.514 Vesting of devises.--The death of the testator
15 is the event that vests the right to devises unless the
16 testator in the his or her will has provided that some other
17 event must happen before a devise vests shall vest.
18 Section 48. Section 732.515, Florida Statutes, is
19 amended to read:
20 732.515 Separate writing identifying devises of
21 tangible property.--A will may refer to a written statement or
22 list referred to in the decedent's will shall to dispose of
23 items of tangible personal property, other than property used
24 in trade or business, not otherwise specifically disposed of
25 by the will, other than money and property used in trade or
26 business. To be admissible under this section as evidence of
27 the intended disposition, the writing must be signed by the
28 testator and must describe the items and the devisees with
29 reasonable certainty. The writing may be referred to as one
30 in existence at the time of the testator's death. It may be
31 prepared before or after the execution of the will. It may be
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1 altered by the testator after its preparation. It may be a
2 writing that has no significance apart from its effect upon
3 the dispositions made by the will. If more than one otherwise
4 effective writing exists, then, to the extent of any conflict
5 among the writings, the provisions of the most recent writing
6 revoke the inconsistent provisions of each prior writing.
7 Section 49. Subsection (1) of section 732.6005,
8 Florida Statutes, is amended to read:
9 732.6005 Rules of construction and intention.--
10 (1) The intention of the testator as expressed in the
11 his or her will controls the legal effect of the testator's
12 dispositions. The rules of construction expressed in this
13 part shall apply unless a contrary intention is indicated by
14 the will.
15 Section 50. Section 732.601, Florida Statutes, is
16 amended to read:
17 732.601 Simultaneous Death Law.--Unless a contrary
18 intention appears in the governing instrument:
19 (1) When title to property or its devolution depends
20 on priority of death and there is insufficient evidence that
21 the persons have died otherwise than simultaneously, the
22 property of each person shall be disposed of as if that person
23 he or she had survived, except as provided otherwise in this
24 law.
25 (2) When two or more beneficiaries are designated to
26 take successively by reason of survivorship under another
27 person's disposition of property and there is insufficient
28 evidence that the beneficiaries died otherwise than
29 simultaneously, the property thus disposed of shall be divided
30 into as many equal parts as there are successive beneficiaries
31 and the parts shall be distributed to those who would have
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1 taken if each designated beneficiary had survived.
2 (3) When there is insufficient evidence that two joint
3 tenants or tenants by the entirety died otherwise than
4 simultaneously, the property so held shall be distributed
5 one-half as if one had survived and one-half as if the other
6 had survived. If there are more than two joint tenants and all
7 of them so died, the property thus distributed shall be in the
8 proportion that one bears to the whole number of joint
9 tenants.
10 (4) When the insured and the beneficiary in a policy
11 of life or accident insurance have died and there is
12 insufficient evidence that they died otherwise than
13 simultaneously, the proceeds of the policy shall be
14 distributed as if the insured had survived the beneficiary.
15 (5) This law shall not apply in the case of wills,
16 living trusts, deeds, or contracts of insurance in which
17 provision has been made for distribution of property different
18 from the provisions of this law.
19 Section 51. Section 732.603, Florida Statutes, is
20 amended to read:
21 732.603 Antilapse; deceased devisee; class
22 gifts.--Unless a contrary intention appears in the will:
23 (1) If a devisee or a beneficiary of a trust created
24 by a will who is a grandparent, or a lineal descendant of a
25 grandparent, of the testator:
26 (a) Is dead at the time of the execution of the will
27 or at the termination of a trust interest created by a will,
28 (b) Fails to survive the testator, or
29 (c) Is required by the will to be treated as having if
30 he or she predeceased the testator,
31
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1 then the descendants of the devisee or beneficiary take per
2 stirpes in place of the deceased devisee or beneficiary. A
3 person who would have been a devisee under a class gift if
4 that person he or she had survived the testator shall be a
5 devisee for purposes of this section whether that person died
6 his or her death occurred before or after the execution of the
7 will.
8 (2) If a devisee or a beneficiary of a trust created
9 by a will who is not a grandparent, or a descendant of a
10 grandparent, of the testator:
11 (a) Is dead at the time of the execution of the will
12 or at the termination of a trust interest created in a will,
13 (b) Fails to survive the testator, or
14 (c) Is required by the will to be treated as having if
15 he or she predeceased the testator,
16
17 then the testamentary disposition to the devisee or
18 beneficiary shall lapse unless an intention to substitute
19 another in his or her place appears in the will.
20 Section 52. Subsection (2) of section 732.604, Florida
21 Statutes, is amended to read:
22 732.604 Failure of testamentary provision.--
23 (2) Except as provided in s. 732.603, if the residue
24 is devised to two or more persons and the devise to share of
25 one of the residuary devisees fails for any reason, that
26 devise his or her share passes to the other residuary devisee,
27 or to the other residuary devisees in proportion to their
28 interests in the residue.
29 Section 53. Section 732.605, Florida Statutes, is
30 amended to read:
31 732.605 Change in securities; accessions;
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1 nonademption.--
2 (1) If the testator intended a specific devise of
3 certain securities rather than their equivalent value, the
4 specific devisee is entitled only to:
5 (a) As much of the devised securities as is a part of
6 the estate at the time of the testator's death.
7 (b) Any additional or other securities of the same
8 entity owned by the testator because of action initiated by
9 the entity, excluding any acquired by exercise of purchase
10 options.
11 (c) Securities of another entity owned by the testator
12 as a result of a merger, consolidation, reorganization, or
13 other similar action initiated by the entity.
14 (d) Securities of the same entity acquired as a result
15 of a plan of reinvestment.
16 (2) Distributions before death with respect to of a
17 specifically devised security, whether in cash or otherwise,
18 which are not provided for in subsection (1) are not part of
19 the specific devise.
20 Section 54. Subsection (1) and paragraph (d) of
21 subsection (2) of section 732.606, Florida Statutes, are
22 amended to read:
23 732.606 Nonademption of specific devises in certain
24 cases; sale by guardian of the property; unpaid proceeds of
25 sale, condemnation, or insurance.--
26 (1) If specifically devised property is sold by a
27 guardian of the property for the care and maintenance of the
28 ward or if a condemnation award or insurance proceeds are paid
29 to a guardian of the property as a result of condemnation,
30 fire, or casualty, the specific devisee has the right to a
31 general pecuniary devise equal to the net sale price, the
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1 condemnation award, or the insurance proceeds. This
2 subsection does not apply if, subsequent to the sale,
3 condemnation, or casualty, it is adjudicated that the
4 disability of the testator has ceased and the testator
5 survives the adjudication by 1 year. The right of the specific
6 devisee under this subsection is reduced by any right
7 described in he or she has under subsection (2).
8 (2) A specific devisee has the right to the remaining
9 specifically devised property and:
10 (d) Property owned by the testator at his or her death
11 as a result of foreclosure, or obtained instead of
12 foreclosure, of the security for the specifically devised
13 obligation.
14 Section 55. Subsection (1) of section 732.701, Florida
15 Statutes, is amended to read:
16 732.701 Agreements concerning succession.--
17 (1) No agreement to make a will, to give a devise, not
18 to revoke a will, not to revoke a devise, not to make a will,
19 or not to make a devise shall be binding or enforceable unless
20 the agreement is in writing and signed by the agreeing party
21 in the presence of two attesting witnesses. Such an agreement
22 executed by a nonresident of Florida, either before or after
23 this law takes effect, is valid in this state if valid when
24 executed under the laws of the state or country where the
25 agreement was executed, whether or not the agreeing party is a
26 Florida resident at the time of death.
27 Section 56. Section 732.702, Florida Statutes, is
28 amended to read:
29 732.702 Waiver of spousal right to elect and of other
30 rights.--
31 (1) The rights right of election of a surviving
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1 spouse, the rights of the surviving spouse as intestate
2 successor or as a pretermitted spouse, and the rights of the
3 surviving spouse to an elective share, intestate share,
4 pretermitted share, homestead, exempt property, and family
5 allowance, and preference in appointment as personal
6 representative of an intestate estate or any of those rights
7 them, may be waived, wholly or partly, before or after
8 marriage, by a written contract, agreement, or waiver, signed
9 by the waiving party in the presence of two subscribing
10 witnesses. The requirement of witnesses shall be applicable
11 only to contracts, agreements, or waivers signed by Florida
12 residents after the effective date of this law. Any contract,
13 agreement, or waiver executed by a nonresident of Florida,
14 either before or after this law takes effect, is valid in this
15 state if valid when executed under the laws of the state or
16 country where it was executed, whether or not he or she is a
17 Florida resident at the time of death. Unless the waiver it
18 provides to the contrary, a waiver of "all rights," or
19 equivalent language, in the property or estate of a present or
20 prospective spouse, or a complete property settlement entered
21 into after, or in anticipation of, separation, dissolution of
22 marriage, or divorce, is a waiver of all rights to elective
23 share, intestate share, pretermitted share, homestead
24 property, exempt property, and family allowance, and
25 preference in appointment as personal representative of an
26 intestate estate, by the waiving party each spouse in the
27 property of the other and a renunciation by the waiving party
28 each of all benefits that would otherwise pass to the waiving
29 party either from the other by intestate succession or by the
30 provisions of any will executed before the written contract,
31 agreement, or waiver or property settlement.
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Amendment No. ___ Barcode 192000
1 (2) Each spouse shall make a fair disclosure to the
2 other of that spouse's his or her estate if the agreement,
3 contract, or waiver is executed after marriage. No disclosure
4 shall be required for an agreement, contract, or waiver
5 executed before marriage.
6 (3) No consideration other than the execution of the
7 agreement, contract, or waiver shall be necessary to its
8 validity, whether executed before or after marriage.
9 Section 57. Subsections (2), (3), (4), (5), (6), and
10 (7) of section 732.801, Florida Statutes, are amended to read:
11 732.801 Disclaimer of interests in property passing by
12 will or intestate succession or under certain powers of
13 appointment.--
14 (2) SCOPE OF RIGHT TO DISCLAIM.--
15 (a) A beneficiary may disclaim his or her succession
16 to any interest in property that, unless disclaimed, would
17 pass to the beneficiary:
18 1. By intestate succession or devise.
19 2. Under descent of homestead, exempt property, or
20 family allowance or under s. 222.13.
21 3. Through exercise or nonexercise of a power of
22 appointment exercisable by will.
23 4. Through testamentary exercise or nonexercise of a
24 power of appointment exercisable by either deed or will.
25 5. As beneficiary of a testamentary trust.
26 6. As a beneficiary of a testamentary gift to any
27 nontestamentary trust.
28 7. As donee of a power of appointment created by will.
29 8. By succession in any manner described in this
30 subsection to a disclaimed interest.
31 9. In any manner not specifically enumerated herein
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Amendment No. ___ Barcode 192000
1 under a testamentary instrument.
2 (b) Disclaimer may be made for a minor, incompetent,
3 incapacitated person, or deceased beneficiary by the guardian
4 or personal representative if the court having jurisdiction of
5 the estate of the minor, incompetent, incapacitated person, or
6 deceased beneficiary upon petition finds that the disclaimer:
7 1. Is in the best interests of those interested in the
8 estate of the beneficiary and of those who take the
9 beneficiary's interest by virtue of the disclaimer and
10 2. Is not detrimental to the best interests of the
11 beneficiary.
12
13 The determination shall be made on a petition filed for that
14 purpose and served on all interested persons. If ordered by
15 the court, the guardian or personal representative shall
16 execute and record the disclaimer on behalf of the beneficiary
17 within the time and in the manner in which the beneficiary
18 could disclaim if he or she were living, of legal age, and
19 competent.
20 (3) DISPOSITION OF DISCLAIMED INTERESTS.--
21 (a) Unless the decedent or a donee of a power of
22 appointment has otherwise provided by will or other
23 appropriate instrument with reference to the possibility of a
24 disclaimer by the beneficiary, the interest disclaimed shall
25 descend, be distributed, or otherwise be disposed of in the
26 same manner as if the disclaimant had died immediately
27 preceding the death or other event that caused him or her to
28 become finally ascertained as a beneficiary and the
29 disclaimant's interest to become indefeasibly fixed both in
30 quality and quantity. The disclaimer shall relate to that
31 date for all purposes, whether recorded before or after the
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Amendment No. ___ Barcode 192000
1 death or other event. An interest in property disclaimed
2 shall never vest in the disclaimant. If the provisions of s.
3 732.603 would have been applicable had the disclaimant in fact
4 died immediately preceding the death or other event, they
5 shall be applicable to the disclaimed interest.
6 (b) Unless the his or her disclaimer instrument so
7 provides, a beneficiary who disclaims any interest that would
8 pass to him or her in any manner described in subsection (2)
9 shall not be excluded from sharing in any other interest to
10 which he or she may be entitled in any manner described in the
11 subsection, including subparagraph (2)(a)8., even though the
12 interest includes disclaimed assets by virtue of the
13 beneficiary's disclaimer.
14 (4) FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER
15 INSTRUMENTS.--
16 (a) To be A disclaimer shall be in, a writing and
17 shall declare the disclaimer and its extent, describe the
18 interest in property disclaimed, and be executed signed,
19 witnessed, and acknowledged in the manner provided for the
20 conveyance of real property.
21 (b) A disclaimer shall be effective and irrevocable
22 when the instrument is recorded by the clerk where the estate
23 of the decedent is or has been administered. If no
24 administration has been commenced, it may be recorded
25 recording may be made with the clerk of any county where venue
26 of administration is proper.
27 (c) The person disclaiming shall deliver or mail a
28 copy of the disclaimer instrument to the personal
29 representative, trustee, or other person having legal title
30 to, or possession of, the property in which the disclaimed
31 interest exists. No representative, trustee, or other person
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Amendment No. ___ Barcode 192000
1 shall be liable for any otherwise proper distribution or other
2 disposition made without actual notice of the disclaimer or,
3 if the disclaimer is waived or barred as hereinafter provided,
4 for any otherwise proper distribution or other disposition
5 made in reliance on the disclaimer, if the distribution or
6 disposition is made without actual notice of the facts
7 constituting the waiver or bar of barring the right to
8 disclaim.
9 (5) TIME FOR RECORDING DISCLAIMER.--To be effective a
10 disclaimer shall be recorded at any time after the creation of
11 the interest, but in any event within 9 months after the event
12 giving rise to the right to disclaim, including the death of
13 the decedent; or, if the disclaimant is not finally
14 ascertained as a beneficiary or the disclaimant's interest has
15 not become indefeasibly fixed both in quality and quantity at
16 the death of the decedent, then the disclaimer shall be
17 recorded not later than 6 months after the event that would
18 cause the him or her to become finally ascertained and his or
19 her interest to become indefeasibly fixed both in quality and
20 quantity. However, a disclaimer may be effective if recorded
21 at any time after the creation of the interest, upon the
22 written consent of all interested parties as provided in s.
23 731.302.
24 (6) WAIVER OR BAR TO RIGHT TO DISCLAIM.--
25 (a) The right to disclaim otherwise conferred by this
26 section shall be barred if the disclaimant beneficiary is
27 insolvent at the time of recording the disclaimer the event
28 giving rise to the right to disclaim and also by:
29 1. Making a voluntary assignment or transfer of, a
30 contract to assign or transfer, or an encumbrance of, an
31 interest in real or personal property.
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Amendment No. ___ Barcode 192000
1 2. Giving a written waiver of the right to disclaim
2 the succession to an interest in real or personal property.
3 3. Making any sale or other disposition of an interest
4 in real or personal property pursuant to judicial process by
5 the beneficiary before recording he or she has recorded a
6 disclaimer.
7 (b) The acceptance, assignment, transfer, encumbrance,
8 or written waiver of the right to disclaim a part of an
9 interest in property, or the sale pursuant to judicial process
10 of a part of an interest in property, shall not bar the right
11 to disclaim any other part of the interest in property.
12 (7) EFFECT OF RESTRAINTS.--The right to disclaim
13 granted by this section is shall exist irrespective of any
14 limitation imposed on the interest of the disclaimant in the
15 nature of an express or implied spendthrift provision or
16 similar restriction.
17 Section 58. Section 732.804, Florida Statutes, is
18 amended to read:
19 732.804 Provisions relating to disposition of the body
20 cremation.--Before issuance of letters, any person may carry
21 out written instructions of the decedent relating to the
22 decedent's body and funeral and burial arrangements. The fact
23 that cremation occurred pursuant to a written direction
24 provision of a will or any written contract signed by the
25 decedent that the in which he or she expressed the intent that
26 his or her body be cremated is a complete defense to a cause
27 of action against any person acting or relying on that
28 direction the personal representative or person providing the
29 services.
30 Section 59. Section 732.901, Florida Statutes, is
31 amended to read:
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Amendment No. ___ Barcode 192000
1 732.901 Production of wills.--
2 (1) The custodian of a will must deposit the will with
3 the clerk of the court having venue of the estate of the
4 decedent within 10 days after receiving information that the
5 testator is dead. The custodian must supply the testator's
6 date of death or social security number to the clerk upon
7 deposit. Willful failure to deposit the will with the clerk
8 within the time period specified shall render the custodian
9 responsible for all costs and damages sustained by anyone if
10 the court finds that the custodian had no just or reasonable
11 cause for withholding the deposit of the will.
12 (2) Upon By petition and notice of it served on him or
13 her, the custodian of any will may be compelled to produce and
14 deposit the will as provided in subsection (1). All costs,
15 damages, and a reasonable attorney's fee shall be adjudged to
16 petitioner against the delinquent custodian if the court finds
17 that the custodian had no just or reasonable cause for failing
18 to withholding the deposit of the will.
19 Section 60. Section 732.910, Florida Statutes, is
20 renumbered as section 765.510, Florida Statutes.
21 Section 61. Section 732.911, Florida Statutes, is
22 renumbered as section 765.511, Florida Statutes.
23 Section 62. Section 732.912, Florida Statutes, is
24 renumbered as section 765.512, Florida Statutes, and amended
25 to read:
26 765.512 732.912 Persons who may make an anatomical
27 gift.--
28 (1) Any person who may make a will may give all or
29 part of his or her body for any purpose specified in s.
30 765.510 732.910, the gift to take effect upon death. An
31 anatomical gift made by an adult donor and not revoked by the
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Amendment No. ___ Barcode 192000
1 donor as provided in s. 765.516 732.916 is irrevocable and
2 does not require the consent or concurrence of any person
3 after the donor's death.
4 (2) If the decedent has executed an agreement
5 concerning an anatomical gift, including signing an organ and
6 tissue donor card, expressing his or her wish to donate in a
7 living will or advance directive, or signifying his or her
8 intent to donate on his or her driver's license or in some
9 other written form has indicated his or her wish to make an
10 anatomical gift, and in the absence of actual notice of
11 contrary indications by the decedent, the surrogate designated
12 by the decedent pursuant to part II of chapter 765 may give
13 all or any part of the decedent's body for any purpose
14 specified in s. 765.510 732.910.
15 (3) If the decedent has not executed an agreement
16 concerning an anatomical gift or designated a surrogate
17 pursuant to part II of chapter 765 to make an anatomical gift
18 pursuant to the conditions of subsection (2), a member of one
19 of the classes of persons listed below, in the order of
20 priority stated and in the absence of actual notice of
21 contrary indications by the decedent or actual notice of
22 opposition by a member of the same or a prior class, may give
23 all or any part of the decedent's body for any purpose
24 specified in s. 765.510 732.910:
25 (a) The spouse of the decedent;
26 (b) An adult son or daughter of the decedent;
27 (c) Either parent of the decedent;
28 (d) An adult brother or sister of the decedent;
29 (e) A grandparent of the decedent;
30 (f) A guardian of the person of the decedent at the
31 time of his or her death; or
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Amendment No. ___ Barcode 192000
1 (g) A representative ad litem who shall be appointed
2 by a court of competent jurisdiction forthwith upon a petition
3 heard ex parte filed by any person, which representative ad
4 litem shall ascertain that no person of higher priority exists
5 who objects to the gift of all or any part of the decedent's
6 body and that no evidence exists of the decedent's having made
7 a communication expressing a desire that his or her body or
8 body parts not be donated upon death;
9
10 but no gift shall be made by the spouse if any adult son or
11 daughter objects, and provided that those of higher priority,
12 if they are reasonably available, have been contacted and made
13 aware of the proposed gift, and further provided that a
14 reasonable search is made to show that there would have been
15 no objection on religious grounds by the decedent.
16 (4) If the donee has actual notice of contrary
17 indications by the decedent or, in the case of a spouse making
18 the gift, an objection of an adult son or daughter or actual
19 notice that a gift by a member of a class is opposed by a
20 member of the same or a prior class, the donee shall not
21 accept the gift.
22 (5) The person authorized by subsection (3) may make
23 the gift after the decedent's death or immediately before the
24 decedent's death.
25 (6) A gift of all or part of a body authorizes any
26 examination necessary to assure medical acceptability of the
27 gift for the purposes intended.
28 (7) Once the gift has been made, the rights of the
29 donee are paramount to the rights of others, except as
30 provided by s. 765.517 732.917.
31 Section 63. Section 732.913, Florida Statutes, is
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Amendment No. ___ Barcode 192000
1 renumbered as section 765.513, Florida Statutes.
2 Section 64. Section 732.914, Florida Statutes, is
3 renumbered as section 765.514, Florida Statutes, and amended
4 to read:
5 765.514 732.914 Manner of executing anatomical
6 gifts.--
7 (1) A gift of all or part of the body under s.
8 765.512(1) 732.912(1) may be made by will. The gift becomes
9 effective upon the death of the testator without waiting for
10 probate. If the will is not probated or if it is declared
11 invalid for testamentary purposes, the gift is nevertheless
12 valid to the extent that it has been acted upon in good faith.
13 (2)(a) A gift of all or part of the body under s.
14 765.512(1) 732.912(1) may also be made by a document other
15 than a will. The gift becomes effective upon the death of the
16 donor. The document must be signed by the donor in the
17 presence of two witnesses who shall sign the document in the
18 donor's presence. If the donor cannot sign, the document may
19 be signed for him or her at the donor's direction and in his
20 or her presence and the presence of two witnesses who must
21 sign the document in the donor's presence. Delivery of the
22 document of gift during the donor's lifetime is not necessary
23 to make the gift valid.
24 (b) The following form of written instrument shall be
25 sufficient for any person to give all or part of his or her
26 body for the purposes of this part:
27
28 UNIFORM DONOR CARD
29
30 The undersigned hereby makes this anatomical gift, if
31 medically acceptable, to take effect on death. The words and
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Amendment No. ___ Barcode 192000
1 marks below indicate my desires:
2 I give:
3 (a) .... any needed organs or parts;
4 (b) .... only the following organs or parts
5 ...[Specify the organ(s) or part(s)]...
6 for the purpose of transplantation, therapy, medical research,
7 or education;
8 (c) .... my body for anatomical study if needed.
9 Limitations or special wishes, if any:
10 ...(If applicable, list specific donee)...
11
12 Signed by the donor and the following witnesses in the
13 presence of each other:
14
15 ...(Signature of donor)... ...(Date of birth of donor)...
16 ...(Date signed)... ...(City and State)...
17
18 ...(Witness)... ...(Witness)...
19 ...(Address)... ...(Address)...
20
21 (3) The gift may be made to a donee specified by name.
22 If the donee is not specified by name, the gift may be
23 accepted by the attending physician as donee upon or following
24 the donor's death. If the gift is made to a specified donee
25 who is not available at the time and place of death, the
26 attending physician may accept the gift as donee upon or
27 following death in the absence of any expressed indication
28 that the donor desired otherwise. However, the Legislature
29 declares that the public policy of this state prohibits
30 restrictions on the possible recipients of an anatomical gift
31 on the basis of race, color, religion, sex, national origin,
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Amendment No. ___ Barcode 192000
1 age, physical handicap, health status, marital status, or
2 economic status, and such restrictions are hereby declared
3 void and unenforceable. The physician who becomes a donee
4 under this subsection shall not participate in the procedures
5 for removing or transplanting a part.
6 (4) Notwithstanding s. 765.517(2) 732.917(2), the
7 donor may designate in his or her will or other document of
8 gift the surgeon or physician to carry out the appropriate
9 procedures. In the absence of a designation or if the
10 designee is not available, the donee or other person
11 authorized to accept the gift may employ or authorize any
12 surgeon or physician for the purpose.
13 (5) Any gift by a member of a class designated in s.
14 765.512(3) 732.912(3) must be made by a document signed by
15 that person or made by that person's witnessed telephonic
16 discussion, telegraphic message, or other recorded message.
17 Section 65. Section 732.915, Florida Statutes, is
18 renumbered as section 765.515, Florida Statutes, and amended
19 to read:
20 765.515 732.915 Delivery of document; organ and tissue
21 donor registry.--
22 (1) If a gift is made through the program established
23 by the Agency for Health Care Administration and the
24 Department of Highway Safety and Motor Vehicles under the
25 authority of s. 765.521 732.921, the completed donor
26 registration card shall be delivered to the Department of
27 Highway Safety and Motor Vehicles and processed in a manner
28 specified in subsection (4), but delivery is not necessary to
29 the validity of the gift. If the donor withdraws the gift, the
30 records of the Department of Highway Safety and Motor Vehicles
31 shall be updated to reflect such withdrawal.
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Amendment No. ___ Barcode 192000
1 (2) If a gift is not made through the program
2 established by the Agency for Health Care Administration and
3 the Department of Highway Safety and Motor Vehicles under the
4 authority of s. 765.521 732.921 and is made by the donor to a
5 specified donee, the document, other than a will, may be
6 delivered to the donee to expedite the appropriate procedures
7 immediately after death, but delivery is not necessary to the
8 validity of the gift. Such document may be deposited in any
9 hospital, bank, storage facility, or registry office that
10 accepts such documents for safekeeping or for facilitation of
11 procedures after death.
12 (3) On the request of any interested party upon or
13 after the donor's death, the person in possession shall
14 produce the document for examination.
15 (4) The Agency for Health Care Administration and the
16 Department of Highway Safety and Motor Vehicles shall develop
17 and implement an organ and tissue donor registry which shall
18 record, through electronic means, organ and tissue donation
19 documents submitted through the driver license identification
20 program or by other sources. The registry shall be maintained
21 in a manner which will allow, through electronic and
22 telephonic methods, immediate access to organ and tissue
23 donation documents 24 hours a day, 7 days a week. Hospitals,
24 organ and tissue procurement agencies, and other parties
25 identified by the agency by rule shall be allowed access
26 through coded means to the information stored in the registry.
27 Costs for the organ and tissue donor registry shall be paid
28 from the Florida Organ and Tissue Donor Education and
29 Procurement Trust Fund created by s. 765.52155 732.92155.
30 Funds deposited into the Florida Organ and Tissue Donor
31 Education and Procurement Trust Fund shall be utilized by the
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Amendment No. ___ Barcode 192000
1 Agency for Health Care Administration for maintaining the
2 organ and tissue donor registry and for organ and tissue donor
3 education.
4 Section 66. Section 732.916, Florida Statutes, is
5 renumbered as section 765.516, Florida Statutes.
6 Section 67. Section 732.917, Florida Statutes, is
7 renumbered as section 765.517, Florida Statutes, and amended
8 to read:
9 765.517 732.917 Rights and duties at death.--
10 (1) The donee, as specified under the provisions of s.
11 765.515(2) 732.915(2), may accept or reject the gift. If the
12 donee accepts a gift of the entire body or a part of the body
13 to be used for scientific purposes other than a transplant,
14 the donee may authorize embalming and the use of the body in
15 funeral services, subject to the terms of the gift. If the
16 gift is of a part of the body, the donee shall cause the part
17 to be removed without unnecessary mutilation upon the death of
18 the donor and before or after embalming. After removal of the
19 part, custody of the remainder of the body vests in the
20 surviving spouse, next of kin, or other persons under
21 obligation to dispose of the body.
22 (2) The time of death shall be determined by a
23 physician who attends the donor at the donor's death or, if
24 there is no such physician, the physician who certifies the
25 death. After death and in the absence of other qualified
26 personnel, this physician may participate in, but shall not
27 obstruct, the procedures to preserve the donor's organs or
28 tissues and shall not be paid or reimbursed by, nor be
29 associated with or employed by, an organ procurement
30 organization, tissue bank, or eye bank. This physician shall
31 not participate in the procedures for removing or
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Amendment No. ___ Barcode 192000
1 transplanting a part.
2 (3) The organ procurement organization, tissue bank,
3 or eye bank, or hospital medical professionals under the
4 direction thereof, may perform any and all tests to evaluate
5 the deceased as a potential donor and any invasive procedures
6 on the deceased body in order to preserve the potential
7 donor's organs. These procedures do not include the surgical
8 removal of an organ or penetrating any body cavity,
9 specifically for the purpose of donation, until a properly
10 executed donor card or document is located or, if a properly
11 executed donor card or document cannot be located, a person
12 specified in s. 765.512(3) 732.912(3) has been located, has
13 been notified of the death, and has granted legal permission
14 for the donation.
15 (4) All reasonable additional expenses incurred in the
16 procedures to preserve the donor's organs or tissues shall be
17 reimbursed by the organ procurement organization, tissue bank,
18 or eye bank.
19 (5) A person who acts in good faith and without
20 negligence in accord with the terms of this part or under the
21 anatomical gift laws of another state or a foreign country is
22 not liable for damages in any civil action or subject to
23 prosecution for his or her acts in any criminal proceeding.
24 (6) The provisions of this part are subject to the
25 laws of this state prescribing powers and duties with respect
26 to autopsies.
27 Section 68. Section 732.918, Florida Statutes, is
28 renumbered as section 765.518, Florida Statutes.
29 Section 69. Section 732.9185, Florida Statutes, is
30 renumbered as section 765.5185, Florida Statutes.
31 Section 70. Section 732.919, Florida Statutes, is
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Amendment No. ___ Barcode 192000
1 renumbered as section 765.519, Florida Statutes.
2 Section 71. Section 732.921, Florida Statutes, is
3 renumbered as section 765.521, Florida Statutes, and amended
4 to read:
5 765.521 732.921 Donations as part of driver license or
6 identification card process.--
7 (1) The Agency for Health Care Administration and the
8 Department of Highway Safety and Motor Vehicles shall develop
9 and implement a program encouraging and allowing persons to
10 make anatomical gifts as a part of the process of issuing
11 identification cards and issuing and renewing driver licenses.
12 The donor registration card distributed by the Department of
13 Highway Safety and Motor Vehicles shall include the material
14 specified by s. 765.514(2)(b) 732.914(2)(b) and may require
15 such additional information, and include such additional
16 material, as may be deemed necessary by that department. The
17 Department of Highway Safety and Motor Vehicles shall also
18 develop and implement a program to identify donors, which
19 program shall include notations on identification cards,
20 driver licenses, and driver records or such other methods as
21 the department may develop. This program shall include, after
22 an individual has completed a donor registration card, making
23 a notation on the front of the driver license or
24 identification card that clearly indicates the individual's
25 intent to donate the individual's organs or tissue. A notation
26 on an individual's driver license or identification card that
27 the individual intends to donate organs or tissues is deemed
28 sufficient to satisfy all requirements for consent to organ or
29 tissue donation. The Agency for Health Care Administration
30 shall provide the necessary supplies and forms through funds
31 appropriated from general revenue or contributions from
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Amendment No. ___ Barcode 192000
1 interested voluntary, nonprofit organizations. The Department
2 of Highway Safety and Motor Vehicles shall provide the
3 necessary recordkeeping system through funds appropriated from
4 general revenue. The Department of Highway Safety and Motor
5 Vehicles and the Agency for Health Care Administration shall
6 incur no liability in connection with the performance of any
7 acts authorized herein.
8 (2) The Department of Highway Safety and Motor
9 Vehicles, after consultation with and concurrence by the
10 Agency for Health Care Administration, shall adopt rules to
11 implement the provisions of this section according to the
12 provisions of chapter 120.
13 (3) Funds expended by the Agency for Health Care
14 Administration to carry out the intent of this section shall
15 not be taken from any funds appropriated for patient care.
16 Section 72. Section 732.9215, Florida Statutes, is
17 renumbered as section 765.5215, Florida Statutes.
18 Section 73. Section 732.92155, Florida Statutes, is
19 renumbered as section 765.52155, Florida Statutes.
20 Section 74. Section 732.9216, Florida Statutes, is
21 renumbered as section 765.5216, Florida Statutes.
22 Section 75. Section 732.922, Florida Statutes, is
23 renumbered as section 765.522, Florida Statutes, and amended
24 to read:
25 765.522 732.922 Duty of certain hospital
26 administrators; liability of hospital administrators, organ
27 procurement organizations, eye banks, and tissue banks.--
28 (1) When used in this section, "hospital" means any
29 establishment licensed under chapter 395 except psychiatric
30 and rehabilitation hospitals.
31 (2) Where, based on accepted medical standards, a
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Amendment No. ___ Barcode 192000
1 hospital patient is a suitable candidate for organ or tissue
2 donation, the hospital administrator or the hospital
3 administrator's designee shall, at or near the time of death,
4 access the organ and tissue donor registry created by s.
5 765.515(4) 732.915(4) to ascertain the existence of a donor
6 card or document executed by the decedent. In the absence of a
7 donor card, organ donation sticker or organ donation imprint
8 on a driver's license, or other properly executed document,
9 the hospital administrator or designee shall request:
10 (a) The patient's health care surrogate, as permitted
11 in s. 765.512(2) 732.912(2); or
12 (b) If the patient does not have a surrogate, or the
13 surrogate is not reasonably available, any of the persons
14 specified in s. 765.512(3) 732.912(3), in the order and manner
15 of priority stated in s. 765.512(3) 732.912(3),
16
17 to consent to the gift of all or any part of the decedent's
18 body for any purpose specified in this part. Except as
19 provided in s. 765.512 732.912, in the absence of actual
20 notice of opposition, consent need only be obtained from the
21 person or persons in the highest priority class reasonably
22 available.
23 (3) A gift made pursuant to a request required by this
24 section shall be executed pursuant to s. 765.514 732.914.
25 (4) The Agency for Health Care Administration shall
26 establish rules and guidelines concerning the education of
27 individuals who may be designated to perform the request and
28 the procedures to be used in making the request. The agency
29 is authorized to adopt rules concerning the documentation of
30 the request, where such request is made.
31 (5) There shall be no civil or criminal liability
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1 against any organ procurement organization, eye bank, or
2 tissue bank certified under s. 381.6022, or against any
3 hospital or hospital administrator or designee, when complying
4 with the provisions of this part and the rules of the Agency
5 for Health Care Administration or when, in the exercise of
6 reasonable care, a request for organ donation is inappropriate
7 and the gift is not made according to this part and the rules
8 of the Agency for Health Care Administration.
9 (6) The hospital administrator or a designee shall, at
10 or near the time of death of a potential organ donor, directly
11 notify the affiliated Health Care Financing Administration
12 designated organ procurement organization of the potential
13 organ donor. This organ procurement organization must offer
14 any organ from such a donor first to patients on a
15 Florida-based local or state organ sharing transplant list.
16 For the purpose of this subsection, the term "transplant list"
17 includes certain categories of national or regional organ
18 sharing for patients of exceptional need or exceptional match,
19 as approved or mandated by the United Network for Organ
20 Sharing. This notification must not be made to a tissue bank
21 or eye bank in lieu of the organ procurement organization
22 unless the tissue bank or eye bank is also a Health Care
23 Financing Administration designated organ procurement
24 organization.
25 Section 76. Paragraph (h) of subsection (3) of section
26 381.004, Florida Statutes, is amended to read:
27 381.004 HIV testing.--
28 (3) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED
29 CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.--
30 (h) Notwithstanding the provisions of paragraph (a),
31 informed consent is not required:
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1 1. When testing for sexually transmissible diseases is
2 required by state or federal law, or by rule including the
3 following situations:
4 a. HIV testing pursuant to s. 796.08 of persons
5 convicted of prostitution or of procuring another to commit
6 prostitution.
7 b. Testing for HIV by a medical examiner in accordance
8 with s. 406.11.
9 2. Those exceptions provided for blood, plasma,
10 organs, skin, semen, or other human tissue pursuant to s.
11 381.0041.
12 3. For the performance of an HIV-related test by
13 licensed medical personnel in bona fide medical emergencies
14 when the test results are necessary for medical diagnostic
15 purposes to provide appropriate emergency care or treatment to
16 the person being tested and the patient is unable to consent,
17 as supported by documentation in the medical record.
18 Notification of test results in accordance with paragraph (c)
19 is required.
20 4. For the performance of an HIV-related test by
21 licensed medical personnel for medical diagnosis of acute
22 illness where, in the opinion of the attending physician,
23 obtaining informed consent would be detrimental to the
24 patient, as supported by documentation in the medical record,
25 and the test results are necessary for medical diagnostic
26 purposes to provide appropriate care or treatment to the
27 person being tested. Notification of test results in
28 accordance with paragraph (c) is required if it would not be
29 detrimental to the patient. This subparagraph does not
30 authorize the routine testing of patients for HIV infection
31 without informed consent.
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1 5. When HIV testing is performed as part of an autopsy
2 for which consent was obtained pursuant to s. 872.04.
3 6. For the performance of an HIV test upon a defendant
4 pursuant to the victim's request in a prosecution for any type
5 of sexual battery where a blood sample is taken from the
6 defendant voluntarily, pursuant to court order for any
7 purpose, or pursuant to the provisions of s. 775.0877, s.
8 951.27, or s. 960.003; however, the results of any HIV test
9 performed shall be disclosed solely to the victim and the
10 defendant, except as provided in ss. 775.0877, 951.27, and
11 960.003.
12 7. When an HIV test is mandated by court order.
13 8. For epidemiological research pursuant to s.
14 381.0032, for research consistent with institutional review
15 boards created by 45 C.F.R. part 46, or for the performance of
16 an HIV-related test for the purpose of research, if the
17 testing is performed in a manner by which the identity of the
18 test subject is not known and may not be retrieved by the
19 researcher.
20 9. When human tissue is collected lawfully without the
21 consent of the donor for corneal removal as authorized by s.
22 765.5185 732.9185 or enucleation of the eyes as authorized by
23 s. 765.519 732.919.
24 10. For the performance of an HIV test upon an
25 individual who comes into contact with medical personnel in
26 such a way that a significant exposure has occurred during the
27 course of employment or within the scope of practice and where
28 a blood sample is available that was taken from that
29 individual voluntarily by medical personnel for other
30 purposes. The term "medical personnel" includes a licensed or
31 certified health care professional; an employee of a health
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1 care professional or health care facility; employees of a
2 laboratory licensed under chapter 483; personnel of a blood
3 bank or plasma center; a medical student or other student who
4 is receiving training as a health care professional at a
5 health care facility; and a paramedic or emergency medical
6 technician certified by the department to perform life-support
7 procedures under s. 401.23.
8 a. Prior to performance of an HIV test on a
9 voluntarily obtained blood sample, the individual from whom
10 the blood was obtained shall be requested to consent to the
11 performance of the test and to the release of the results.
12 The individual's refusal to consent and all information
13 concerning the performance of an HIV test and any HIV test
14 result shall be documented only in the medical personnel's
15 record unless the individual gives written consent to entering
16 this information on the individual's medical record.
17 b. Reasonable attempts to locate the individual and to
18 obtain consent shall be made and all attempts must be
19 documented. If the individual cannot be found, an HIV test may
20 be conducted on the available blood sample. If the individual
21 does not voluntarily consent to the performance of an HIV
22 test, the individual shall be informed that an HIV test will
23 be performed, and counseling shall be furnished as provided in
24 this section. However, HIV testing shall be conducted only
25 after a licensed physician documents, in the medical record of
26 the medical personnel, that there has been a significant
27 exposure and that, in the physician's medical judgment, the
28 information is medically necessary to determine the course of
29 treatment for the medical personnel.
30 c. Costs of any HIV test of a blood sample performed
31 with or without the consent of the individual, as provided in
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1 this subparagraph, shall be borne by the medical personnel or
2 the employer of the medical personnel. However, costs of
3 testing or treatment not directly related to the initial HIV
4 tests or costs of subsequent testing or treatment shall not be
5 borne by the medical personnel or the employer of the medical
6 personnel.
7 d. In order to utilize the provisions of this
8 subparagraph, the medical personnel must either be tested for
9 HIV pursuant to this section or provide the results of an HIV
10 test taken within 6 months prior to the significant exposure
11 if such test results are negative.
12 e. A person who receives the results of an HIV test
13 pursuant to this subparagraph shall maintain the
14 confidentiality of the information received and of the persons
15 tested. Such confidential information is exempt from s.
16 119.07(1).
17 f. If the source of the exposure will not voluntarily
18 submit to HIV testing and a blood sample is not available, the
19 medical personnel or the employer of such person acting on
20 behalf of the employee may seek a court order directing the
21 source of the exposure to submit to HIV testing. A sworn
22 statement by a physician licensed under chapter 458 or chapter
23 459 that a significant exposure has occurred and that, in the
24 physician's medical judgment, testing is medically necessary
25 to determine the course of treatment constitutes probable
26 cause for the issuance of an order by the court. The results
27 of the test shall be released to the source of the exposure
28 and to the person who experienced the exposure.
29 11. For the performance of an HIV test upon an
30 individual who comes into contact with medical personnel in
31 such a way that a significant exposure has occurred during the
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1 course of employment or within the scope of practice of the
2 medical personnel while the medical personnel provides
3 emergency medical treatment to the individual; or who comes
4 into contact with nonmedical personnel in such a way that a
5 significant exposure has occurred while the nonmedical
6 personnel provides emergency medical assistance during a
7 medical emergency. For the purposes of this subparagraph, a
8 medical emergency means an emergency medical condition outside
9 of a hospital or health care facility that provides physician
10 care. The test may be performed only during the course of
11 treatment for the medical emergency.
12 a. An individual who is capable of providing consent
13 shall be requested to consent to an HIV test prior to the
14 testing. The individual's refusal to consent, and all
15 information concerning the performance of an HIV test and its
16 result, shall be documented only in the medical personnel's
17 record unless the individual gives written consent to entering
18 this information on the individual's medical record.
19 b. HIV testing shall be conducted only after a
20 licensed physician documents, in the medical record of the
21 medical personnel or nonmedical personnel, that there has been
22 a significant exposure and that, in the physician's medical
23 judgment, the information is medically necessary to determine
24 the course of treatment for the medical personnel or
25 nonmedical personnel.
26 c. Costs of any HIV test performed with or without the
27 consent of the individual, as provided in this subparagraph,
28 shall be borne by the medical personnel or the employer of the
29 medical personnel or nonmedical personnel. However, costs of
30 testing or treatment not directly related to the initial HIV
31 tests or costs of subsequent testing or treatment shall not be
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1 borne by the medical personnel or the employer of the medical
2 personnel or nonmedical personnel.
3 d. In order to utilize the provisions of this
4 subparagraph, the medical personnel or nonmedical personnel
5 shall be tested for HIV pursuant to this section or shall
6 provide the results of an HIV test taken within 6 months prior
7 to the significant exposure if such test results are negative.
8 e. A person who receives the results of an HIV test
9 pursuant to this subparagraph shall maintain the
10 confidentiality of the information received and of the persons
11 tested. Such confidential information is exempt from s.
12 119.07(1).
13 f. If the source of the exposure will not voluntarily
14 submit to HIV testing and a blood sample was not obtained
15 during treatment for the medical emergency, the medical
16 personnel, the employer of the medical personnel acting on
17 behalf of the employee, or the nonmedical personnel may seek a
18 court order directing the source of the exposure to submit to
19 HIV testing. A sworn statement by a physician licensed under
20 chapter 458 or chapter 459 that a significant exposure has
21 occurred and that, in the physician's medical judgment,
22 testing is medically necessary to determine the course of
23 treatment constitutes probable cause for the issuance of an
24 order by the court. The results of the test shall be released
25 to the source of the exposure and to the person who
26 experienced the exposure.
27 12. For the performance of an HIV test by the medical
28 examiner or attending physician upon an individual who expired
29 or could not be resuscitated while receiving emergency medical
30 assistance or care and who was the source of a significant
31 exposure to medical or nonmedical personnel providing such
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1 assistance or care.
2 a. HIV testing may be conducted only after a licensed
3 physician documents in the medical record of the medical
4 personnel or nonmedical personnel that there has been a
5 significant exposure and that, in the physician's medical
6 judgment, the information is medically necessary to determine
7 the course of treatment for the medical personnel or
8 nonmedical personnel.
9 b. Costs of any HIV test performed under this
10 subparagraph may not be charged to the deceased or to the
11 family of the deceased person.
12 c. For the provisions of this subparagraph to be
13 applicable, the medical personnel or nonmedical personnel must
14 be tested for HIV under this section or must provide the
15 results of an HIV test taken within 6 months before the
16 significant exposure if such test results are negative.
17 d. A person who receives the results of an HIV test
18 pursuant to this subparagraph shall comply with paragraph (e).
19 13. For the performance of an HIV-related test
20 medically indicated by licensed medical personnel for medical
21 diagnosis of a hospitalized infant as necessary to provide
22 appropriate care and treatment of the infant when, after a
23 reasonable attempt, a parent cannot be contacted to provide
24 consent. The medical records of the infant shall reflect the
25 reason consent of the parent was not initially obtained. Test
26 results shall be provided to the parent when the parent is
27 located.
28 14. For the performance of HIV testing conducted to
29 monitor the clinical progress of a patient previously
30 diagnosed to be HIV positive.
31 15. For the performance of repeated HIV testing
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1 conducted to monitor possible conversion from a significant
2 exposure.
3 Section 77. Paragraph (c) of subsection (2) of section
4 381.0041, Florida Statutes, is amended to read:
5 381.0041 Donation and transfer of human tissue;
6 testing requirements.--
7 (2) Notwithstanding the provisions of subsection (1),
8 written, informed consent to perform testing shall not be
9 required:
10 (c) When an unrevoked anatomical gift has been made
11 pursuant to s. 765.514 732.914, by will or other written
12 instrument, and the donor is deceased or incompetent.
13 Section 78. Section 733.101, Florida Statutes, is
14 amended to read:
15 733.101 Venue of probate proceedings.--
16 (1) The venue for of probate of all wills and granting
17 of letters shall be:
18 (a) In the county in this state where the decedent was
19 domiciled had his or her domicile.
20 (b) If the decedent had no domicile in this state,
21 then in any county where the decedent's decedent was possessed
22 of any property is located.
23 (c) If the decedent had no domicile in this state and
24 possessed no property in this state, then in the county where
25 any debtor of the decedent resides.
26 (2) For the purpose of this section, a married woman
27 whose husband is an alien or a nonresident of Florida may
28 establish or designate a separate domicile in this state.
29 (3) Whenever a When any proceeding is filed laying
30 venue in an improper the wrong county, the court may transfer
31 the action in the same manner as provided in the Florida Rules
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1 of Civil Procedure. Any action taken by the court or the
2 parties before the transfer is not affected by because of the
3 improper venue.
4 Section 79. Subsection (2) of section 733.103, Florida
5 Statutes, is amended to read:
6 733.103 Effect of probate.--
7 (2) In any collateral action or proceeding relating to
8 devised property, the probate of a will in Florida shall be
9 conclusive of its due execution; that it was executed by a
10 competent testator, free of fraud, duress, mistake, and undue
11 influence; and of the fact that the will was unrevoked on the
12 testator's death.
13 Section 80. Section 733.104, Florida Statutes, is
14 amended to read:
15 733.104 Suspension of statutes of limitation in favor
16 of the personal representative.--
17 (1) If a person entitled to bring an action dies
18 before the expiration of the time limited for the commencement
19 of the action and the cause of action survives, the action may
20 be commenced by that person's his or her personal
21 representative before the later of the expiration of the time
22 limited for the commencement of the action or 12 months after
23 the expiration and within 12 months from the date of the
24 decedent's death.
25 (2) If a person against whom a cause of action exists
26 dies before the expiration of the time limited for
27 commencement of the action and the cause of action survives,
28 if a claim is timely filed shall be filed on the cause of
29 action, and it shall then proceed as other claims against the
30 estate, notwithstanding the expiration of the time limited for
31 commencement of the action shall not apply.
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1 Section 81. Section 733.105, Florida Statutes, is
2 amended to read:
3 733.105 Determination of beneficiaries.--
4 (1) When property passes by intestate succession or
5 under a will to a person not sufficiently identified in the
6 will is unclear and there is the personal representative is in
7 doubt about:
8 (a) Who is entitled to receive any part of the
9 property it or part of it, or
10 (b) The shares and amounts that any person is entitled
11 to receive,
12
13 any interested person the personal representative may petition
14 the court to determine beneficiaries or their shares file a
15 petition setting forth the names, residences, and post office
16 addresses of all persons in interest, except creditors of the
17 decedent, so far as known or ascertainable by diligent search
18 and inquiry, and the nature of their respective interests,
19 designating those who are believed by the personal
20 representative to be minors or incompetents and stating
21 whether those so designated are under legal guardianship in
22 this state. If the personal representative believes that
23 there are, or may be, persons whose names are not known to him
24 or her who have claims against, or interest in, the estate as
25 heirs or devisees, the petition shall so state.
26 (2) After formal notice and hearing, the court shall
27 enter an order determining the heirs or devisees or the shares
28 and amounts they are entitled to receive, or both. Any
29 personal representative who makes distribution or takes any
30 other action pursuant to an the order determining
31 beneficiaries shall be fully protected.
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1 (3) When it is necessary to determine who are or were
2 the heirs or devisees, the court may make a determination, on
3 the petition of any interested person, in like proceedings and
4 after formal notice, irrespective of whether the estate of the
5 deceased person is administered or, if administered, whether
6 the administration of the estate has been closed or the
7 personal representative discharged. A separate civil action
8 to determine beneficiaries may be brought under this
9 subsection when an estate has not been is not being
10 administered.
11 Section 82. Subsections (2), (3), and (4) of section
12 733.106, Florida Statutes, are amended to read:
13 733.106 Costs and attorney's attorney fees.--
14 (2) A person nominated as personal representative of
15 the last known will, or any proponent of a the will if the
16 person so nominated does not act within a reasonable time, if
17 in good faith justified in offering the will in due form for
18 probate, shall receive his or her costs and attorney's
19 attorney fees from out of the estate even though probate is
20 denied or revoked he or she is unsuccessful.
21 (3) Any attorney who has rendered services to an
22 estate may be awarded reasonable compensation from the estate
23 apply for an order awarding attorney fees, and after informal
24 notice to the personal representative and all persons bearing
25 the impact of the payment the court shall enter its order on
26 the petition.
27 (4) When costs and attorney's attorney fees are to be
28 paid from out of the estate, the court may, in its discretion,
29 direct from what part of the estate they shall be paid.
30 Section 83. Section 733.107, Florida Statutes, is
31 amended to read:
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1 733.107 Burden of proof in contests.--In all
2 proceedings contesting the validity of a will, the burden
3 shall be upon the proponent of the will to establish prima
4 facie its formal execution and attestation. Thereafter, the
5 contestant shall have the burden of establishing the grounds
6 on which the probate of the will is opposed or revocation is
7 sought.
8 Section 84. Section 733.109, Florida Statutes, is
9 amended to read:
10 733.109 Revocation of probate.--
11 (1) A proceeding to revoke the probate of a will shall
12 be brought in the court having jurisdiction over the
13 administration. Any interested person, including a beneficiary
14 under a prior will, unless except those barred under s.
15 733.212 or s. 733.2123, may commence the proceeding, before
16 final discharge of the personal representative, petition the
17 court in which the will was admitted to probate for revocation
18 of probate.
19 (a) The petition shall state the interest of the
20 petitioner and the grounds for revocation.
21 (b) The petition shall be served upon the personal
22 representative and all interested persons by formal notice,
23 and thereafter proceedings shall be conducted as an adversary
24 proceeding under the rules of civil procedure.
25 (2) Pending the determination of any petition for
26 revocation of probate, the personal representative shall
27 proceed with the administration of the estate as if no
28 revocation proceeding had been commenced, except that no
29 distribution may be made to beneficiaries devisees in
30 contravention of the rights of those who, but for the will,
31 would be entitled to the property disposed of.
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1 (3) Revocation of probate of a will shall not affect
2 or impair the title to the property theretofore purchased in
3 good faith for value from the personal representative prior to
4 an order of revocation.
5 Section 85. Subsection (3) of section 733.201, Florida
6 Statutes, is amended to read:
7 733.201 Proof of wills.--
8 (3) If it appears to the court that the attesting
9 witnesses cannot be found or that they have become incompetent
10 after the execution of the will or their testimony cannot be
11 obtained within a reasonable time, a will may be admitted to
12 probate upon the oath of the personal representative nominated
13 by the will as provided in subsection (2), whether or not the
14 nominated personal representative he or she is interested in
15 the estate, or upon the oath of any person having no interest
16 in the estate under the will stating, that the person he or
17 she believes the writing exhibited to be the true last will of
18 the decedent.
19 Section 86. Section 733.202, Florida Statutes, is
20 amended to read:
21 733.202 Petition.--Any interested person may petition
22 for administration.
23 (1) A verified petition for administration may be
24 filed by any interested person.
25 (2) The petition for administration shall contain:
26 (a) A statement of the interest of the petitioner, the
27 petitioner's name and address, and the name and office address
28 of his or her attorney.
29 (b) The name, last known address, social security
30 number, and date and place of death of the decedent and the
31 state and county of the decedent's domicile.
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1 (c) So far as is known, the names and addresses of the
2 beneficiaries and the dates of birth of any who are minors.
3 (d) A statement showing venue.
4 (e) The priority under part III of the person whose
5 appointment as the personal representative is sought.
6 (f) A statement of the approximate value and nature of
7 the assets so the clerk can ascertain the amount of the filing
8 fee and the court can determine the amount of any bond
9 authorized by this code.
10 (3) If the decedent was a nonresident of this state,
11 the petition shall state whether domiciliary proceedings are
12 pending in another state or country, if known, and, if so, the
13 name and address of the foreign personal representative and
14 the court issuing letters.
15 (4) In an intestate estate, the petition shall:
16 (a) State that after the exercise of reasonable
17 diligence the petitioner is unaware of any unrevoked wills or
18 codicils or, if the petitioner is aware of any unrevoked wills
19 or codicils, why the wills or codicils are not being probated,
20 or
21 (b) Otherwise give the facts concerning the will or
22 codicil.
23 (5) In a testate estate, the petition shall:
24 (a) Identify all unrevoked wills and codicils being
25 presented for probate.
26 (b) State that the petitioner is unaware of any other
27 unrevoked will or codicil or, if the petitioner is aware of
28 any other unrevoked will or codicil, why the other will or
29 codicil is not being probated.
30 (c) State that the original of the decedent's last
31 will is in the possession of the court or accompanies the
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1 petition or that an authenticated copy of a will probated in
2 another jurisdiction accompanies the petition.
3 Section 87. Section 733.203, Florida Statutes, is
4 repealed:
5 733.203 Notice; when required.--
6 (1) If a caveat has been filed by an heir or a devisee
7 under a will other than that being offered for probate, the
8 procedure provided for in s. 733.2123 shall be followed.
9 (2) Except as may otherwise be provided in this part,
10 no notice need be given of the petition for administration or
11 of the order granting letters when it appears that the
12 petitioner is entitled to preference of appointment. Before
13 letters shall be granted to any person who is not entitled to
14 preference, formal notice shall be served on all known persons
15 qualified to act as personal representative and entitled to
16 preference equal to or greater than the applicant, unless
17 those entitled to preference waive it in writing.
18 Section 88. Subsection (2) of section 733.204, Florida
19 Statutes, is amended to read:
20 733.204 Probate of a will written in a foreign
21 language.--
22 (2) In admitting the will to probate, the court shall
23 establish its correct English translation. If the original
24 will is not or cannot be filed, a photographic copy of the
25 original will shall be filed. At any time during the
26 administration any interested person may have the correctness
27 of the translation, or any part, redetermined after formal
28 notice to all other interested persons. No personal
29 representative who complies in good faith with the English
30 translation of the will as may then be established by the
31 court shall thereafter be held liable for doing as a result of
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1 having done so.
2 Section 89. Section 733.205, Florida Statutes, is
3 amended to read:
4 733.205 Probate of notarial will.--
5 (1) When a copy of a notarial will in the possession
6 of a notary entitled to its custody in a foreign state or
7 country, the laws of which state or country require that the
8 will remain in the custody of the such notary, duly
9 authenticated by the notary, whose official position,
10 signature, and seal of office are further authenticated by an
11 American consul, vice consul, or other American consular
12 officer within whose jurisdiction the notary is a resident, is
13 presented to the court, it may be admitted to probate if the
14 original could have been admitted to probate in this state.
15 (2) The duly authenticated copy shall be prima facie
16 evidence of its purported execution and of the facts stated in
17 the certificate in compliance with subsection (1).
18 (3) Any interested person notified may oppose the
19 probate of such a notarial will or may petition for revocation
20 of probate of such a notarial will, as in the case of original
21 probate of a will in this state.
22 Section 90. Subsection (3) of section 733.206, Florida
23 Statutes, is amended to read:
24 733.206 Probate of will of resident after foreign
25 probate.--
26 (3) Any interested person may oppose the probate of
27 the will, or may petition for revocation of the probate of the
28 will, as in the case of the original probate of a will in this
29 state.
30 Section 91. Section 733.207, Florida Statutes, is
31 amended to read:
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1 733.207 Establishment and probate of lost or destroyed
2 will.--Any interested person may establish the full and
3 precise terms of a lost or destroyed will and offer the will
4 for probate.
5 (1) The establishment and probate of a lost or
6 destroyed will shall be in one proceeding. The court shall
7 recite, and thereby establish and preserve, the full and
8 precise terms and provisions of the will in the order
9 admitting it to probate.
10 (2) The petition for probate of a lost or destroyed
11 will shall contain a copy of the will or its substance. The
12 testimony of each witness must be reduced to writing and filed
13 and shall be evidence in any contest of the will if the
14 witness has died or moved from the state.
15 (3) No lost or destroyed will shall be admitted to
16 probate unless formal notice has been given to those who, but
17 for the will, would be entitled to the property thereby
18 devised. The specific content of the will must be clearly and
19 distinctly proved by the testimony of two disinterested
20 witnesses, or, if a correct copy is provided, it shall be
21 proved by one disinterested witness.
22 Section 92. Section 733.208, Florida Statutes, is
23 amended to read:
24 733.208 Discovery of later will.--On the discovery of
25 a later will or codicil expressly or impliedly revoking the
26 probated will in whole or in part, pending or during
27 administration, any interested person may petition to revoke
28 the probate of the earlier will or to probate the later will
29 or codicil offer the later will for probate. The proceedings
30 shall be similar to those for revocation of probate. No later
31 will or codicil may be offered after the testate or intestate
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1 estate has been completely administered and the personal
2 representative discharged closing of the estate.
3 Section 93. Section 733.209, Florida Statutes, is
4 amended to read:
5 733.209 Estates of missing persons.--Any interested
6 person may petition to administer the estate of a missing
7 person; however, no personal representative shall be appointed
8 until the court determines the missing person is dead. The
9 estates of missing persons shall be administered in the same
10 manner as other estates. A petition for administration of the
11 estate shall request entry of an order declaring the death of
12 a missing person prior to appointing a personal representative
13 and commencing administration.
14 Section 94. Section 733.212, Florida Statutes, is
15 amended to read:
16 733.212 Notice of administration; filing of objections
17 and claims.--
18 (1) The personal representative shall promptly publish
19 a notice of administration. The notice shall contain the name
20 of the decedent, the file number of the estate, the
21 designation and address of the court in which the proceedings
22 are pending, the name and address of the personal
23 representative, and the name and address of the personal
24 representative's attorney and state the date of first
25 publication. The notice shall require all interested persons
26 to file with the court:
27 (a) All claims against the estate within the time
28 periods set forth in s. 733.702, or be forever barred.
29 (b) Any objection by an interested person on whom
30 notice was served that challenges the validity of the will,
31 the qualifications of the personal representative, venue, or
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1 jurisdiction of the court within the later of 3 months after
2 the date of the first publication of the notice or 30 days
3 after the date of service of a copy of the notice on the
4 objecting person.
5 (2) Publication shall be once a week for 2 consecutive
6 weeks, two publications being sufficient, in a newspaper
7 published in the county where the estate is administered or,
8 if there is no newspaper published in the county, in a
9 newspaper of general circulation in that county.
10 (1)(3) The personal representative shall promptly
11 serve a copy of the notice of administration on the following
12 persons who are known to the personal representative:
13 (a) The decedent's surviving spouse;
14 (b) Beneficiaries; and
15 (c) The trustee of any trust described in s.
16 733.707(3); and, of which the decedent was grantor
17 (d) Persons who may be entitled to exempt property
18
19 in the manner provided for service of formal notice, unless
20 served under s. 733.2123. The personal representative may
21 similarly serve a copy of the notice on any devisees under a
22 known prior will or heirs or others who claim or may claim an
23 interest in the estate.
24 (2) The notice shall state the name of the decedent,
25 the file number of the estate, the designation and address of
26 the court in which the proceedings are pending, whether the
27 estate is testate or intestate, and, if testate, the date of
28 the will and any codicils, the name and address of the
29 personal representative, and the name and address of the
30 personal representative's attorney. The notice shall state
31 that interested persons are required to file with the court
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1 any objection by an interested person on whom the notice was
2 served that challenges the validity of the will, the
3 qualifications of the personal representative, venue, or
4 jurisdiction of the court within 3 months after the date of
5 service of a copy of the notice of administration on the
6 objecting person.
7 (3) Any interested person on whom a copy of the notice
8 of administration was served must object to the validity of
9 the will, the qualifications of the personal representative,
10 venue, or jurisdiction of the court by filing a petition or
11 other pleading requesting relief in accordance with the
12 Florida Probate Rules within 3 months after the date of
13 service of a copy of the notice of administration on the
14 objecting person or those objections are forever barred. The
15 appointment of a personal representative or a successor
16 personal representative shall not extend or renew the period
17 for filing objections under this section, unless a new will or
18 codicil is admitted.
19 (4)(a) The personal representative shall promptly make
20 a diligent search to determine the names and addresses of
21 creditors of the decedent who are reasonably ascertainable and
22 shall serve on those creditors a copy of the notice within 3
23 months after the first publication of the notice. Under s.
24 409.9101, the Agency for Health Care Administration is
25 considered a reasonably ascertainable creditor in instances
26 where the decedent had received Medicaid assistance for
27 medical care after reaching 55 years of age. Impracticable and
28 extended searches are not required. Service is not required
29 on any creditor who has filed a claim as provided in this
30 part; a creditor whose claim has been paid in full; or a
31 creditor whose claim is listed in a personal representative's
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1 timely proof of claim if the personal representative notified
2 the creditor of that listing.
3 (4)(b) The personal representative is not individually
4 liable to any person for giving notice under this section
5 subsection, regardless of whether it is later determined that
6 such notice was not required by this section. The service of
7 notice in accordance with this section subsection shall not be
8 construed as conferring any right admitting the validity or
9 enforceability of a claim.
10 (5)(c) If the personal representative in good faith
11 fails to give notice required by this section subsection, the
12 personal representative is not liable to any person for the
13 failure. Liability, if any, for the failure in such a case is
14 on the estate.
15 (5) Objections under paragraph (1)(b), by persons on
16 whom notice was served, that are not filed within the later of
17 3 months after the date of first publication of the notice or
18 30 days after the date of service of a copy of the notice on
19 the objecting person are forever barred.
20 (6) If a will or codicil is subsequently admitted to
21 probate, the personal representative shall promptly serve a
22 copy of a new notice of administration as required for an
23 initial will admission. Claims under paragraph (1)(a) are
24 barred as provided in s. 733.702.
25 Section 95. Section 733.2121, Florida Statutes, is
26 created to read:
27 733.2121 Notice to creditors; filing of claims.--
28 (1) Unless creditors' claims are otherwise barred by
29 s. 733.710, the personal representative shall promptly publish
30 a notice to creditors. The notice shall contain the name of
31 the decedent, the file number of the estate, the designation
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1 and address of the court in which the proceedings are pending,
2 the name and address of the personal representative, the name
3 and address of the personal representative's attorney, and the
4 date of first publication. The notice shall state that
5 creditors must file claims against the estate with the court
6 within the time periods set forth in ss. 733.702 and 733.710,
7 or be forever barred.
8 (2) Publication shall be once a week for 2 consecutive
9 weeks, in a newspaper published in the county where the estate
10 is administered or, if there is no newspaper published in the
11 county, in a newspaper of general circulation in that county.
12 (3)(a) The personal representative shall promptly make
13 a diligent search to determine the names and addresses of
14 creditors of the decedent who are reasonably ascertainable,
15 even if the claims are unmatured, contingent, or unliquidated,
16 and shall promptly serve a copy of the notice on those
17 creditors. Impracticable and extended searches are not
18 required. Service is not required on any creditor who has
19 filed a claim as provided in this part, whose claim has been
20 paid in full, or whose claim is listed in a personal
21 representative's timely filed proof of claim.
22 (b) The personal representative is not individually
23 liable to any person for giving notice under this section,
24 even if it is later determined that notice was not required.
25 The service of notice to creditors in accordance with this
26 section shall not be construed as admitting the validity or
27 enforceability of a claim.
28 (c) If the personal representative in good faith fails
29 to give notice required by this section, the personal
30 representative is not liable to any person for the failure.
31 Liability, if any, for the failure is on the estate.
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1 (d) If a decedent at the time of death was 55 years of
2 age or older, the personal representative shall promptly serve
3 a copy of the notice to creditors on the Agency for Health
4 Care Administration within 3 months after the first
5 publication of the notice to creditors, unless the agency has
6 already filed a statement of claim in the estate proceedings.
7 (e) If the Department of Revenue has not previously
8 been served with a copy of the notice to creditors, then
9 service of the inventory on the Department of Revenue shall be
10 the equivalent of service of a copy of the notice to
11 creditors.
12 (4) Claims are barred as provided in ss. 733.702 and
13 733.710.
14 Section 96. Section 733.2123, Florida Statutes, is
15 amended to read:
16 733.2123 Adjudication before issuance of letters.--A
17 petitioner may serve formal notice of the his or her petition
18 for administration on interested persons. A copy of the will
19 offered for proposed to be admitted to probate shall be
20 attached to the notice. No person who is served with formal
21 notice of the petition for administration prior to the
22 issuance of letters or who has waived notice may challenge the
23 validity of the will, testacy of the decedent, qualifications
24 of the personal representative, venue, or jurisdiction of the
25 court, except in connection with the proceedings before
26 issuance of letters.
27 Section 97. Section 733.213, Florida Statutes, is
28 amended to read:
29 733.213 Probate as prerequisite to judicial petition
30 for construction of will.--A will may not be construed until
31 it has been admitted to probate No pleading seeking
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1 construction of a will may be maintained until the will has
2 first been probated.
3 Section 98. Section 733.301, Florida Statutes, is
4 amended to read:
5 733.301 Preference in appointment of personal
6 representative.--
7 (1) In the granting of letters of administration, the
8 following order of preference preferences shall be observed:
9 (a)(1) In testate estates:
10 1.(a) The personal representative, or his or her
11 successor, nominated by the will or pursuant to a power
12 conferred in the will.
13 2.(b) The person selected by a majority in interest of
14 the persons entitled to the estate.
15 3.(c) A devisee under the will. If more than one
16 devisee applies, the court may select exercise its discretion
17 in selecting the one best qualified.
18 (b)(2) In intestate estates:
19 1.(a) The surviving spouse.
20 2.(b) The person selected by a majority in interest of
21 the heirs.
22 3.(c) The heir nearest in degree. If more than one
23 applies, the court may select exercise its discretion in
24 selecting the one best qualified for the office.
25 (2)(3) A guardian of the property of a ward who if
26 competent would be entitled to appointment as, or to select,
27 the a personal representative may exercise the right to select
28 the personal representative.
29 (3)(4) In either a testate or an intestate estate, if
30 no application is made by any of the persons described named
31 in subsection (1) or subsection (2), the court shall appoint a
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1 capable person; but no person may be appointed under this
2 subsection:
3 (a) Who works for, or holds public office under, the
4 court.
5 (b) Who is employed by, or holds office under, any
6 judge exercising probate jurisdiction.
7 (4)(5) After letters have been granted in either a
8 testate or an intestate estate, if a person who was entitled
9 to, and has not waived, preference over the person appointed
10 at the time of the his or her appointment and on whom formal
11 notice was not served seeks the appointment, the letters
12 granted may be revoked and the person entitled to preference
13 may have letters granted to him or her after formal notice and
14 hearing.
15 (5)(6) After letters have been granted in either a
16 testate or an intestate estate, if any will is subsequently
17 admitted to probate the letters shall be revoked and new
18 letters granted as provided in subsection (1).
19 Section 99. Section 733.302, Florida Statutes, is
20 amended to read:
21 733.302 Who may be appointed personal
22 representative.--Subject to the limitations in this part, any
23 person who is sui juris and who is a resident of Florida at
24 the time of the death of the person whose estate is to be
25 administered he or she seeks to administer is qualified to act
26 as personal representative in Florida. A person who has been
27 convicted of a felony or who, from sickness, intemperance, or
28 want of understanding, is incompetent to discharge the duties
29 of a personal representative is not qualified.
30 Section 100. Subsections (1) and (2) of section
31 733.305, Florida Statutes, are amended to read:
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1 733.305 Trust companies and other corporations and
2 associations.--
3 (1) All trust companies incorporated under the laws of
4 Florida the state, all state banking corporations and state
5 savings associations authorized and qualified to exercise
6 fiduciary powers in Florida, and all national banking
7 associations and federal savings and loan associations
8 authorized and qualified to exercise fiduciary powers in
9 Florida shall be entitled to act as personal representatives
10 and curators of estates.
11 (2) When a qualified corporation has been named as a
12 personal representative in a will and subsequently thereafter
13 transfers its business and assets to, consolidates or merges
14 with, or is in any manner provided by law succeeded by,
15 another qualified corporation, on the death of the testator,
16 the successor corporation may qualify as personal
17 representative, and the court may issue letters to the
18 successor corporation unless the will provides otherwise.
19 Section 101. Section 733.306, Florida Statutes, is
20 amended to read:
21 733.306 Effect of appointment of debtor.--The
22 appointment of a debtor as personal representative shall not
23 extinguish the debt due to the decedent. This section shall
24 not prevent a testator from releasing a debtor by will.
25 Section 102. Section 733.307, Florida Statutes, is
26 amended to read:
27 733.307 Succession of administration.--The No personal
28 representative of the estate of a deceased personal
29 representative is not as such shall be authorized to
30 administer the estate of the first decedent. On the death of
31 a the sole or surviving personal representative, the court
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1 shall appoint a successor personal representative to complete
2 the administration of the estate.
3 Section 103. Section 733.308, Florida Statutes, is
4 amended to read:
5 733.308 Administrator ad litem.--When it is necessary
6 that an estate must be represented and the there is no
7 personal representative is unable to do so of the estate, the
8 court shall appoint an administrator ad litem without bond to
9 represent the estate in that for that particular proceeding.
10 The fact that the personal representative is seeking
11 reimbursement for claims against the decedent paid by the
12 personal representative does not require appointment of an
13 administrator ad litem.
14 Section 104. Section 733.309, Florida Statutes, is
15 amended to read:
16 733.309 Executor de son tort.--No person shall be
17 liable to a creditor of a decedent as executor de son tort,
18 but any person taking, converting, or intermeddling with the
19 property of a decedent shall be liable to the personal
20 representative or curator, when appointed, for the value of
21 all the property so taken or converted and for all damages to
22 the estate caused by the his or her wrongful action. This
23 section shall not be construed to prevent a creditor of a
24 decedent from suing anyone in possession of property
25 fraudulently conveyed by the decedent to set aside the
26 fraudulent conveyance.
27 Section 105. Section 733.310, Florida Statutes, is
28 created to read:
29 733.310 Personal representative not qualified.--Any
30 time a personal representative knows or should have known that
31 he or she would not be qualified for appointment if
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1 application for appointment were then made, the personal
2 representative shall promptly file and serve a notice setting
3 forth the reasons. A personal representative who fails to
4 comply with this section shall be personally liable for costs,
5 including attorney's fees, incurred in any removal proceeding,
6 if the personal representative is removed. This liability
7 shall be cumulative to any other provided by law.
8 Section 106. Section 733.401, Florida Statutes, is
9 repealed:
10 733.401 Issuance of letters.--
11 (1) After the petition for administration is filed:
12 (a) The will, if any, shall be proved as provided
13 elsewhere in this code and shall be admitted to probate.
14 (b) The court shall appoint the person entitled and
15 qualified to be personal representative.
16 (c) The court shall determine the amount of any bond
17 required under this part. The clerk may approve the bond in
18 the amount determined by the court and shall not charge a
19 service fee.
20 (d) Any required oath or designation of, and
21 acceptance by, a resident agent shall be filed.
22 (2) Upon compliance with all of the foregoing, letters
23 shall be issued to the personal representative.
24 (3) Mistaken noncompliance with any of the
25 requirements of subsection (1) shall not be jurisdictional.
26 Section 107. Section 733.402, Florida Statutes, is
27 amended to read:
28 733.402 Bond of fiduciary personal representative;
29 when required; form.--
30 (1) Unless the bond requirement has been waived by the
31 will or by the court testator waived the requirement, every
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1 fiduciary person to whom letters are granted shall execute and
2 file a bond with surety, as defined in s. 45.011, to be
3 approved by the clerk without a service fee. The bond shall be
4 payable to the Governor and the Governor's successors in
5 office, conditioned on the performance of all duties as
6 personal representative according to law. The bond must be
7 joint and several.
8 (2) No bond executed by a personal representative or
9 curator shall be void or invalid because of an informality in
10 it or an informality or illegality in the appointment of the
11 fiduciary. The bond shall have the same force as if the
12 appointment had been legally made and the bond executed in
13 proper form.
14 (3) The requirements of this section shall not apply
15 to banks and trust companies authorized by law to act as
16 personal representative.
17 (4) On petition by any interested person or on the
18 court's own motion, the court may waive the requirement of
19 filing a bond, require a bond, increase or decrease the bond,
20 or require additional surety.
21 Section 108. Section 733.403, Florida Statutes, is
22 amended to read:
23 733.403 Amount of bond.--
24 (1) All bonds required by this part shall be in the
25 penal sum that the court deems sufficient after consideration
26 of the gross value of the estate, the relationship of the
27 personal representative to the beneficiaries, exempt property
28 and any family allowance, the type and nature of assets, known
29 creditors, and liens and encumbrances on the assets.
30 (2) On petition by any interested person or on the
31 court's own motion, the court may waive the requirement of
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1 filing a bond, require a personal representative or curator to
2 give bond, increase or decrease the bond, or require
3 additional surety.
4 Section 109. Section 733.404, Florida Statutes, is
5 amended to read:
6 733.404 Liability of surety.--No surety for any
7 personal representative or curator shall be charged beyond the
8 value of the assets of an estate because of any omission or
9 mistake in pleading or of false pleading of the personal
10 representative or curator.
11 Section 110. Section 733.405, Florida Statutes, is
12 amended to read:
13 733.405 Release of surety.--
14 (1) Subject to the limitations of this section, on the
15 petition of any interested person, the surety is entitled to
16 be released from liability for the future acts and omissions
17 of the fiduciary On petitioning the surety, or the personal
18 representative of a surety, on the bond of any personal
19 representative or curator shall be entitled as a matter of
20 right to be released from future liability upon the bond.
21 (2) Pending the hearing of the petition, the court may
22 restrain the fiduciary principal from acting in his or her
23 representative capacity, except to preserve the estate.
24 (3) On hearing, the court shall enter an order
25 prescribing the amount of the new bond for the fiduciary
26 personal representative or curator and the date when the bond
27 shall be filed. If the fiduciary principal fails to give the
28 new bond, the fiduciary he or she shall be removed at once,
29 and further proceedings shall be had as in cases of removal.
30 (4) The original surety or sureties shall remain be
31 liable in accordance with the terms of its original bond for
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1 all acts and omissions of the fiduciary that occur prior to
2 personal representative or surety until he or she has given
3 the approval of the new surety and filing and approval of the
4 bond and, after the giving of the new bond, shall remain
5 liable for all the principal's acts to the time of the filing
6 and approval of the new bond. The new surety shall be liable
7 on its bond for the principal's acts only after the filing and
8 approval of the new bond.
9 Section 111. Section 733.406, Florida Statutes, is
10 amended to read:
11 733.406 Bond premium allowable as expense of
12 administration or costs.--A personal representative Any
13 receiver, assignee, trustee, committee, guardian, executor or
14 administrator, or other fiduciary required by law to give bond
15 shall pay the reasonable premium as an expense of
16 administration as such, may include as part of his or her
17 lawful expense such reasonable sum paid such an insurer for
18 such suretyship not exceeding 1 percent per annum on the
19 amount of the bond, as the head of department, board, court,
20 judge or officer by whom, or the court or body in which, he or
21 she was appointed allows; and in all actions or proceedings
22 the party entitled to recover costs may include therein such
23 reasonable sum as may have been paid such an insurer executing
24 or guaranteeing any bond or undertaking therein.
25 Section 112. Section 733.501, Florida Statutes, is
26 amended to read:
27 733.501 Curators.--
28 (1) When it is necessary, the court may appoint a
29 curator after and issue letters of curatorship to take charge
30 of the estate of a decedent until letters are granted. If the
31 person entitled to letters is a resident of the county where
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1 the property is situated, no curator shall be appointed until
2 formal notice is given to the person apparently so entitled to
3 letters of administration. The curator may be authorized to
4 perform any duty or function of a personal representative. If
5 there is great danger that any of the decedent's property is
6 likely to wasted, destroyed, or removed beyond the
7 jurisdiction of the court and if the appointment of a curator
8 would be delayed by giving notice, the court may appoint a
9 curator without giving notice. On appointment, the court shall
10 direct the person in possession of the effects of the decedent
11 to deliver them to the curator. The order may be enforced by
12 contempt.
13 (2) If there is great danger that the property or any
14 part of it is likely to be wasted, destroyed, or removed
15 beyond the jurisdiction of the court and if the appointment of
16 a curator would be delayed by giving notice, the court may
17 appoint a curator without giving notice.
18 (3) On special order of the court, the curator may be
19 authorized to perform any duty or function of a personal
20 representative.
21 (2)(4) Bond shall be required of the curator as the
22 court deems necessary to secure the property. No bond shall
23 be required of banks and trust companies as curators.
24 (5) The curator shall file an inventory of the
25 property within 20 days. When the personal representative
26 qualifies, the curator shall immediately account and deliver
27 all assets of the estate in his or her hands to the personal
28 representative within 20 days, and in default shall be subject
29 to the provisions of this code relating to removal of personal
30 representatives.
31 (3)(6) Curators shall be allowed reasonable
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1 compensation for their services and the court may consider the
2 provisions of s. 733.617.
3 (4) Curators shall be subject to removal and
4 surcharge.
5 Section 113. Section 733.502, Florida Statutes, is
6 amended to read:
7 733.502 Resignation of personal representative.--A
8 personal representative may resign and be relieved of his or
9 her office. Notice of the petition shall be given to all
10 interested persons. Before relieving the personal
11 representative from his or her duties and obligations, the
12 court shall require the personal representative to file a true
13 and correct account of his or her administration and deliver
14 to his or her successor or to his or her joint personal
15 representative all of the property of the decedent and all
16 records concerning the estate. After notice to all interested
17 persons, the court may accept the resignation and then revoke
18 the letters of the resigning personal representative if the
19 interests of the estate are not jeopardized by the
20 resignation. The acceptance of the resignation, after
21 compliance with this section, shall not exonerate the any
22 personal representative or the his or her surety from
23 liability previously incurred.
24 Section 114. Section 733.503, Florida Statutes, is
25 amended to read:
26 733.503 Appointment of successor upon
27 resignation.--When the personal representative's resignation
28 is accepted, the court shall appoint a personal representative
29 or shall appoint a curator to serve until a successor personal
30 representative is appointed If there is no joint personal
31 representative, a successor must be appointed and qualified
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1 before a personal representative may be relieved of his or her
2 duties and obligations as provided in s. 733.502.
3 Section 115. Section 733.5035, Florida Statutes, is
4 created to read:
5 733.5035 Surrender of assets after resignation.--When
6 the resignation has been accepted by the court, all estate
7 assets, records, documents, papers, and other property of or
8 concerning the estate in the resigning personal
9 representative's possession or control shall immediately be
10 surrendered to the successor fiduciary. The court may
11 establish the conditions and specify the assets and records,
12 if any, that the resigning personal representative may retain
13 until the final accounting of the resigning personal
14 representative has been approved.
15 Section 116. Section 733.5036, Florida Statutes, is
16 created to read:
17 733.5036 Accounting and discharge following
18 resignation.--
19 (1) A resigning personal representative shall file and
20 serve a final accounting of the personal representative's
21 administration.
22 (2) After determination and satisfaction of the
23 liability, if any, of the resigning personal representative,
24 after compensation of the personal representative and the
25 attorney and other persons employed by the personal
26 representative, and upon receipt of evidence that
27 undistributed estate assets have been delivered to the
28 successor fiduciary, the personal representative shall be
29 discharged, the bond released, and the surety discharged.
30 Section 117. Section 733.504, Florida Statutes, is
31 amended to read:
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1 733.504 Causes of Removal of personal representative;
2 causes for removal.--A personal representative may be removed
3 and the his or her letters revoked for any of the following
4 causes, and the removal shall be in addition to any penalties
5 prescribed by law:
6 (1) Adjudication of incompetency.
7 (2) Physical or mental incapacity rendering the
8 personal representative incapable of the discharge of his or
9 her duties.
10 (3) Failure to comply with any order of the court,
11 unless the order has been superseded on appeal.
12 (4) Failure to account for the sale of property or to
13 produce and exhibit the assets of the estate when so required.
14 (5) The Wasting or maladministration of the estate.
15 (6) Failure to give bond or security for any purpose.
16 (7) Conviction of a felony.
17 (8) Insolvency of, or the appointment of a receiver or
18 liquidator for, any corporate personal representative.
19 (9) The Holding or acquiring by the personal
20 representative of conflicting or adverse interests against the
21 estate that will or may adversely interfere with the
22 administration of the estate as a whole. This cause of
23 removal shall not apply to the surviving spouse because of the
24 exercise of the right to the elective share, family allowance,
25 or exemptions, as provided elsewhere in this code.
26 (10) Revocation of the probate of the decedent's will
27 that authorized or designated the appointment of the such
28 personal representative.
29 (11) Removal of domicile from Florida, if domicile was
30 a requirement of initial appointment the personal
31 representative is no longer qualified under part III of this
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1 chapter.
2 (12) The personal representative would not now be
3 entitled to appointment.
4 Section 118. Section 733.505, Florida Statutes, is
5 amended to read:
6 733.505 Jurisdiction in removal proceedings.--A
7 petition for removal shall be filed in the court having
8 jurisdiction of the administration issuing the letters.
9 Section 119. Section 733.506, Florida Statutes, is
10 amended to read:
11 733.506 Proceedings for removal.--Proceedings for
12 removal of a personal representative may be commenced by the
13 court or upon the petition of an by any interested person or
14 joint personal representative. The court shall revoke the
15 letters of a removed personal representative. The removal of a
16 personal representative shall not exonerate the removed
17 personal representative or the removed personal
18 representative's surety from any liability.
19 Section 120. Section 733.5061, Florida Statutes, is
20 created to read:
21 733.5061 Appointment of successor upon removal.--When
22 a personal representative is removed, the court shall appoint
23 a personal representative or shall appoint a curator to serve
24 until a successor personal representative is appointed.
25 Section 121. Section 733.507, Florida Statutes, is
26 repealed:
27 733.507 Administration following resignation or
28 removal.--When a personal representative has resigned or is
29 removed and there is a remaining personal representative, no
30 other personal representative shall be appointed unless the
31 will otherwise requires. The remaining personal
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1 representative, together with any successor personal
2 representative, if appointed, shall complete the
3 administration of the estate. If the resigned or removed
4 personal representative is a sole personal representative, the
5 court shall appoint a successor personal representative as
6 provided in s. 733.301.
7 Section 122. Section 733.508, Florida Statutes, is
8 amended to read:
9 733.508 Accounting and discharge of removed personal
10 representatives upon removal.--
11 (1) A removed personal representative shall file and
12 serve a final accounting of that personal representative's
13 administration.
14 (2) After determination and satisfaction of the
15 liability, if any, of the removed personal representative,
16 after compensation of that personal representative and the
17 attorney and other persons employed by that personal
18 representative, and upon receipt of evidence that the estate
19 assets have been delivered to the successor fiduciary, the
20 removed personal representative shall be discharged, the bond
21 released, and the surety discharged. A removed personal
22 representative shall file a full, true, and correct account of
23 his or her administration within 30 days after removal.
24 Section 123. Section 733.509, Florida Statutes, is
25 amended to read:
26 733.509 Surrender of assets upon removal.--Upon entry
27 of an order removing a personal representative, the removed
28 personal representative shall immediately deliver all estate
29 assets, records, documents, papers, and other property of or
30 concerning the estate in the removed personal representative's
31 possession or control to the remaining personal representative
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1 or successor fiduciary The removed personal representative
2 shall deliver to the remaining or successor personal
3 representative all of the property of the decedent and all
4 records, documents, papers, and other property of or
5 concerning the estate.
6 Section 124. Section 733.601, Florida Statutes, is
7 amended to read:
8 733.601 Time of accrual of duties and powers.--The
9 duties and powers of a personal representative commence upon
10 his or her appointment. The powers of a personal
11 representative relate back in time to give acts by the person
12 appointed, occurring before appointment and beneficial to the
13 estate, the same effect as those occurring after appointment
14 thereafter. Before issuance of letters, a person named
15 executor in a will may carry out written instructions of the
16 decedent relating to the decedent's body and funeral and
17 burial arrangements. A personal representative may ratify and
18 accept acts on behalf of the estate done by others when the
19 acts would have been proper for a personal representative.
20 Section 125. Section 733.602, Florida Statutes, is
21 amended to read:
22 733.602 General duties.--
23 (1) A personal representative is a fiduciary who shall
24 observe the standards of care applicable to trustees as
25 described by s. 737.302. A personal representative is under a
26 duty to settle and distribute the estate of the decedent in
27 accordance with the terms of the decedent's will and this code
28 as expeditiously and efficiently as is consistent with the
29 best interests of the estate. A personal representative shall
30 use the authority conferred upon him or her by this code, the
31 authority in the will, if any, and the authority of any order
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1 of the court in proceedings to which he or she is party, for
2 the best interests of interested persons, including creditors
3 as well as beneficiaries.
4 (2) A personal representative shall not be liable for
5 any act of administration or distribution if the act was
6 authorized at the time. Subject to other obligations of
7 administration, a probated will is authority to administer and
8 distribute the estate according to its terms. An order of
9 appointment of a personal representative is authority to
10 distribute apparently intestate assets to the heirs of the
11 decedent if, at the time of distribution, the personal
12 representative is not aware of a proceeding challenging
13 intestacy or a proceeding questioning the his or her
14 appointment or fitness to continue. Nothing in this section
15 affects the duty of the personal representative to administer
16 and distribute the estate in accordance with the rights of
17 interested persons.
18 Section 126. Section 733.603, Florida Statutes, is
19 amended to read:
20 733.603 Personal representative to proceed without
21 court order.--A personal representative shall proceed
22 expeditiously with the settlement and distribution of a
23 decedent's estate and, except as otherwise specified by this
24 code or ordered by the court, shall do so without
25 adjudication, order, or direction of the court. A personal
26 representative may invoke the jurisdiction of the court to
27 resolve judicial questions concerning the estate or its
28 administration.
29 Section 127. Section 733.604, Florida Statutes, is
30 amended to read:
31 733.604 Inventory.--
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1 (1)(a) Unless an inventory has been previously filed
2 Within 60 days after issuance of letters, a personal
3 representative who is not a curator or a successor to another
4 personal representative who has previously discharged the duty
5 shall file a verified an inventory of property of the estate,
6 listing it with reasonable detail and including for each
7 listed item its estimated fair market value at the date of the
8 decedent's death. Unless otherwise ordered by the court for
9 good cause shown, the any such inventory or amended or
10 supplementary inventory is subject to inspection only by the
11 clerk of the court, or the clerk's representative, the
12 personal representative, and the personal representative's
13 attorney, and other interested persons.
14 (b) The initial opening of any safe-deposit box of the
15 decedent must be conducted in the presence of an employee of
16 the institution where the box is located and the personal
17 representative. The inventory of the contents of the box also
18 must be conducted in the presence of the employee and the
19 personal representative, each of whom must verify the contents
20 of the box by signing a copy of the inventory. The personal
21 representative shall file the safe-deposit box inventory with
22 the court within 10 days after the box is opened.
23 (2) The personal representative shall serve a copy of
24 the inventory on the Department of Revenue, as provided in s.
25 199.062(4), the surviving spouse, each heir at law in an
26 intestate estate, each residuary beneficiary in a testate
27 estate, and any other interested person who may request it;
28 and the personal representative shall file proof of such
29 service. The inventory shall be verified by the personal
30 representative.
31 (2)(3) If the personal representative learns of any
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1 property not included in the original inventory, or learns
2 that the estimated value or description indicated in the
3 original inventory for any item is erroneous or misleading,
4 the personal representative he or she shall file a verified
5 prepare an amended or supplementary inventory showing any the
6 estimated value of the new items and their estimated value
7 item at the date of the decedent's death, or the revised
8 estimated value or description; and the personal
9 representative shall serve a copy of the amended or
10 supplementary inventory on each person on whom a copy of the
11 inventory was served and shall file proof of such service.
12 The amended or supplementary inventory shall be verified by
13 the personal representative.
14 (3)(4) Upon written request to the personal
15 representative, a beneficiary shall be furnished a written
16 explanation of how the inventory value for an asset was
17 determined, or, if an appraisal was obtained, a copy of the
18 appraisal, as follows:
19 (a) To a residuary beneficiary or heir in an intestate
20 estate, regarding all inventoried assets.
21 (b) To any other beneficiary, regarding all assets
22 distributed or proposed to be distributed to that beneficiary.
23 Upon the written request of a beneficiary for any asset
24 specifically devised to that beneficiary, a beneficiary for
25 any asset received by that beneficiary in satisfaction of a
26 general devise, or a residuary beneficiary of a intestate
27 estate or an heir of an intestate estate, for any asset not
28 specifically devised, the personal representative shall
29 promptly furnish a written explanation of how the inventory
30 value for the asset was determined, including whether the
31 personal representative obtained an independent appraisal for
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1 that asset and from whom the appraisal was obtained. The
2 personal representative must notify each beneficiary of that
3 beneficiary's rights under this subsection the right to
4 request information regarding determination of the inventory
5 value of an asset. Neither a request nor the failure to
6 request information under this subsection affects any rights
7 of a beneficiary in subsequent proceedings concerning any
8 accounting of the personal representative or the propriety of
9 any action of the personal representative.
10 Section 128. Section 733.605, Florida Statutes, is
11 repealed:
12 733.605 Appraisers.--The personal representative may
13 employ a qualified and disinterested appraiser to assist him
14 or her in ascertaining the fair market value of any asset at
15 the date of the decedent's death or any other date that may be
16 appropriate, the value of which may be subject to reasonable
17 doubt. Different persons may be employed to appraise different
18 kinds of assets included in the estate.
19 Section 129. Section 733.6065, Florida Statutes, is
20 created to read:
21 733.6065 Opening safe-deposit box.--
22 (1) Subject to the provisions of s. 655.936(2), the
23 initial opening of the decedent's safe-deposit box shall be
24 conducted in the presence of any two of the following persons:
25 an employee of the institution where the box is located, the
26 personal representative, or the personal representative's
27 attorney of record. Each person who is present must verify
28 the contents of the box by signing a copy of the inventory
29 under penalties of perjury. The personal representative shall
30 file the safe-deposit box inventory, together with a copy of
31 the box entry record from a date which is 6 months prior to
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1 the date of death to the date of inventory, with the court
2 within 10 days after the box is opened. Unless otherwise
3 ordered by the court, this inventory and the attached box
4 entry record is subject to inspection only by persons entitled
5 to inspect an inventory under s. 733.604(1). The personal
6 representative may remove the contents of the box.
7 (2) The right to open and examine the contents of a
8 safe-deposit box leased by a decedent, or any documents
9 delivered by a decedent for safekeeping, and to receive items
10 as provided for in s. 655.935 are in addition to the rights
11 provided for in subsection (1).
12 Section 130. Section 733.607, Florida Statutes, is
13 amended to read:
14 733.607 Possession of estate.--
15 (1) Except as otherwise provided by a decedent's will,
16 every personal representative has a right to, and shall take
17 possession or control of, the decedent's property, except the
18 protected homestead, but any real property or tangible
19 personal property may be left with, or surrendered to, the
20 person presumptively entitled to it unless possession of the
21 property by the personal representative will be necessary for
22 purposes of administration. The request by a personal
23 representative for delivery of any property possessed by a
24 beneficiary is conclusive evidence that the possession of the
25 property by the personal representative is necessary for the
26 purposes of administration, in any action against the
27 beneficiary for possession of it. The personal representative
28 shall take all steps reasonably necessary for the management,
29 protection, and preservation of the estate until distribution
30 and. He or she may maintain an action to recover possession of
31 property or to determine the title to it.
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1 (2) If, after providing for statutory entitlements and
2 all devises other than residuary devises, the assets of the
3 decedent's estate are insufficient to pay the expenses of the
4 administration and obligations of the decedent's estate and
5 enforceable claims of the decedent's creditors, the personal
6 representative is entitled to payment from the trustee of a
7 trust described in s. 733.707(3), in the amount the personal
8 representative certifies in writing to be required to satisfy
9 the such insufficiency.
10 Section 131. Section 733.608, Florida Statutes, is
11 amended to read:
12 733.608 General power of the personal
13 representative.--
14 (1) All real and personal property of the decedent,
15 except the protected homestead, within this state and the
16 rents, income, issues, and profits from it shall be assets in
17 the hands of the personal representative:
18 (a)(1) For the payment of devises, debts, family
19 allowance, elective share, estate and inheritance taxes,
20 claims, charges, and expenses of the administration and
21 obligations of the decedent's estate.
22 (b)(2) To enforce contribution and equalize
23 advancement.
24 (c)(3) For distribution.
25 (2) If property that reasonably appears to the
26 personal representative to be protected homestead is not in
27 the possession of a person who appears to have an interest in
28 the property, the personal representative is authorized, but
29 not required, to take possession of that property for the
30 limited purpose of preserving, insuring, and protecting it for
31 the heir or devisee, pending a determination of its homestead
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1 status. If the personal representative takes possession of
2 that property, any rents and revenues may be collected by the
3 personal representative for the account of the heir or
4 devisee, but the personal representative shall have no duty to
5 rent or otherwise make the property productive.
6 Section 132. Section 733.609, Florida Statutes, is
7 amended to read:
8 733.609 Improper exercise of power; breach of
9 fiduciary duty.--A personal representative's fiduciary duty is
10 the same as the fiduciary duty of a trustee of an express
11 trust and a personal representative is liable to interested
12 persons for damage or loss resulting from the breach of this
13 duty. In all actions for breach of fiduciary duty or
14 challenging the exercise of or failure to exercise a personal
15 representative's powers, the court shall award taxable costs
16 as in chancery actions, including attorney's fees If the
17 exercise of power concerning the estate is improper or in bad
18 faith, the personal representative is liable to interested
19 persons for damage or loss resulting from a breach of his or
20 her fiduciary duty to the same extent as a trustee of an
21 express trust. In all actions challenging the proper exercise
22 of a personal representative's powers, the court shall award
23 taxable costs as in chancery actions, including attorney's
24 fees.
25 Section 133. Section 733.610, Florida Statutes, is
26 amended to read:
27 733.610 Sale, encumbrance or transaction involving
28 conflict of interest.--Any sale or encumbrance to the personal
29 representative or the personal representative's his or her
30 spouse, agent, or attorney, or any corporation or trust in
31 which the personal representative has a substantial beneficial
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1 interest, or any transaction that is affected by a conflict of
2 interest on the part of the personal representative, is
3 voidable by any interested person except one who has consented
4 after fair disclosure, unless:
5 (1) The will or a contract entered into by the
6 decedent expressly authorized the transaction; or
7 (2) The transaction is approved by the court after
8 notice to interested persons.
9 Section 134. Section 733.611, Florida Statutes, is
10 amended to read:
11 733.611 Persons dealing with the personal
12 representative; protection.--Except as provided in s.
13 733.613(1), a person who in good faith either assists or deals
14 for value with a personal representative or deals with him or
15 her for value is protected as if the personal representative
16 acted properly exercised his or her power. The fact that a
17 person knowingly deals with the personal representative does
18 not alone require the person to inquire into the authority of
19 the personal representative existence of his or her power, the
20 limits on the power, or the propriety of its exercise. A
21 person is not bound to see to the proper application of estate
22 assets paid or delivered to the personal representative. This
23 The protection here expressed extends to instances in which a
24 procedural irregularity or jurisdictional defect occurred in
25 proceedings leading to the issuance of letters, including a
26 case in which the alleged decedent is alive. This protection
27 is in addition to any protection afforded by The protection
28 here expressed is not by substitution for that provided in
29 comparable provisions of the laws relating to commercial
30 transactions and laws simplifying transfers of securities by
31 fiduciaries.
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1 Section 135. Section 733.612, Florida Statutes, is
2 amended to read:
3 733.612 Transactions authorized for the personal
4 representative; exceptions.--Except as otherwise provided by
5 the will or court by order of court, and subject to the
6 priorities stated in s. 733.805, without court order of court,
7 a personal representative, acting reasonably for the benefit
8 of the interested persons, may properly:
9 (1) Retain assets owned by the decedent, pending
10 distribution or liquidation, including those in which the
11 personal representative is personally interested or that are
12 otherwise improper for fiduciary trust investments.
13 (2) Perform or compromise, or, when proper, refuse to
14 perform performance of, the decedent's contracts. In
15 performing the decedent's enforceable contracts by the
16 decedent to convey or lease real property, among other
17 possible courses of action, the personal representative may:
18 (a) Convey the real property for cash payment of all
19 sums remaining due or for the purchaser's note for the sum
20 remaining due, secured by a mortgage on the property land.
21 (b) Deliver a deed in escrow, with directions that the
22 proceeds, when paid in accordance with the escrow agreement,
23 be paid as provided to the distributees of the decedent, as
24 designated in the escrow agreement.
25 (3) Receive assets from fiduciaries or other sources.
26 (4) Invest funds as provided in ss. 518.10-518.14,
27 considering the amount to be invested, liquidity needs of the
28 estate, and the time until distribution will be made If funds
29 are not needed to meet debts and expenses currently payable
30 and are not immediately distributable, deposit or invest
31 liquid assets of the estate, including moneys received from
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1 the sale of other assets, in federally insured
2 interest-bearing accounts, readily marketable secured loan
3 arrangements, or other prudent investments that would be
4 reasonable for use by trustees.
5 (5) Acquire or dispose of an asset, excluding real
6 property in this or another state, for cash or on credit and
7 at public or private sale, and manage, develop, improve,
8 exchange, partition, or change the character of an estate
9 asset.
10 (6) Make ordinary or extraordinary repairs or
11 alterations in buildings or other structures; demolish
12 improvements; or erect new party walls or buildings.
13 (7) Enter into a lease, as lessor or lessee, for a
14 term within, or extending beyond, the period of
15 administration, with or without an option to renew.
16 (8) Enter into a lease or arrangement for exploration
17 and removal of minerals or other natural resources or enter
18 into a pooling or unitization agreement.
19 (9) Abandon property when it is valueless or so
20 encumbered, or in a such condition, that it is of no benefit
21 to the estate.
22 (10) Vote, or refrain from voting, stocks or other
23 securities in person or by general or limited proxy.
24 (11) Pay calls, assessments, and other sums chargeable
25 or accruing against, or on account of, securities, unless
26 barred by the provisions relating to claims.
27 (12) Hold property in the name of a nominee or in
28 other form without disclosure of the interest of the estate,
29 but the personal representative is liable for any act of the
30 nominee in connection with the property so held.
31 (13) Insure the assets of the estate against damage
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1 or, loss, and liability and insure against personal and
2 fiduciary liability himself or herself against liability to
3 third persons.
4 (14) Borrow money, with or without security, to be
5 repaid from the estate assets or otherwise, other than real
6 property, and advance money for the protection of the estate.
7 (15) Extend, renew, or in any manner modify any
8 obligation owing to the estate. If the personal representative
9 holds a mortgage, security interest, or other lien upon
10 property of another person, he or she may accept a conveyance
11 or transfer of encumbered assets from the owner in
12 satisfaction of the indebtedness secured by its lien instead
13 of foreclosure.
14 (16) Pay taxes, assessments, and other expenses
15 incident to the administration of the estate.
16 (17) Sell or exercise stock subscription or conversion
17 rights or consent, directly or through a committee or other
18 agent, to the reorganization, consolidation, merger,
19 dissolution, or liquidation of a corporation or other business
20 enterprise.
21 (18) Allocate items of income or expense to either
22 estate income or principal, as permitted or provided by law.
23 (19) Employ persons, including, but not limited to,
24 attorneys, accountants, auditors, appraisers, investment
25 advisers, and others, even if they are one and the same as the
26 personal representative or are associated with the personal
27 representative, to advise or assist the personal
28 representative in the performance of his or her administrative
29 duties; act upon the recommendations of those such employed
30 persons without independent investigation; and, instead of
31 acting personally, employ one or more agents to perform any
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1 act of administration, whether or not discretionary. Any fees
2 and compensation paid to a any such person who is the same as,
3 associated with, or employed by, the personal representative
4 shall be taken into consideration in determining the personal
5 representative's compensation.
6 (20) Prosecute or defend claims or proceedings in any
7 jurisdiction for the protection of the estate and of the
8 personal representative in the performance of his or her
9 duties.
10 (21) Sell, mortgage, or lease any personal property of
11 the estate or any interest in it for cash, credit, or for part
12 cash or part credit, and with or without security for the
13 unpaid balance.
14 (22) Continue any unincorporated business or venture
15 in which the decedent was engaged at the time of his or her
16 death:
17 (a) In the same business form for a period of not more
18 than 4 months from the date of his or her appointment, if
19 continuation is a reasonable means of preserving the value of
20 the business, including good will.
21 (b) In the same business form for any additional
22 period of time that may be approved by court order of court.
23 (23) Provide for exoneration of the personal
24 representative from personal liability in any contract entered
25 into on behalf of the estate.
26 (24) Satisfy and settle claims and distribute the
27 estate as provided in this code.
28 (25) Enter into agreements with the proper officer or
29 department head, commissioner, or agent of any department of
30 the government of the United States, waiving the statute of
31 limitations concerning the assessment and collection of any
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1 federal tax or any deficiency in a federal tax.
2 (26) Make partial part distribution to the
3 beneficiaries of any part of the estate not necessary to
4 satisfy claims, expenses of administration, taxes, family
5 allowance, exempt property, and an elective share, in
6 accordance with the decedent's will or as authorized by
7 operation of law.
8 (27) Execute any instruments necessary in the exercise
9 of the personal representative's powers.
10 Section 136. Section 733.6121, Florida Statutes, is
11 amended to read:
12 733.6121 Powers of personal representatives conferred
13 by this part in relation to environmental or human health laws
14 affecting property subject to administration or to property
15 subject to administration contaminated with hazardous or toxic
16 substances; liability.--
17 (1) Except as otherwise provided by the will or by
18 court order of court, and subject to s. 733.805, the personal
19 representative has, without court authorization, the powers
20 specified in subsection (2).
21 (2) A personal representative has the power, acting
22 reasonably and for the benefit of the interested persons
23 parties:
24 (a) To inspect or investigate, or cause to be
25 inspected or investigated, property subject to administration,
26 including interests in sole proprietorships, partnerships, or
27 corporations and any assets owned by any such a business
28 entity for the purpose of determining compliance with an
29 environmental law affecting that property or to respond to an
30 actual or threatened violation of an environmental law
31 affecting that property;
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1 (b) To take, on behalf of the estate, any action
2 necessary to prevent, abate, or otherwise remedy an actual or
3 potential violation of an environmental law affecting property
4 subject to administration, either before or after initiation
5 of an enforcement action by a governmental body;
6 (c) To settle or compromise at any time any claim
7 against the estate or the personal representative that may be
8 asserted by a governmental body or private party which
9 involves the alleged violation of an environmental law
10 affecting property subject to administration over which the
11 personal representative has responsibility;
12 (d) To disclaim any power granted by any document,
13 statute, or rule of law which, in the sole judgment of the
14 personal representative, could cause the personal
15 representative to incur personal liability, or the estate to
16 incur liability, under any environmental law;
17 (e) To decline to serve as a personal representative,
18 or having undertaken to serve as a personal representative, to
19 resign at any time, if the personal representative believes
20 that there is or could be a conflict of interest in his or her
21 fiduciary capacity and in his or her individual capacity
22 because of potential claims or liabilities that could be
23 asserted against it on behalf of the estate by reason of the
24 type or condition of the assets held; or
25 (f) To charge against the assets of the estate the
26 cost of any inspection, investigation, review, abatement,
27 response, cleanup, or remedial action considered reasonable by
28 the personal representative that this section authorizes the
29 personal representative to take; and, in the event of the
30 closing or termination of the estate or the transfer of the
31 estate property to another personal representative, to hold
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1 moneys sufficient to cover the cost of cleaning up any known
2 environmental problem.
3 (3) A personal representative is not personally liable
4 to any beneficiary or any other party for a decrease in value
5 of assets in an estate by reason of the personal
6 representative's compliance or efforts to comply with an
7 environmental law, specifically including any reporting
8 requirement under that law.
9 (4) A personal representative who acquires ownership
10 or control of a vessel or other property without having owned,
11 operated, or materially participated in the management of that
12 vessel or property before assuming ownership or control as
13 personal representative is not considered an owner or operator
14 for purposes of liability under chapter 376, chapter 403, or
15 any other environmental law. A personal representative who
16 willfully, knowingly, or recklessly causes or exacerbates a
17 release or threatened release of a hazardous substance is
18 personally liable for the cost of the response, to the extent
19 that the release or threatened release is attributable to the
20 personal representative's activities. This subsection does
21 not preclude the filing of claims against the assets that
22 constitute the estate held by the personal representative or
23 the filing of actions against the personal representative as
24 representative of the estate in his or her representative
25 capacity. In any such an action, an award or judgment against
26 the personal representative must be satisfied only from the
27 assets of the estate.
28 (5) Neither the acceptance by the personal
29 representative of the property or a failure by the personal
30 representative to inspect or investigate the property creates
31 any inference of as to whether there is liability under an
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1 environmental law with respect to that property.
2 (6) For the purposes of this section, the term
3 "environmental law" means a federal, state, or local law,
4 rule, regulation, or ordinance that relates to protection of
5 the environment or human health, and the term "hazardous
6 substance" means a substance, material, or waste defined as
7 hazardous or toxic, or any contaminant, pollutant, or
8 constituent thereof, or otherwise regulated by an
9 environmental law.
10 (7) This section applies to any estate admitted to
11 probate on or after July 1, 1995.
12 Section 137. Section 733.613, Florida Statutes, is
13 amended to read:
14 733.613 Personal representative's right to sell real
15 property.--
16 (1) When a personal representative of an a decedent
17 dying intestate estate, or whose testator has not conferred
18 upon him or her a power of sale or whose testator has granted
19 a power of sale but the his or her power is so limited by the
20 will or by operation of law that it cannot be conveniently
21 exercised, shall consider that it is for the best interest of
22 the estate and of those interested in it that real property be
23 sold, the personal representative may sell it at public or
24 private sale. No title shall pass until the sale is
25 authorized or confirmed by the court authorizes or confirms
26 the sale. Petition for authorization or confirmation of sale
27 shall set forth the reasons for the sale, a description of the
28 property sold or to be sold, and the price and terms of the
29 sale. Except when interested persons have joined in the
30 petition for sale of real property or have consented to the
31 sale, notice of the petition shall be given. No bona fide
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1 purchaser shall be required to examine any proceedings before
2 the order of sale.
3 (2) When a decedent's will confers specific power to
4 sell or mortgage real property or a general power to sell any
5 asset of the estate, the personal representative may sell,
6 mortgage, or lease, without authorization or confirmation of
7 court, any real property of the estate or any interest therein
8 for cash or credit, or for part cash and part credit, and with
9 or without security for unpaid balances. The sale, mortgage,
10 or lease need not be justified by a showing of necessity, and
11 the sale pursuant to power of sale shall be valid.
12 (3) In a sale or mortgage which occurs under a
13 specific power to sell or mortgage real property, or under a
14 court order authorizing or confirming that act, the purchaser
15 or lender takes title free of claims of creditors of the
16 estate and entitlements of estate beneficiaries, except
17 existing mortgages or other liens against real property are
18 not affected.
19 Section 138. Section 733.614, Florida Statutes, is
20 amended to read:
21 733.614 Powers and duties of successor personal
22 representative.--A successor personal representative has the
23 same power and duty as the original personal representative to
24 complete the administration and distribution of the estate as
25 expeditiously as possible, but he or she shall not exercise
26 any power made personal to the personal representative named
27 in the will without court approval.
28 Section 139. Section 733.615, Florida Statutes, is
29 amended to read:
30 733.615 Joint personal representatives; when joint
31 action required.--
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1 (1) If two or more persons are appointed joint
2 personal representatives, and unless the will provides
3 otherwise, the concurrence of all joint personal
4 representatives appointed pursuant to a will or codicil
5 executed prior to October 1, 1987, or appointed to administer
6 an intestate estate of a decedent who died prior to October 1,
7 1987, or of a majority of joint personal representatives
8 appointed pursuant to a will or codicil executed on or after
9 October 1, 1987, or appointed to administer an the intestate
10 estate of a decedent dying on or after October 1, 1987, is
11 required on all acts connected with the administration and
12 distribution of the estate. This restriction does not apply
13 when any joint personal representative receives and receipts
14 for property due the estate, when the concurrence required
15 under this subsection cannot readily be obtained in the time
16 reasonably available for emergency action necessary to
17 preserve the estate, or when a joint personal representative
18 has been delegated to act for the others.
19 (2) Where action by a majority of the joint personal
20 representatives appointed is authorized, a joint personal
21 representative who has not joined in exercising a power is not
22 liable to the beneficiaries or to others for the consequences
23 of the exercise, and a dissenting joint personal
24 representative is not liable for the consequences of an action
25 act in which the dissenting personal representative he or she
26 joins at the direction of the majority of the joint personal
27 representatives, if the dissent is he or she expressed his or
28 her dissent in writing to the other any of his or her joint
29 personal representatives at or before the time of the action
30 joinder.
31 (3) A person dealing with a joint personal
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1 representative without actual knowledge that joint personal
2 representatives have been appointed or if advised by a the
3 joint personal representative with whom he or she deals that
4 the joint personal representative has authority to act alone
5 for any of the reasons mentioned in subsection (1) is as fully
6 protected in dealing with that joint personal representative
7 as if that joint personal representative possessed and
8 properly exercised the power he or she purports to exercise.
9 Section 140. Section 733.616, Florida Statutes, is
10 amended to read:
11 733.616 Powers of surviving personal
12 representatives.--Unless otherwise provided by the terms of
13 the will or a court order otherwise provide, every power
14 exercisable by joint personal representatives may be exercised
15 by the one or more remaining after the appointment of one or
16 more is terminated., and If one or more, but not all,
17 nominated as joint personal representatives are not appointed,
18 those appointed may exercise all the powers granted to those
19 nominated incident to the office.
20 Section 141. Section 733.617, Florida Statutes, is
21 amended to read:
22 733.617 Compensation of personal representative.--
23 (1) A personal representative shall be entitled to a
24 commission payable from the estate assets without court order
25 as compensation for ordinary services. The commission shall
26 be based on the compensable value of the estate, which is the
27 inventory value of the probate estate assets and the income
28 earned by the estate during administration As compensation for
29 its ordinary services, a personal representative shall be
30 entitled, without order of court unless otherwise stated, to a
31 commission payable from the estate assets. Such commission
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1 shall be based upon the probate estate's value as determined
2 finally for probate inventory purposes and as accounted for by
3 the personal representative, which value shall include all
4 property, real or personal, tangible or intangible, and all
5 income earned thereon.
6 (2) A commission computed on the compensable value of
7 the estate is presumed to be reasonable compensation for a
8 personal representative in formal administration Upon the
9 probate estate's value as defined in subsection (1), such
10 commission shall be computed as follows:
11 (a) At the rate of 3 percent for the first $1 million.
12 (b) At the rate of 2.5 percent for all above $1
13 million and not exceeding $5 million.
14 (c) At the rate of 2 percent for all above $5 million
15 and not exceeding $10 million.
16 (d) At the rate of 1.5 percent for all above $10
17 million.
18 (3) In addition to the previously described aforesaid
19 commission, a personal representative shall be allowed such
20 further compensation as is the court may deem just and
21 reasonable for any extraordinary services including, but not
22 limited to:
23 (a) The sale of real or personal property.
24 (b) The conduct of litigation on behalf of or against
25 the estate.
26 (c) Involvement in proceedings for the adjustment or
27 payment of any taxes.
28 (d) The carrying on of the decedent's business.
29 (e) Dealing with protected homestead.
30 (f)(e) Any other special services which may be
31 necessary for the personal representative to perform.
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1 (4) If the a decedent's will provides that a personal
2 representative's compensation shall be based upon specific
3 criteria, other than a general reference to commissions
4 allowed by law or words or similar import, including, but not
5 limited to, rates, amounts, commissions, or reference to the
6 personal representative's regularly published schedule of fees
7 in effect at the decedent's date of death, or words of similar
8 import, then a personal representative shall be entitled to
9 compensation in accordance with that such provision. However,
10 except for such references in the a decedent's will to the
11 personal representative's regularly published schedule of fees
12 in effect at the decedent's date of death, or words of similar
13 import, if there is no written contract with the decedent
14 regarding compensation, a personal representative may renounce
15 the provisions contained in the will and be entitled to
16 compensation under this section hereunder. A personal
17 representative may also renounce the its right to all or any
18 part of the compensation.
19 (5) If the probate estate's compensable value as
20 defined in subsection (1) is $100,000 or more, and there are
21 two representatives, each personal representative is entitled
22 to the full commission allowed to a sole personal
23 representative. If there are more than two personal
24 representatives and the probate estate's compensable value is
25 more than $100,000 or more, the compensation to which two
26 would be entitled must be apportioned among the personal
27 representatives. The basis for such apportionment shall be
28 one full commission allowed to the personal representative who
29 has possession of and primary responsibility for
30 administration of the assets and one full commission among the
31 remaining personal representatives according to the services
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1 rendered by each of them respectively. If the probate
2 estate's compensable value is less than $100,000 and there is
3 more than one personal representative, then one full
4 commission allowed herein to a sole personal representative
5 must be apportioned among the personal representatives
6 according to the services rendered by each of them
7 respectively.
8 (6) If the personal representative is a member of The
9 Florida Bar and has rendered legal services in connection with
10 the administration of the estate, then in addition to a fee as
11 personal representative, there also shall be allowed a fee for
12 the legal services rendered.
13 (7) Upon petition of any interested person, the court
14 may increase or decrease the compensation for ordinary
15 services of the personal representative or award compensation
16 for extraordinary services if the facts and circumstances of
17 the particular administration warrant. In determining
18 reasonable compensation, the court shall consider all of the
19 following factors, giving weight to each as it determines to
20 be appropriate The compensation for a personal representative
21 as set forth in subsections (2) and (3) may, upon petition of
22 any interested person, be increased or decreased by the court.
23 In determining whether to increase or decrease the
24 compensation for ordinary services, the court must consider
25 each of the following factors, giving each such weight as it
26 determines to be appropriate:
27 (a) The promptness, efficiency, and skill with which
28 the administration was handled by the personal representative;
29 (b) The responsibilities assumed by and the potential
30 liabilities of the personal representative;
31 (c) The nature and value of the assets that are
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1 affected by the decedent's death;
2 (d) The benefits or detriments resulting to the estate
3 or interested persons its beneficiaries from the personal
4 representative's services;
5 (e) The complexity or simplicity of the administration
6 and the novelty novelties of the issues presented;
7 (f) The personal representative's participation in tax
8 planning for the estate and the estate's beneficiaries and in
9 tax return preparation, review, or approval;
10 (g) The nature of the probate, nonprobate, and exempt
11 assets,; the expenses of administration,; the liabilities of
12 the decedent,; and the compensation paid to other
13 professionals and fiduciaries;
14 (h) Any delay in payment of the compensation after the
15 services were furnished; and
16 (i) Any other relevant factors.
17 Section 142. Section 733.6171, Florida Statutes, is
18 amended to read:
19 733.6171 Compensation of attorney for the personal
20 representative.--
21 (1) Attorneys for personal representatives shall be
22 entitled to reasonable compensation for their services payable
23 from the estate assets of the estate without court order.
24 (2) The attorney, the personal representative, and
25 persons bearing the impact of the compensation may agree to
26 compensation determined in a different manner than provided in
27 this section. Compensation may also be determined in a
28 different manner than provided in this section if the manner
29 is disclosed to the parties bearing the impact of the
30 compensation and if no objection is made as provided for in
31 the Florida Probate Rules in the petition for discharge or
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1 final accounting and there is no objection filed pursuant to
2 s. 733.901.
3 (3) Compensation provided in the following schedule
4 for ordinary services of attorneys in formal estate
5 administration is presumed to be reasonable if based on the
6 compensable upon the inventory value of the estate, which is
7 the inventory value of the probate estate assets and the
8 income earned by the estate during the administration as
9 provided in the following schedule is presumed to be
10 reasonable compensation for attorneys in formal estate
11 administration:
12 (a) One thousand five hundred dollars for estates
13 having a value of $40,000 or less.
14 (b) An additional $750 for estates having a value of
15 more than $40,000 and not exceeding $70,000.
16 (c) An additional $750 for estates having a value of
17 more than $70,000 and not exceeding $100,000.
18 (d) For estates having a value in excess of $100,000,
19 at the rate of 3 percent on the next $900,000.
20 (e) At the rate of 2.5 percent for all above $1
21 million and not exceeding $3 million.
22 (f) At the rate of 2 percent for all above $3 million
23 and not exceeding $5 million.
24 (g) At the rate of 1.5 percent for all above $5
25 million and not exceeding $10 million.
26 (h) At the rate of 1 percent for all above $10
27 million.
28 (4) In addition to the attorney's fees for ordinary
29 services, the attorney for the personal representative shall
30 be allowed further reasonable compensation for any
31 extraordinary service. What is an extraordinary service may
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1 vary depending on many factors, including the size of the
2 estate. Extraordinary services may include, but are not
3 limited to:
4 (a) Involvement in a will contest, will construction,
5 a proceeding for determination of beneficiaries, a contested
6 claim, elective share proceeding, apportionment of estate
7 taxes, or any other adversarial proceeding or litigation by or
8 against the estate.
9 (b) Representation of the personal representative in
10 audit or any proceeding for adjustment, determination, or
11 collection of any taxes.
12 (c) Tax advice on postmortem tax planning, including,
13 but not limited to, disclaimer, renunciation of fiduciary
14 commission, alternate valuation date, allocation of
15 administrative expenses between tax returns, the QTIP or
16 reverse QTIP election, allocation of GST exemption,
17 qualification for Internal Revenue Code ss. 6166 and 303
18 privileges, deduction of last illness expenses, fiscal year
19 planning, distribution planning, asset basis considerations,
20 handling income or deductions in respect of a decedent,
21 valuation discounts, special use and other valuation, handling
22 employee benefit or retirement proceeds, prompt assessment
23 request, or request for release of personal liability for
24 payment of tax.
25 (d) Review of estate tax return and preparation or
26 review of other tax returns required to be filed by the
27 personal representative.
28 (e) Preparation of the estate's federal estate tax
29 return. If this return is prepared by the attorney, a fee of
30 one-half of 1 percent up to a value of $10 million and
31 one-fourth of 1 percent on the value in excess of $10 million
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1 of the gross estate as finally determined for federal estate
2 tax purposes, is presumed to be reasonable compensation for
3 the attorney for this service. These fees shall include
4 services for routine audit of the return, not beyond the
5 examining agent level, if required.
6 (f) Purchase, sale, lease, or encumbrance of real
7 property by the personal representative or involvement in
8 zoning, land use, environmental, or other similar matters.
9 (g) Legal advice regarding carrying on of the
10 decedent's business or conducting other commercial activity by
11 the personal representative.
12 (h) Legal advice regarding claims for damage to the
13 environment or related procedures.
14 (i) Legal advice regarding homestead status of real
15 property or proceedings involving that status and services
16 related to protected homestead.
17 (j) Involvement in fiduciary, employee, or attorney
18 compensation disputes.
19 (k) Proceedings involving ancillary administration of
20 assets not subject to administration in this state.
21 (5) Upon petition of any interested person, the court
22 may increase or decrease the compensation for ordinary
23 services of the attorney or award compensation for
24 extraordinary services if the facts and circumstances of the
25 particular administration warrant. In determining reasonable
26 compensation, the court shall consider all of the following
27 factors, giving such weight to each as it determines may
28 determine to be appropriate:
29 (a) The promptness, efficiency, and skill with which
30 the administration was handled by the attorney.
31 (b) The responsibilities assumed by, and the potential
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1 liabilities of, the attorney.
2 (c) The nature and value of the assets that are
3 affected by the decedent's death.
4 (d) The benefits or detriments resulting to the estate
5 or interested persons its beneficiaries from the attorney's
6 services.
7 (e) The complexity or simplicity of the administration
8 and the novelty of issues presented.
9 (f) The attorney's participation in tax planning for
10 the estate and the estate's beneficiaries and tax return
11 preparation, or review, or and approval.
12 (g) The nature of the probate, nonprobate, and exempt
13 assets, the expenses of administration, the and liabilities of
14 the decedent, and the compensation paid to other professionals
15 and fiduciaries.
16 (h) Any delay in payment of the compensation after the
17 services were furnished.
18 (i) Any other relevant factors.
19 (6) The court may determine reasonable attorney's
20 compensation without receiving expert testimony. Any party
21 may offer expert testimony after notice to interested persons.
22 If expert testimony is offered, an expert witness fee may be
23 awarded by the court and paid from the assets of the estate.
24 The court may, in its discretion, direct from what part of the
25 estate it shall be paid.
26 (6)(7) If a separate written agreement regarding
27 compensation exists between the attorney and the decedent, the
28 attorney shall furnish a copy to the personal representative
29 prior to commencement of employment, and, if employed, shall
30 promptly file and serve a copy on all interested persons.
31 Neither a separate agreement nor a provision in the will
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1 suggesting or directing that the personal representative to
2 retain a specific attorney will obligate the personal
3 representative to employ the attorney or obligate the attorney
4 to accept the representation, but if the attorney who is a
5 party to the agreement or who drafted the will is employed,
6 the compensation paid shall not exceed the compensation
7 provided in the agreement or in the will.
8 (8) Court proceedings to determine compensation, if
9 required, are a part of the estate administration process, and
10 the costs, including fees for the personal representative's
11 attorney, shall be determined by the court and paid from the
12 assets of the estate unless the court finds the request for
13 attorney's fees to be substantially unreasonable. The court
14 shall direct from which part of the estate they shall be paid.
15 (9) The amount and manner of determining compensation
16 for attorneys for personal representatives must be disclosed
17 in the final accounting, unless the disclosure is waived in
18 writing signed by the parties bearing the impact of the
19 compensation and filed with the court. No such waiver shall
20 be valid unless it contains language declaring that the
21 waiving party has actual knowledge of the amount and manner of
22 determining such compensation and, in addition, expressly
23 acknowledging either one of the following two elements:
24 (a) That the waiving party has agreed to the amount
25 and manner of determining such compensation and is waiving any
26 objections to payment of such compensation; or
27 (b) That the waiving party has the right under
28 subsection (5) to petition the court to decrease such
29 compensation and is waiving that right.
30
31 The requirements of this subsection shall not apply if the
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1 full amount of such compensation has previously been
2 determined by order of the court after notice. A waiver of
3 the final accounting shall not be effective if it does not
4 meet the requirements of this subsection.
5 (10) This section shall apply to estates in which an
6 order of discharge has not been entered prior to its effective
7 date but not to those estates in which attorney's fees have
8 previously been determined by order of court after notice.
9 Section 143. Section 733.6175, Florida Statutes, is
10 amended to read:
11 733.6175 Proceedings for review of employment of
12 agents and compensation of personal representatives and
13 employees of estate.--
14 (1) The court may review the propriety of the
15 employment of any person employed by the personal
16 representative and the reasonableness of any compensation paid
17 to that person or to the personal representative.
18 (2) Court proceedings to determine reasonable
19 compensation of the personal representative or any person
20 employed by the personal representative, if required, are a
21 part of the estate administration process, and the costs,
22 including attorneys' fees, of the person assuming the burden
23 of proof of propriety of the employment and reasonableness of
24 the compensation shall be determined by the court and paid
25 from the assets of the estate unless the court finds the
26 requested compensation to be substantially unreasonable. The
27 court shall direct from which part of the estate the
28 compensation shall be paid.
29 (3) After notice to all affected interested persons
30 and upon petition of an interested person bearing all or part
31 of the impact of the payment of compensation to the personal
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1 representative or any person employed by him or her, the
2 propriety of such employment and the reasonableness of such
3 compensation or payment may be reviewed by the court. The
4 burden of proof of propriety of the such employment and the
5 reasonableness of the compensation shall be upon the personal
6 representative and the person employed by him or her. Any
7 person who is determined to have received excessive
8 compensation from an estate for services rendered may be
9 ordered to make appropriate refunds.
10 (4) The court may determine reasonable compensation
11 for the personal representative or any person employed by the
12 personal representative without receiving expert testimony.
13 Any party may offer expert testimony after notice to
14 interested persons. If expert testimony is offered, a
15 reasonable expert witness fee shall be awarded by the court
16 and paid from the assets of the estate. The court shall direct
17 from what part of the estate the fee shall be paid.
18 Section 144. Section 733.619, Florida Statutes, is
19 amended to read:
20 733.619 Individual liability of personal
21 representative.--
22 (1) Unless otherwise provided in the contract, a
23 personal representative is not individually liable on a
24 contract, except a contract for attorney's fee, properly
25 entered into as in his or her fiduciary capacity in the
26 administration of the estate unless the personal
27 representative fails to reveal that his or her representative
28 capacity and identify the estate in the contract.
29 (2) A personal representative is individually liable
30 for obligations arising from ownership or control of the
31 estate or for torts committed in the course of administration
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1 of the estate only if he or she is personally at fault.
2 (3) Claims based on contracts, except a contract for
3 attorney's fee, entered into by a personal representative as a
4 fiduciary in his or her fiduciary capacity, on obligations
5 arising from ownership or control of the estate, or on torts
6 committed in the course of estate administration, may be
7 asserted against the estate by proceeding against the personal
8 representative in that his or her fiduciary capacity, whether
9 or not the personal representative is individually liable
10 therefor.
11 (4) Issues of liability as between the estate and the
12 personal representative individually may be determined in a
13 proceeding for accounting, surcharge, or indemnification, or
14 other appropriate proceeding.
15 Section 145. Section 733.701, Florida Statutes, is
16 amended to read:
17 733.701 Notifying creditors.--Unless creditors' claims
18 are otherwise barred by s. 733.710 the proceedings are under
19 chapter 734 or chapter 735, every personal representative
20 shall cause notice to creditors of administration to be
21 published and served under s. 733.2121 733.212.
22 Section 146. Section 733.702, Florida Statutes, is
23 amended to read:
24 733.702 Limitations on presentation of claims.--
25 (1) If not barred by s. 733.710, no claim or demand
26 against the decedent's estate that arose before the death of
27 the decedent, including claims of the state and any of its
28 subdivisions, even if the claims are unmatured, contingent,
29 whether due or not, direct or contingent, or liquidated or
30 unliquidated; no claim for funeral or burial expenses; no
31 claim for personal property in the possession of the personal
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1 representative; and no claim for damages, including, but not
2 limited to, an action founded on fraud or another wrongful act
3 or omission of the decedent, is binding on the estate, on the
4 personal representative, or on any beneficiary unless filed in
5 the probate proceeding within the later of 3 months after the
6 time of the first publication of the notice to creditors of
7 administration or, as to any creditor required to be served
8 with a copy of the notice to creditors of administration, 30
9 days after the date of service of such copy of the notice on
10 the creditor, even though the personal representative has
11 recognized the claim or demand by paying a part of it or
12 interest on it or otherwise. The personal representative may
13 settle in full any claim without the necessity of the claim
14 being filed when the settlement has been approved by the
15 interested persons beneficiaries adversely affected according
16 to the priorities provided in this code and when the
17 settlement is made within the statutory time for filing
18 claims; or, within 3 months after the first publication of the
19 notice of administration, he or she may file a proof of claim
20 of all claims he or she has paid or intends to pay.
21 (2) No cause of action heretofore or hereafter
22 accruing, including, but not limited to, an action founded
23 upon fraud or other wrongful act or omission, shall survive
24 the death of the person against whom the claim may be made,
25 whether or not an action is pending at the death of the person
26 or not, unless a the claim is filed within the time periods
27 set forth in this part.
28 (3) Any claim not timely filed as provided in this
29 section is barred even though no objection to the claim is
30 filed on the grounds of timeliness or otherwise unless the
31 court extends the time in which the claim may be filed. Such
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1 An extension may be granted only upon grounds of fraud,
2 estoppel, or insufficient notice of the claims period. No
3 independent action or declaratory action may be brought upon a
4 claim which was not timely filed unless such an extension has
5 been granted by the court. If the personal representative or
6 any other interested person serves on the creditor a notice to
7 file a petition for an extension or be forever barred, the
8 creditor shall be limited to a period of 30 days from the date
9 of service of the notice in which to file a petition for
10 extension.
11 (4) Nothing in this section affects or prevents:
12 (a) A proceeding to enforce any mortgage, security
13 interest, or other lien on property of the decedent.
14 (b) To the limits of casualty insurance protection
15 only, any proceeding to establish liability that of the
16 decedent or the personal representative for which he or she is
17 protected by the casualty insurance.
18 (c) The filing of a claim by the Department of Revenue
19 subsequent to the expiration of the time for filing claims
20 provided in subsection (1), provided it does so file within 30
21 days after the service of the inventory by the personal
22 representative on the department or, in the event an amended
23 or supplementary inventory has been prepared, within 30 days
24 after the service of the amended or supplementary inventory by
25 the personal representative on the department.
26 (c)(d) The filing of a cross-claim or counterclaim
27 against the estate in an action instituted by the estate;
28 however, no recovery on such a cross-claim or counterclaim
29 shall exceed the estate's recovery in that such an action.
30 (5) The Department of Revenue may file a claim against
31 the estate of a decedent for taxes due under chapter 199 after
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1 the expiration of the time for filing claims provided in
2 subsection (1), if the department files its claim within 30
3 days after the service of the inventory. Upon filing of the
4 estate tax return with the department as provided in s.
5 198.13, or to the extent the inventory or estate tax return is
6 amended or supplemented, the department has the right to file
7 a claim or to amend its previously filed claim within 30 days
8 after service of the estate tax return, or an amended or
9 supplemented inventory or filing of an amended or supplemental
10 estate tax return, as to the additional information disclosed.
11 (6)(5) Nothing in this section shall extend the
12 limitations period set forth in s. 733.710.
13 Section 147. Subsection (2) of section 733.703,
14 Florida Statutes, is amended to read:
15 733.703 Form and manner of presenting claim.--
16 (2) Within the time allowed by s. 733.702, the
17 personal representative may file a proof of claim of all
18 claims he or she has paid or intends to pay. A claimant whose
19 claim is listed in a personal representative's proof of claim
20 filed within 3 months after the first publication of the
21 notice of administration shall be deemed to have filed a
22 statement of the claim listed. Except as provided otherwise
23 in this part, the claim shall be treated for all other
24 purposes as if it had been filed by the claimant had filed it.
25 Section 148. Section 733.704, Florida Statutes, is
26 amended to read:
27 733.704 Amendment of claims.--If a bona fide attempt
28 to file a claim is made by a creditor but the claim is
29 defective as to form, the court may permit the amendment of
30 the claim at any time.
31 Section 149. Section 733.705, Florida Statutes, is
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1 amended to read:
2 733.705 Payment of and objection to claims.--
3 (1) The personal representative shall pay all claims
4 within 1 year from the date of first publication of notice to
5 creditors of administration, provided that the time shall be
6 extended with respect to claims in litigation, unmatured
7 claims, and contingent claims for the period necessary to
8 dispose of those such claims pursuant to subsections (4), (5),
9 (6), and (7), and (8). The court may extend the time for
10 payment of any claim upon a showing of good cause. No
11 personal representative shall be compelled to pay the debts of
12 the decedent until after the expiration of 5 months from the
13 first publication of notice to creditors of administration.
14 If any person brings an action against a personal
15 representative within the 5 months on any claim to which the
16 personal representative has not filed an no objection, the
17 plaintiff shall not receive any costs or attorneys' fees if he
18 or she prevails, nor shall the judgment change the class of
19 the claim for payment under this code.
20 (2) On or before the expiration of 4 months from the
21 first publication of notice to creditors of administration or
22 within 30 days from the timely filing or amendment of a claim,
23 whichever occurs later, a personal representative or other
24 interested person may file a written objection to a claim. An
25 objection to a claim shall contain a statement that the
26 claimant is limited to a period of 30 days from the date of
27 service of the objection within which to bring an action on
28 the claim as provided in subsection (4). The failure to
29 include such a statement in the objection shall not affect the
30 validity of the objection but may be considered as good cause
31 for extending the time for filing an action or proceeding
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1 after the objection is filed. If an objection is filed, the
2 person filing it shall serve a copy of the objection as
3 provided by the Florida Probate Rules by registered or
4 certified mail to the address of the claimant or the
5 claimant's attorney as shown on the claim or by delivery to
6 the claimant to whose claim the person objects or the
7 claimant's attorney of record, if any, not later than 10 days
8 after the objection has been filed, and also on the personal
9 representative if the objection is filed by any interested
10 person other than the personal representative. The failure to
11 serve a copy of the objection constitutes an abandonment of
12 the objection. For good cause, the court may extend the time
13 for filing or serving an objection to any claim or may extend
14 the time for serving the objection. The extension of time
15 shall be granted only after notice. Objection to a claim
16 constitutes an objection to an amendment of that claim unless
17 the objection is withdrawn.
18 (3) If the objection is filed by a person other than
19 the personal representative, the personal representative may
20 apply to the court for an order relieving him or her from the
21 obligation to defend the estate in an independent action or
22 for the appointment of the objector as administrator ad litem
23 to defend the action. Fees for the attorney for the
24 administrator ad litem may be awarded as provided in s.
25 733.106(3). If costs or attorney's fees are awarded from or
26 against the estate, the probate court may charge or apportion
27 that award as provided in s. 733.106(4).
28 (4)(3) An objection by an interested person to a
29 personal representative's proof of claim shall state the
30 particular item or items to which the interested person
31 objects and shall be filed and served as provided in
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1 subsection (2). Issues of liability as between the estate and
2 the personal representative individually for items paid by the
3 personal representative and thereafter listed in a personal
4 representative's proof of claim shall be determined in the
5 estate administration proceeding, in a proceeding for
6 accounting or, surcharge, or in another other appropriate
7 proceeding, whether or not an objection has been filed. If an
8 objection to an item listed as to be paid in a personal
9 representative's proof of claim is filed and served, and the
10 personal representative has not paid the item, the other
11 subsections of this section shall apply as if a claim for the
12 item had been filed by the claimant; but if the personal
13 representative has paid the claim after listing it as to be
14 paid, issues of liability as between the estate and the
15 personal representative individually shall be determined in
16 the manner provided for an item listed as paid.
17 (5)(4) The claimant is limited to a period of 30 days
18 from the date of service of an objection within which to bring
19 an independent action upon the claim, or a declaratory action
20 to establish the validity and amount of an unmatured claim
21 which is not yet due but which is certain to become due in the
22 future, or a declaratory action to establish the validity of a
23 contingent claim upon which no cause of action has accrued on
24 the date of service of an objection and that may or may not
25 become due in the future, unless an extension of this time is
26 agreed to by the personal representative in writing before it
27 expires. For good cause, the court may extend the time for
28 filing an action or proceeding after objection is filed. The
29 extension of time shall be granted only after notice. No
30 action or proceeding on the claim may shall be brought against
31 the personal representative after the time limited above, and
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1 the any such claim is thereafter forever barred without any
2 court order. If an objection is filed to the claim of any
3 creditor and an action is brought by the creditor brings an
4 action to establish the his or her claim, a judgment
5 establishing the claim shall give it no priority over claims
6 of the same class to which it belongs.
7 (6)(5) A claimant may bring an independent action or
8 declaratory action upon a claim which was not timely filed
9 pursuant to s. 733.702(1) only if the claimant has been
10 granted an extension of time to file the claim pursuant to s.
11 733.702(3).
12 (7)(6) If an unmatured claim has not become due before
13 the time for distribution of an estate, the personal
14 representative may prepay the full amount of principal plus
15 accrued interest due on the claim, without discount and
16 without penalty, regardless of any prohibition against
17 prepayment or provision for penalty in any instrument on which
18 the claim is founded. If the claim is not prepaid, no order
19 of discharge may be entered until the creditor and personal
20 representative have filed an agreement disposing of the claim,
21 or in the absence of an agreement until the court provides for
22 payment by one of the following methods:
23 (a) Requiring the personal representative to reserve
24 such assets as the court determines to be adequate to pay the
25 claim when it becomes due; in fixing the amount to be
26 reserved, the court may determine the value of any security or
27 collateral to which the creditor may resort for payment of the
28 claim and may direct the reservation, if necessary, of
29 sufficient assets to pay the claim or to pay the difference
30 between the value of any security or collateral and the amount
31 necessary to pay the claim. If the estate is insolvent, the
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1 court may direct a proportionate amount to be reserved. The
2 court shall direct that the amount reserved be retained by the
3 personal representative until the time that the claim becomes
4 due, and that so much of the reserved amount as is not used
5 for payment be distributed thereafter according to law;
6 (b) Requiring that the claim be adequately secured by
7 a mortgage, pledge, bond, trust, guaranty, or other security,
8 as may be determined by the court, the security to remain in
9 effect until the time that the claim becomes due, and that so
10 much of the security or collateral as is not needed for
11 payment be distributed thereafter according to law; or
12 (c) Making provisions such other provision for the
13 disposition or satisfaction of the claim as are is equitable,
14 and in a manner so as not to delay unreasonably the closing of
15 the estate.
16 (8)(7) If no cause of action has accrued on a
17 contingent claim before the time for distribution of an
18 estate, no order of discharge may be entered until the
19 creditor and the personal representative have filed an
20 agreement disposing of the claim or, in the absence of an such
21 agreement, until:
22 (a) The court determines that the claim is adequately
23 secured or that it has no value,
24 (b) Three months from the date on which a cause of
25 action accrues upon the claim, provided that no action on the
26 claim is then pending,
27 (c) Five years from the date of first publication of
28 notice to creditors of administration, or
29 (d) The court provides for payment of the claim upon
30 the happening of the contingency by one of the methods
31 described in paragraph (a), paragraph (b), or paragraph (c) of
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1 subsection (7) (6),
2
3 whichever occurs first. No action or proceeding on the claim
4 may be brought against the personal representative after the
5 time limited above, and the claim is barred without court
6 order. If an objection is filed to the claim of any creditor
7 and the creditor brings an action to establish the claim, a
8 judgment establishing the claim shall give it no priority over
9 claims of the same class to which it belongs No action or
10 proceeding may be brought against the personal representative
11 on the claim after the time limited above, and any such claim
12 shall thereafter be forever barred without order of court. If
13 an action is brought within the time limited above, a judgment
14 establishing the claim shall give it no priority over claims
15 of the same class to which it belongs.
16 (9)(8) No interest shall be paid by the personal
17 representative or allowed by the court on a claim until the
18 expiration of 5 calendar months from the first publication of
19 the notice of administration, unless the claim is founded on a
20 written obligation of the decedent providing for the payment
21 of interest. Interest shall be paid by the personal
22 representative on written obligations of the decedent
23 providing for the payment of interest. On all other claims,
24 interest shall be allowed and paid beginning 5 months from the
25 first publication of the notice to creditors of
26 administration.
27 (10)(9) The court may determine all issues concerning
28 claims or matters not requiring trial by jury.
29 (11)(10) An order for extension of time authorized
30 under this section may be entered only in the estate
31 administration proceeding.
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1 Section 150. Section 733.707, Florida Statutes, is
2 amended to read:
3 733.707 Order of payment of expenses and
4 obligations.--
5 (1) The personal representative shall pay the expenses
6 of the administration and obligations of the decedent's estate
7 in the following order:
8 (a) Class 1.--Costs, expenses of administration, and
9 compensation of personal representatives and their attorneys
10 attorneys' fees and attorneys fees awarded under s.
11 733.106(3).
12 (b) Class 2.--Reasonable funeral, interment, and grave
13 marker expenses, whether paid by a guardian under s.
14 744.441(16), the personal representative, or any other person,
15 not to exceed the aggregate of $6,000.
16 (c) Class 3.--Debts and taxes with preference under
17 federal law, and claims pursuant to ss. 409.9101 and 414.28.
18 (d) Class 4.--Reasonable and necessary medical and
19 hospital expenses of the last 60 days of the last illness of
20 the decedent, including compensation of persons attending the
21 decedent him or her.
22 (e) Class 5.--Family allowance.
23 (f) Class 6.--Arrearage from court-ordered child
24 support.
25 (g) Class 7.--Debts acquired after death by the
26 continuation of the decedent's business, in accordance with s.
27 733.612(22), but only to the extent of the assets of that
28 business.
29 (h) Class 8.--All other claims, including those
30 founded on judgments or decrees rendered against the decedent
31 during the decedent's lifetime, and any excess over the sums
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1 allowed in paragraphs (b) and (d).
2 (2) After paying any preceding class, if the estate is
3 insufficient to pay all of the next succeeding class, the
4 creditors of the latter class shall be paid ratably in
5 proportion to their respective claims.
6 (3) Any portion of a trust with respect to which a
7 decedent who is the grantor has at the decedent's death a
8 right of revocation, as defined in paragraph (e), either alone
9 or in conjunction with any other person, is liable for the
10 expenses of the administration and obligations of the
11 decedent's estate and enforceable claims of the decedent's
12 creditors to the extent the decedent's estate is insufficient
13 to pay them as provided in s. 733.607(2).
14 (a) For purposes of this subsection, any trusts
15 established as part of, and all payments from, either an
16 employee annuity described in s. 403 of the Internal Revenue
17 Code of 1986, as amended, an Individual Retirement Account, as
18 described in s. 408 of the Internal Revenue Code of 1986, as
19 amended, a Keogh (HR-10) Plan, or a retirement or other plan
20 established by a corporation which is qualified under s. 401
21 of the Internal Revenue Code of 1986, as amended, shall not be
22 considered a trust over which the decedent has a right of
23 revocation.
24 (b) For purposes of this subsection, any trust
25 described in s. 664 of the Internal Revenue Code of 1986, as
26 amended, shall not be considered a trust over which the
27 decedent has a right of revocation.
28 (c) This subsection shall not impair any rights an
29 individual has under a qualified domestic relations order as
30 that term is defined in s. 414(p) of the Internal Revenue Code
31 of 1986, as amended.
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1 (d) For purposes of this subsection, property held or
2 received by a trust to the extent that the property would not
3 have been subject to claims against the decedent's estate if
4 it had been paid directly to a trust created under the
5 decedent's will or other than to the decedent's estate, or
6 assets received from any trust other than a trust described in
7 this subsection, shall not be deemed assets of the trust
8 available to for the payment of the expenses of administration
9 of and enforceable claims against the decedent's estate.
10 (e) For purposes of this subsection, a "right of
11 revocation" is a power retained by the decedent, held in any
12 capacity, to:
13 1. Amend or revoke the trust and revest the principal
14 of the trust in the decedent; or
15 2. Withdraw or appoint the principal of the trust to
16 or for the decedent's benefit.
17 Section 151. Section 733.708, Florida Statutes, is
18 amended to read:
19 733.708 Compromise.--When a proposal is made to
20 compromise any claim, whether in suit or not, by or against
21 the estate of a decedent or to compromise any question
22 concerning the distribution of a decedent's estate, the court
23 may enter an order authorizing the compromise if satisfied
24 that the compromise will be for the best interest of the
25 interested persons beneficiaries. The order shall relieve the
26 personal representative of liability or responsibility for the
27 compromise. Claims against the estate may not be compromised
28 until after the time for filing objections to claims has
29 expired. Notice must be given to those who have filed
30 objection to the claim proposed to be compromised.
31 Section 152. Subsection (1) of section 733.710,
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1 Florida Statutes, is amended to read:
2 733.710 Limitations on claims against estates.--
3 (1) Notwithstanding any other provision of the code, 2
4 years after the death of a person, neither the decedent's
5 estate, the personal representative, (if any), nor the
6 beneficiaries shall be liable for any claim or cause of action
7 against the decedent, whether or not letters of administration
8 have been issued, except as provided in this section.
9 Section 153. Section 733.801, Florida Statutes, is
10 amended to read:
11 733.801 Delivery of devises and distributive shares.--
12 (1) No personal representative shall be required to
13 pay or deliver any devise or distributive share or to
14 surrender possession of any land to any beneficiary until the
15 expiration of 5 months from the granting of letters.
16 (2) Except as otherwise provided in the will, the
17 personal representative shall pay as an expense of
18 administration the reasonable expenses of storage, insurance,
19 packing, and delivery of tangible personal property to a
20 beneficiary.
21 Section 154. Subsections (1) and (2) of section
22 733.802, Florida Statutes, are amended to read:
23 733.802 Proceedings for compulsory payment of devises
24 or distributive interest.--
25 (1) Before final distribution, no personal
26 representative shall be compelled:
27 (a) To pay a devise in money before the final
28 settlement of the personal representative's his or her
29 accounts,
30 (b) To deliver specific personal property devised that
31 may have come into his or her hands, unless the personal
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1 property is exempt personal property,
2 (c) To pay all or any part of a distributive share in
3 the personal estate of a decedent, or
4 (d) To surrender land to any beneficiary,
5
6 unless the beneficiary establishes files a petition setting
7 forth the facts that entitle him or her to relief and stating
8 that the property will not be required for the payment of
9 debts, family allowance, estate and inheritance taxes, claims,
10 elective share of the surviving spouse, charges, or expenses
11 of administration or to provide for providing funds for
12 contribution or to enforce enforcing equalization in case of
13 advancements.
14 (2) An order directing the surrender of real property
15 or the delivery of personal property by the personal
16 representative to the beneficiary shall describe the property
17 to be surrendered or delivered. The order shall be conclusive
18 in favor of bona fide purchasers for value from the
19 beneficiary or distributee as against the personal
20 representative and all other persons claiming by, through,
21 under, or against the decedent or the decedent's estate.
22 Section 155. Section 733.803, Florida Statutes, is
23 amended to read:
24 733.803 Encumbered property; liability for
25 payment.--The specific devisee of any encumbered property
26 shall be entitled to have the encumbrance on devised property
27 paid at the expense of the residue of the estate only when the
28 will shows that such an intent. A general direction in the
29 will to pay debts does not show that such an intent.
30 Section 156. Section 733.805, Florida Statutes, is
31 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 proceeds were payable directly to the beneficiaries named in
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1 the trust.
2 (5) The death benefits so held in trust may be
3 commingled with any other assets that may properly come into
4 the trust.
5 (6) Nothing in this section shall affect the validity
6 of any designation of a beneficiary of proceeds previously
7 heretofore made that designates as beneficiary the trustee of
8 any trust established under a trust agreement or declaration
9 of trust or by will.
10 Section 159. Section 733.809, Florida Statutes, is
11 amended to read:
12 733.809 Right of retainer.--The amount of a
13 noncontingent indebtedness due from of a beneficiary to the
14 estate, if due, or its present value, if not due, may be
15 offset against that the beneficiary's interest. However, that,
16 but the beneficiary shall have has the benefit of any defense
17 that would be available to him or her in a direct proceeding
18 for recovery of the debt.
19 Section 160. Section 733.810, Florida Statutes, is
20 amended to read:
21 733.810 Distribution in kind; valuation.--
22 (1) Assets shall be distributed in kind unless:
23 (a) A general power of sale is conferred;
24 (b) A contrary intention is indicated by the will or
25 trust; or
26 (c) Disposition is made otherwise under the provisions
27 of this code. Unless a general power of sale is conferred or a
28 contrary intention is indicated by the will or unless assets
29 are otherwise disposed of under the provisions of this code,
30 the distributable assets of a decedent's estate shall be
31 distributed in kind through application of the following
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1 provisions:
2 (2)(a) Any pecuniary devise, family allowance, or
3 other pecuniary share of the estate or trust or devise payable
4 in money may be satisfied by value in kind if:
5 (a)1. The person entitled to the payment has not
6 demanded cash;
7 (b)2. The property is distributed in kind is valued at
8 fair market value as of the date of its distribution date; and
9 (c)3. No residuary devisee has requested that the
10 asset remain a part of the residuary residue of the estate.
11 (3)(b) When it is not practicable to distribute
12 undivided interests in a residuary asset property, the asset
13 may property shall be sold converted into cash for
14 distribution.
15 (4)(2) When the personal representative, trustee, or
16 other fiduciary under a will or trust instrument is required
17 to, or has an option, to, satisfy a pecuniary devise or
18 transfer in trust, to, or for the benefit of, the surviving
19 spouse, with an in-kind distribution assets of the estate or
20 trust in kind, at values as finally determined for federal
21 estate tax purposes, the personal representative, trustee, or
22 other fiduciary shall, unless the governing will or trust
23 instrument otherwise provides, satisfy the devise or transfer
24 in trust by distribution of assets, including cash, fairly
25 representative of the appreciated or depreciated value of all
26 property available for that distribution in satisfaction of
27 the devise or transfer in trust, taking into consideration any
28 gains and losses realized from a prior the sale, prior to
29 distribution of the marital interest, of any property not
30 devised specifically, generally, or demonstratively devised.
31 (5)(3) With the consent of all beneficiaries affected,
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1 A personal representative or a trustee is authorized to
2 distribute any distributable assets, non-pro rata among the
3 beneficiaries subject to the fiduciary's duty of impartiality
4 entitled thereto.
5 Section 161. Section 733.811, Florida Statutes, is
6 amended to read:
7 733.811 Distribution; right or title of
8 distributee.--If a distributee receives from a fiduciary an
9 instrument transferring assets in kind, payment in
10 distribution, or possession of specific property, the
11 distributee has succeeded to the estate's interest in the
12 assets as against all persons interested in the estate.
13 However, the fiduciary may recover the assets or their value
14 if the distribution was improper Proof that a distributee has
15 received an instrument transferring assets in kind or payment
16 in distribution or possession of specific property from a
17 personal representative is conclusive evidence that the
18 distributee has succeeded to the interest of the estate in the
19 distributed assets, as against all persons interested in the
20 estate, but the personal representative may recover the assets
21 or their value if the distribution was improper.
22 Section 162. Section 733.812, Florida Statutes, is
23 amended to read:
24 733.812 Improper distribution or payment; liability of
25 distributee or payee.--Unless the distribution or payment no
26 longer can be questioned because of adjudication, estoppel, or
27 limitations, A distributee of property improperly distributed
28 or paid or a claimant who was paid improperly must paid, if he
29 or she has the property, is liable to return the assets or
30 funds property improperly received, and the income from those
31 assets or interest on the funds its income since distribution
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1 or payment, unless the distribution or payment cannot be
2 questioned because of adjudication, estoppel, or limitations
3 to the personal representative or to the beneficiaries
4 entitled to it. If the distributee or claimant he or she does
5 not have the property, its then he or she is liable to return
6 the value of the property improperly received at the date of
7 disposition, and its income thereon, and gain received by the
8 distributee or claimant must be returned him or her.
9 Section 163. Section 733.813, Florida Statutes, is
10 amended to read:
11 733.813 Purchasers from distributees protected.--If
12 property distributed in kind, or a security interest in that
13 property therein, is acquired by a purchaser or lender for
14 value from a distributee who has received an instrument of
15 distribution or possession from the personal representative,
16 the purchaser or lender takes title free of any claims of the
17 estate and incurs no personal liability to the estate, whether
18 or not the distribution was proper. The To be protected under
19 this provision a purchaser or lender need not inquire whether
20 a personal representative acted properly in making the
21 distribution in kind.
22 Section 164. Section 733.814, Florida Statutes, is
23 amended to read:
24 733.814 Partition for purpose of distribution.--When
25 two or more beneficiaries heirs or devisees are entitled to
26 distribution of undivided interests in any property, the
27 personal representative or any beneficiary one or more of the
28 beneficiaries may petition the court before closing the estate
29 is closed to make partition. After formal notice to the
30 interested beneficiaries, the court shall partition the
31 property in the same manner as provided by law for civil
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1 actions of partition. The court may direct the personal
2 representative to sell any property that cannot be partitioned
3 without prejudice to the owners and that cannot be allotted
4 equitably and conveniently be allotted to any one party.
5 Section 165. Section 733.815, Florida Statutes, is
6 amended to read:
7 733.815 Private contracts agreements among interested
8 persons distributees.--Subject to the rights of creditors and
9 taxing authorities, competent interested persons may agree
10 among themselves to alter the interests, shares, or amounts to
11 which they are entitled under the will or under the laws of
12 intestacy in a written contract executed by them all who are
13 affected. The personal representative shall abide by the terms
14 of the contract agreement, subject to the personal
15 representative's his or her obligation to administer the
16 estate for the benefit of interested persons who are not
17 parties to the contract, and creditors, to pay all taxes and
18 costs of administration, and to carry out the responsibilities
19 of his or her office for the benefit of any beneficiaries of
20 the decedent who are not parties to the agreement. Personal
21 representatives are not required to see to the performance of
22 trusts if the trustee is another person who is willing to
23 accept the trust. Trustees of a testamentary trust are
24 interested persons beneficiaries for the purposes of this
25 section. Nothing in this section herein relieves trustees of
26 any duties owed to beneficiaries of trusts.
27 Section 166. Section 733.816, Florida Statutes, is
28 amended to read:
29 733.816 Disposition of unclaimed property held by
30 personal representatives.--
31 (1) In all cases in which there is unclaimed property
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1 in the hands of a personal representative that cannot be
2 distributed or paid because of the inability to find the
3 lawful owner because of inability to find him or her or
4 because no lawful owner is known or because the lawful owner
5 refuses to accept the property after a reasonable attempt to
6 distribute it and after notice to that lawful owner, the court
7 shall order the personal representative to sell the property
8 and deposit the proceeds and cash already in hand, after
9 retaining those amounts provided for in subsection (4), with
10 the clerk and receive a receipt, and the clerk shall deposit
11 the funds in the registry of the court to be disposed of as
12 follows:
13 (a) If the value of the funds is $500 or less, the
14 clerk shall post a notice for 30 days at the courthouse door
15 giving the amount involved, the name of the personal
16 representative, and the other pertinent information that will
17 put interested persons on notice.
18 (b) If the value of the funds is over $500, the clerk
19 shall publish the notice once a month for 2 consecutive months
20 in a newspaper of general circulation in the county.
21
22 After the expiration of 6 months from the posting or first
23 publication, the clerk shall deposit the funds with the State
24 Treasurer after deducting the clerk's his or her fees and the
25 costs of publication.
26 (2) Upon receipt of the funds, the State Treasurer
27 shall deposit them to the credit of the State School Fund, to
28 become a part of the school fund. All interest and all income
29 that may accrue from the money while so deposited shall belong
30 to the fund. The funds so deposited shall constitute and be a
31 permanent appropriation for payments by the State Treasurer in
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1 obedience to court orders entered as provided by subsection
2 (3).
3 (3) Within 10 years from the date of deposit with the
4 State Treasurer, on written petition to the court that
5 directed the deposit of the funds and informal notice to the
6 Department of Legal Affairs, and after proof of entitlement
7 his or her right to them, any person entitled to the funds
8 before or after payment to the State Treasurer and deposit as
9 provided by subsection (1) may obtain a court an order of
10 court directing the payment of the funds to that person him or
11 her. All funds deposited with the State Treasurer and not
12 claimed within 10 years from the date of deposit shall escheat
13 to the state for the benefit of the State School Fund.
14 (4) The personal representative depositing assets with
15 the clerk is permitted to retain from the funds in his or her
16 possession a sufficient amount to pay final costs of
17 administration chargeable to the assets, including fees
18 allowed pursuant to s. 733.617 accruing between the deposit of
19 the funds with the clerk of the court and the order of
20 discharge. Any funds so retained which are surplus shall be
21 deposited with the clerk prior to discharge of the personal
22 representative.
23 (5)(a) If a person entitled to the funds assigns the
24 right his or her rights to receive payment or part payment to
25 an attorney or private investigative agency which is duly
26 licensed to do business in this state pursuant to a written
27 agreement with that such person, the Department of Banking and
28 Finance is authorized to make distribution in accordance with
29 the such assignment.
30 (b) Payments made to an attorney or private
31 investigative agency shall be promptly deposited into a trust
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1 or escrow account which is regularly maintained by the
2 attorney or private investigative agency in a financial
3 institution located in this state and authorized to accept
4 these such deposits and located in this state.
5 (c) Distribution by the attorney or private
6 investigative agency to the person entitled to the funds shall
7 be made within 10 days following final credit of the deposit
8 into the trust or escrow account at the financial institution,
9 unless a party to the agreement protests the distribution in
10 writing such distribution before it is made.
11 (d) The department shall not be civilly or criminally
12 liable for any funds distributed pursuant to this subsection,
13 provided the such distribution is made in good faith.
14 Section 167. Subsections (1) and (2), paragraph (a) of
15 subsection (4), paragraph (c) of subsection (5), subsection
16 (6), paragraph (a) of subsection (7), and subsection (11) of
17 section 733.817, Florida Statutes, are amended to read:
18 733.817 Apportionment of estate taxes.--
19 (1) For purposes of this section:
20 (a) "Fiduciary" means a person other than the personal
21 representative in possession of property included in the
22 measure of the tax who is liable to the applicable taxing
23 authority for payment of the entire tax to the extent of the
24 value of the property in his or her possession.
25 (b) "Governing instrument" means a will, trust
26 agreement, or any other document that controls the transfer of
27 an asset on the occurrence of the event with respect to which
28 the tax is being levied.
29 (c) "Gross estate" means the gross estate, as
30 determined by the Internal Revenue Code with respect to the
31 federal estate tax and the Florida estate tax, and as that
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1 such concept is otherwise determined by the estate,
2 inheritance, or death tax laws of the particular state,
3 country, or political subdivision whose tax is being
4 apportioned.
5 (d) "Included in the measure of the tax" means that
6 for each separate tax that an interest may incur, only
7 interests included in the measure of that particular tax are
8 considered. The term "included in the measure of the tax" does
9 not include any interest, whether passing under the will or
10 not, to the extent the interest is initially deductible from
11 the gross estate, without regard to any subsequent reduction
12 diminution of the deduction by reason of the charge of any
13 part of the applicable tax to the interest. The term "included
14 in the measure of the tax" does not include interests or
15 amounts that are not included in the gross estate but are
16 included in the amount upon which the applicable tax is
17 computed, such as adjusted taxable gifts with respect to the
18 federal estate tax. If an election is required for
19 deductibility, an interest is not "initially deductible"
20 unless the election for deductibility is allowed.
21 (e) "Internal Revenue Code" means the Internal Revenue
22 Code of 1986, as amended from time to time.
23 (f) "Net tax" means the net tax payable to the
24 particular state, country, or political subdivision whose tax
25 is being apportioned, after taking into account all credits
26 against the applicable tax except as provided in this section.
27 With respect to the federal estate tax, "net tax" is
28 determined after taking into account all credits against the
29 tax except for the credit for foreign death taxes.
30 (g) "Nonresiduary devise" means any devise that is not
31 a residuary devise.
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1 (h) "Nonresiduary interest" in connection with a trust
2 means any interest in a trust which is not a residuary
3 interest.
4 (i) "Recipient" means, with respect to property or an
5 interest in property included in the gross estate, an heir at
6 law in an intestate estate, devisee in a testate estate,
7 beneficiary of a trust, beneficiary of an insurance policy,
8 annuity, or other contractual right, surviving tenant, taker
9 as a result of the exercise or in default of the exercise of a
10 general power of appointment, person who receives or is to
11 receive the property or an interest in the property, or person
12 in possession of the property, other than a creditor.
13 (j) "Residuary devise" has the meaning set forth in s.
14 731.201(31)(30).
15 (k) "Residuary interest," in connection with a trust,
16 means an interest in the assets of a trust which remain after
17 provision for any distribution that is to be satisfied by
18 reference to a specific property or type of property, fund,
19 sum, or statutory amount.
20 (l) "Revocable trust" means a trust as described in s.
21 733.707(3) as defined in s. 731.201(33) created by the
22 decedent to the extent that the decedent had at his or her
23 death the power to alter, amend, or revoke the trust either
24 alone or in conjunction with any other person.
25 (m) "State" means any state, territory, or possession
26 of the United States, the District of Columbia, and the
27 Commonwealth of Puerto Rico.
28 (n) "Tax" means any estate tax, inheritance tax,
29 generation skipping transfer tax, or other tax levied or
30 assessed under the laws of this or any other state, the United
31 States, any other country, or any political subdivision of the
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1 foregoing, as finally determined, which is imposed as a result
2 of the death of the decedent, including, without limitation,
3 the tax assessed pursuant to s. 4980A of the Internal Revenue
4 Code. The term also includes any interest and penalties
5 imposed in addition to the tax. Unless the context indicates
6 otherwise, the term "tax" means each separate tax.
7 (o) "Temporary interest" means an interest in income
8 or an estate for a specific period of time or for life or for
9 some other period controlled by reference to extrinsic events,
10 whether or not in trust.
11 (p) "Tentative Florida tax" with respect to any
12 property means the net Florida estate tax that would have been
13 attributable to that property if no tax were payable to any
14 other state in respect of that property.
15 (q) "Value" means the pecuniary worth of the interest
16 involved as finally determined for purposes of the applicable
17 tax after deducting any debt, expense, or other deduction
18 chargeable to it for which a deduction was allowed in
19 determining the amount of the applicable tax. A lien or other
20 encumbrance is not regarded as chargeable to a particular
21 interest to the extent that it will be paid from other
22 interests. The value of an interest shall not be reduced by
23 reason of the charge against it of any part of the tax.
24 (2) An interest in protected homestead property shall
25 be exempt from the apportionment of taxes if such interest
26 passes to a person to whom inures the decedent's exemption
27 from forced sale under the State Constitution.
28 (4)(a) Except as otherwise effectively directed by the
29 governing instrument, if the Internal Revenue Code including,
30 but not limited to, ss. 2032A(c)(5), 2206, 2207, 2207A, 2207B,
31 and 2603, of the Internal Revenue Code applies to apportion
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1 federal tax against recipients of certain interests, all net
2 taxes, including taxes levied by the state attributable to
3 each type of interest, shall be apportioned against the
4 recipients of all interests of that type in the proportion
5 that the value of each interest of that type included in the
6 measure of the tax bears to the total of all interests of that
7 type included in the measure of the tax.
8 (5) Except as provided above or as otherwise directed
9 by the governing instrument, the net tax attributable to each
10 interest shall be apportioned as follows:
11 (c) The net tax attributable to an interest in
12 protected homestead property which is exempt from
13 apportionment pursuant to subsection (2) shall be apportioned
14 against the recipients of other interests in the estate or
15 passing under any revocable trust in the following order:
16 1. Class I: Recipients of interests not disposed of
17 by the decedent's will or revocable trust that which are
18 included in the measure of the federal estate tax.
19 2. Class II: Recipients of residuary devises and
20 residuary interests that are included in the measure of the
21 federal estate tax.
22 3. Class III: Recipients of nonresiduary devises and
23 nonresiduary interests that are included in the measure of the
24 federal estate tax. The net tax apportioned to a class, if
25 any, pursuant to this paragraph shall be apportioned among the
26 recipients in the class in the proportion that the value of
27 the interest of each bears to the total value of all interests
28 included in that class.
29 (6) The personal representative or fiduciary shall not
30 be required to transfer to a recipient any property in
31 possession of the personal representative or fiduciary which
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1 he or she reasonably anticipated to anticipates may be
2 necessary for the payment of taxes. Further, the personal
3 representative or fiduciary shall not be required to transfer
4 any property in possession of the personal representative or
5 fiduciary to the recipient until the amount of the tax due
6 from the recipient is paid by the recipient. If property is
7 transferred before final apportionment of the tax, the
8 recipient shall provide a bond or other security for his or
9 her apportioned liability in the amount and form prescribed by
10 the personal representative or fiduciary.
11 (7)(a) The personal representative may petition at any
12 time for an order of apportionment. If no administration has
13 been commenced at any time after 90 days from the decedent's
14 death any fiduciary may petition for an order of apportionment
15 in the court in which venue would be proper for administration
16 of the decedent's estate. Formal notice of the petition for
17 order of apportionment shall be given to all interested
18 persons. At any time after 6 months from the decedent's death,
19 any recipient may petition the such court for an order of
20 apportionment.
21 (11) Nothing in this section shall limit the right of
22 any person who has paid more than the amount of the tax
23 apportionable to that such person, calculated as if all
24 apportioned amounts would be collected, to obtain contribution
25 from those who have not paid the full amount of the tax
26 apportionable to them, calculated as if all apportioned
27 amounts would be collected, and that right is hereby
28 conferred. In any action to enforce contribution, the court
29 shall award taxable costs as in chancery actions, including
30 reasonable attorney's fees.
31 Section 168. Section 733.901, Florida Statutes, is
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1 amended to read:
2 733.901 Distribution; Final discharge.--
3 (1) After administration has been When a personal
4 representative has completed the personal representative shall
5 be discharged administration except for distribution, he or
6 she shall file a final accounting and a petition for discharge
7 that shall contain:
8 (a) A complete report of all receipts and
9 disbursements since the date of the last annual accounting or,
10 if none, from the commencement of administration.
11 (b) A statement that he or she has fully administered
12 the estate by making payment, settlement, or other disposition
13 of all claims and debts that were presented and the expenses
14 of administration.
15 (c) The proposed distribution of the assets of the
16 estate.
17 (d) Any prior distributions that have been made.
18 (e) A statement that objections to this report or
19 proposed distribution of assets be filed within 30 days.
20
21 The final accounting and petition for discharge shall be filed
22 and served on all interested persons within 12 months after
23 issuance of letters for estates not required to file a federal
24 estate tax return, otherwise 12 months from the date the
25 return is due, unless the time is extended by the court for
26 cause shown after notice to interested persons. The petition
27 shall state the status of the estate and the reasons for the
28 extension.
29 (2) If no objection to the accounting or petition for
30 discharge has been filed within 30 days from the date of
31 service of copies on interested persons, or if service has
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1 been waived, the personal representative may distribute the
2 estate according to the plan of distribution set forth in the
3 petition without a court order. The assets shall be
4 distributed free from the claims of any interested person and,
5 upon receipt of evidence that the estate has been properly
6 distributed and that claims of creditors have been paid or
7 otherwise disposed of, the court shall enter an order
8 discharging the personal representative and releasing the
9 surety on any bond.
10 (3) If an objection to the petition for discharge has
11 been filed within the time allowed, the court shall determine
12 the plan of distribution and, upon receipt of evidence that
13 the estate has been properly distributed and that claims of
14 creditors have been paid or otherwise disposed of, the court
15 shall enter an order discharging the personal representative
16 and releasing the surety on any bond.
17 (4) The final accounting required under subsection (1)
18 may be waived upon a filing of a consent waiver with the
19 court, by all interested persons, acknowledging that they are
20 aware of their rights and that they waive the right to have a
21 final accounting.
22 (5) The 30-day period contained in subsection (2) may
23 be waived upon written consent of all interested persons.
24 (2)(6) The discharge of the personal representative
25 shall release the personal representative of the estate and
26 shall bar any action against the personal representative, as
27 such or individually, and the his or her surety.
28 Section 169. Section 733.903, Florida Statutes, is
29 amended to read:
30 733.903 Subsequent administration.--The final
31 settlement of an estate and the discharge of the personal
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1 representative shall not prevent a revocation of the order of
2 discharge or the subsequent issuance of letters if other
3 property of the estate is discovered or if it becomes
4 necessary that further administration of the estate be had for
5 any cause. However, The order of discharge may not be revoked
6 under this section based upon the discovery of a will or later
7 will.
8 Section 170. Subsections (3) and (4) of section
9 734.101, Florida Statutes, are amended to read:
10 734.101 Foreign personal representative.--
11 (3) Debtors who have not received a written demand for
12 payment from a personal representative or curator appointed in
13 this state within 60 days after appointment of a personal
14 representative in any other state or country, and whose
15 property in Florida is subject to a mortgage or other lien
16 securing the debt held by the foreign personal representative,
17 may pay the foreign personal representative after the
18 expiration of 60 days from the date of his or her appointment
19 of the foreign personnel representative. Thereafter, a
20 satisfaction of the mortgage or lien executed by the foreign
21 personal representative, with an authenticated copy of the his
22 or her letters or other evidence of authority attached, may be
23 recorded in the public records. The satisfaction shall be an
24 effective discharge of the mortgage or lien, irrespective of
25 whether the debtor making payment had received a written
26 demand before paying the debt.
27 (4) All persons indebted to the estate of a decedent,
28 or having possession of personal property belonging to the
29 estate, who have received no written demand from a personal
30 representative or curator appointed in this state for payment
31 of the debt or the delivery of the property are authorized to
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1 pay the debt or to deliver the personal property to the
2 foreign personal representative after the expiration of 60
3 days from the date of his or her appointment of the foreign
4 personnel representative.
5 Section 171. Section 734.102, Florida Statutes, is
6 amended to read:
7 734.102 Ancillary administration.--
8 (1) If a nonresident of this state dies leaving assets
9 in this state, credits due him or her from residents in this
10 state, or liens on property in this state, a personal
11 representative specifically designated in the decedent's will
12 to administer the Florida property shall be entitled to have
13 ancillary letters issued to him or her, if qualified to act in
14 Florida. Otherwise, the foreign personal representative of the
15 decedent's estate shall be entitled to have letters issued to
16 him or her, if qualified to act in Florida. If the foreign
17 personal representative is not qualified to act in Florida and
18 the will names an alternate or successor who is qualified to
19 act in Florida, the alternate or successor shall be entitled
20 to have letters issued to him or her. Otherwise, those
21 entitled to a majority interest of the Florida property may
22 have letters issued to a personal representative selected by
23 them who is qualified to act in Florida. If the decedent dies
24 intestate and the foreign domiciliary personal representative
25 is not qualified to act in Florida, the order of preference
26 for appointment of a personal representative as prescribed in
27 this code shall apply. If ancillary letters are applied for
28 by other than the domiciliary personal representative, prior
29 notice shall be given to any domiciliary personal
30 representative.
31 (2) Ancillary administration shall be commenced as
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1 provided by the Florida Probate Rules. To entitle the
2 applicant to ancillary letters, an authenticated copy of so
3 much of the domiciliary proceedings shall be filed as will
4 show either:
5 (a) The will, petition for probate, order admitting
6 the will to probate, and letters, if there are such; or
7 (b) The petition for letters and the letters.
8 (3) On filing the authenticated copy of a probated
9 will, including any probated codicils, the court shall
10 determine If the will and any the codicils, are executed as
11 required by the code, they shall be admitted to probate if
12 any, comply with s. 732.502(1) or s. 732.502(2). If they
13 comply, the court shall admit the will and any codicils to
14 record.
15 (4) The ancillary personal representative shall give
16 bond as do personal representatives generally. All
17 proceedings for appointment and administration of the estate
18 shall be as similar to those in original administrations as
19 possible.
20 (5) Unless creditors' claims are otherwise barred by
21 s. 733.710, the ancillary personal representative shall cause
22 a notice to creditors to be served and published according to
23 the requirements of chapter 733. Claims not filed in
24 accordance with chapter 733 shall be barred as provided in s.
25 733.702.
26 (6)(5) After the payment of all expenses of
27 administration and claims against the estate, the court may
28 order the remaining property held by the ancillary personal
29 representative transferred to the foreign domiciliary personal
30 representative or distributed to the beneficiaries heirs or
31 devisees.
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1 (7)(6) Ancillary personal representatives shall have
2 the same rights, powers, and authority as other personal
3 representatives in Florida to manage and settle estates; to
4 sell, lease, or mortgage local property; and to raise funds
5 for the payment of debts, claims, and devises in the
6 domiciliary jurisdiction. No property shall be sold, leased,
7 or mortgaged to pay a debt or claim that is barred by any
8 statute of limitation or of nonclaim of this state.
9 Section 172. Section 734.1025, Florida Statutes, is
10 amended to read:
11 734.1025 Nonresident decedent's testate estate with
12 property not exceeding $50,000 $25,000 in this state;
13 determination of claims.--
14 (1) When a nonresident decedent dies testate and
15 leaves property subject to administration in this state the
16 gross value of which does not exceed $50,000 at the date of
17 death $25,000, the foreign domiciliary personal representative
18 of the estate may determine the question of claims in this
19 state before the expiration of 2 years after the decedent's
20 death may file the 2-year period provided in s. 733.710 by
21 filing in the circuit court of the county where any property
22 is located an authenticated transcript of so much of the
23 foreign domiciliary proceedings as will show the will and
24 beneficiaries of the estate, as provided in the Florida
25 Probate Rules. The court shall admit the will and any codicils
26 to probate if they comply with s. 732.502(1) or (2).:
27 (a) In a testate estate, the probated will and all
28 probated codicils of the decedent; the order admitting them to
29 record; the letters or their equivalent; and the part of the
30 record showing the names of the devisees and heirs of the
31 decedent or an affidavit of the domiciliary personal
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1 representative reciting that the names are not shown or not
2 fully disclosed by the domiciliary record and specifying the
3 names. On presentation of the foregoing, the court shall
4 admit the will and any codicils to probate if they comply with
5 s. 732.502(1) or (2).
6 (b) In an intestate estate, the authenticated copy of
7 letters of administration, or their equivalent, with the part
8 of the record showing the names of the heirs of the decedent
9 or an affidavit of the domiciliary personal representative
10 supplying the names, as provided in paragraph (a). On
11 presentation of the foregoing, the court shall order them
12 recorded.
13 (2) After complying with the foregoing requirements,
14 The foreign domiciliary personal representative may shall
15 cause a notice to creditors to be served and published
16 according to the revelant requirements of chapter 733 s.
17 731.111, notifying all persons having claims or demands
18 against the estate to file them. Claims not filed in
19 accordance with chapter 733 shall be barred as provided in s.
20 733.702. If any claim is filed, a personal representative
21 shall be appointed as provided in the Florida Probate Rules.
22 (3) The procedure for filing claims and objection to
23 them and for suing on them shall be the same as for other
24 estates, except as hereinafter provided.
25 (4) If no claims are filed against the estate within
26 the time allowed, the court shall enter an order adjudging
27 that notice to creditors has been duly given and proof thereof
28 filed and that no claims have been filed against the estate or
29 that all claims have been satisfied.
30 (5) If any claim is filed against the estate within
31 the time allowed, the court shall send to the domiciliary
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1 personal representative a copy of the claim and a notice
2 setting a date for a hearing to appoint an ancillary personal
3 representative. At the hearing, the court shall appoint an
4 ancillary personal representative according to the preferences
5 as provided in s. 733.301.
6 (6) If an ancillary personal representative is
7 appointed pursuant to subsection (5), the procedure for
8 filing, objecting to, and suing on claims shall be the same as
9 for other estates, except that the ancillary personal
10 representative appointed shall have not fewer than 30 days
11 from the date of his or her appointment within which to object
12 to any claim filed.
13 (7) The filing by domiciliary personal representatives
14 of portions of the domiciliary probate proceedings as
15 specified in this section, and the barring of claims of
16 creditors in such estates by the publication of notice to
17 creditors as set forth in this section, in all cases prior to
18 June 25, 1980, are hereby validated and confirmed.
19 Section 173. Paragraph (a) of subsection (1) and
20 subsection (3) of section 734.104, Florida Statutes, are
21 amended to read:
22 734.104 Foreign wills; admission to record; effect on
23 title.--
24 (1) An authenticated copy of the will of a nonresident
25 that devises real property in this state, or any right, title,
26 or interest in the property, may be admitted to record in any
27 county of this state where the property is located at any time
28 after 2 years from the death of the decedent or at any time
29 after the domiciliary personal representative has been
30 discharged if there has been no proceeding to administer the
31 estate of the decedent in this state, provided:
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1 (a) The will was executed as required by Chapter 732
2 complies with s. 732.502 as to form and manner of execution;
3 and
4 (3) If the court finds that the requirements of this
5 section have been met has been complied with, it shall enter
6 an order admitting the foreign will to record.
7 Section 174. Section 734.201, Florida Statutes, is
8 amended to read:
9 734.201 Jurisdiction by act of foreign personal
10 representative.--A foreign personal representative submits
11 personally to the jurisdiction of the courts of this state in
12 any proceeding concerning the estate by:
13 (1) Filing authenticated copies of the domiciliary
14 proceedings under s. 734.104; 734.103.
15 (2) Receiving payment of money or taking delivery of
16 personal property, under s. 734.101; or.
17 (3) Doing any act as a personal representative in this
18 state that would have given the state jurisdiction over that
19 person him or her as an individual.
20 Section 175. Section 734.202, Florida Statutes, is
21 amended to read:
22 734.202 Jurisdiction by act of decedent.--In addition
23 to jurisdiction conferred by s. 734.201, a foreign personal
24 representative is subject to the jurisdiction of the courts of
25 this state to the same extent that the his or her decedent was
26 subject to jurisdiction immediately before death.
27 Section 176. Section 735.101, Florida Statutes, is
28 repealed:
29 735.101 Family administration; nature of
30 proceedings.--Family administration may be had in the
31 administration of a decedent's estate when it appears:
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1 (1) In an intestate estate, that the heirs at law of
2 the decedent consist solely of a surviving spouse, lineal
3 descendants, and lineal ascendants, or any of them.
4 (2) In a testate estate, that the beneficiaries under
5 the will consist of a surviving spouse, lineal descendants,
6 and lineal ascendants, or any of them, and that any specific
7 or general devise to others constitutes a minor part of the
8 decedent's estate.
9 (3) In a testate estate, that the decedent's will does
10 not direct administration as required by chapter 733.
11 (4) That the value of the gross estate, as of the date
12 of death, for federal estate tax purposes is less than
13 $60,000.
14 (5) That the entire estate consists of personal
15 property or, if real property forms part of the estate, that
16 administration under chapter 733 has proceeded to the point
17 that all claims of creditors have been processed or barred.
18 Section 177. Section 735.103, Florida Statutes, is
19 repealed:
20 735.103 Petition for family administration.--A
21 verified petition for family administration shall contain, in
22 addition to the statements required by s. 733.202, the
23 following:
24 (1) Facts showing that petitioners are entitled to
25 family administration, as provided in s. 735.101.
26 (2) A complete list of the assets of the gross estate
27 for federal estate tax purposes and their estimated value.
28 (3) An appropriate statement that the estate is not
29 indebted or that provision for payment of debts has been made
30 or the claims are barred.
31 (4) A proposed schedule of distribution of all assets
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1 to those entitled thereto as surviving spouse, heirs,
2 beneficiaries, or creditors.
3
4 The petition shall be signed and verified by all beneficiaries
5 and the surviving spouse, if any. The petition may be signed
6 on behalf of a minor or an incompetent by her or his legal
7 guardian or, if none, by her or his natural guardian.
8 Section 178. Section 735.107, Florida Statutes, is
9 repealed:
10 735.107 Family administration distribution.--
11 (1) Upon filing the petition for family
12 administration, the will, if any, shall be proved in
13 accordance with chapter 733 and be admitted to probate.
14 (2) If the estate consists of personal property only,
15 then, after such hearing as the court may require, an order of
16 family administration may be entered allowing immediate
17 distribution of the assets to the persons entitled to them.
18 (3) The order of family administration and the
19 distribution so entered shall have the following effect:
20 (a) Those to whom specified parts of the decedent's
21 estate are assigned by the order shall be entitled to receive
22 and collect the parts and to have the parts transferred to
23 them. They may maintain actions to enforce the right.
24 (b) Debtors of the decedent, those holding property of
25 the decedent, and those with whom securities or other property
26 of the decedent are registered are authorized and empowered to
27 comply with the order by paying, delivering, or transferring
28 to those specified in the order the parts of the decedent's
29 estate assigned to them by the order, and the persons so
30 paying, delivering, or transferring shall not be accountable
31 to anyone else for the property.
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1 (c) After the entry of the order, bona fide purchasers
2 for value from those to whom property of the decedent may be
3 assigned by the order shall take the property free of all
4 claims of creditors of the decedent and all rights of the
5 surviving spouse and all other heirs and devisees.
6 (d) Property of the decedent that is not exempt from
7 claims of creditors and that remains in the hands of those to
8 whom it may be assigned by the order shall continue to be
9 liable for claims against the decedent until barred as
10 provided in this law.
11 (e) The petitioners for the order of family
12 administration shall be personally liable for all lawful
13 claims against the estate of the decedent, but only to the
14 extent of the value of the estate of the decedent actually
15 received by each petitioner, exclusive of the property exempt
16 from claims of creditors under the constitution and statutes
17 of Florida.
18 (f) After 2 years from the death of the decedent,
19 neither her nor his estate nor those to whom it may be
20 assigned shall be liable for any claim against the decedent,
21 unless proceedings have been taken for the enforcement of the
22 claim.
23 (g) Any heir or devisee of the decedent who was
24 lawfully entitled to share in the estate but was not included
25 in the order of family administration and distribution may
26 enforce her or his rights against those who procured the order
27 in appropriate proceedings and, when successful, shall be
28 awarded reasonable attorney's fees as an element of costs.
29 (4)(a) If the estate of the decedent includes real
30 property and administration under chapter 733 has proceeded to
31 the point that all claims of creditors have been processed or
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1 barred, or upon the satisfaction of all claims of creditors,
2 if any, and after such hearing as the court may require, an
3 order of family administration may be entered and the personal
4 representative authorized to make distribution of the assets
5 to the persons entitled to them. Upon evidence satisfactory
6 to the court that distribution has been made, the court shall
7 enter an order discharging the personal representative.
8 (b) Any heir or devisee of the decedent who was
9 lawfully entitled to share in the estate but who was not
10 included in the order of family administration and
11 distribution may enforce her or his rights against those who
12 procured the order in appropriate proceedings and, when
13 successful, shall be awarded reasonable attorney's fees as an
14 element of costs.
15 Section 179. Subsection (2) of section 735.201,
16 Florida Statutes, is amended to read:
17 735.201 Summary administration; nature of
18 proceedings.--Summary administration may be had in the
19 administration of either a resident or nonresident decedent's
20 estate, when it appears:
21 (2) That the value of the entire estate subject to
22 administration in this state, less the value of property
23 exempt from the claims of creditors, does not exceed $75,000
24 $25,000 or that the decedent has been dead for more than 2
25 years.
26 Section 180. Section 735.203, Florida Statutes, is
27 amended to read:
28 735.203 Petition for summary administration.--
29 (1) A petition for summary administration may be filed
30 by any beneficiary, heir at law, or person nominated as
31 personal representative in the decedent's will offered for
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1 probate. and shall be signed and verified by: The petition
2 must be signed and verified by
3 (a) the surviving spouse, if any and any; the heirs at
4 law or beneficiaries.
5 (2) If a person named in subsection (1) has died, is
6 incapacitated, or is a minor, or has conveyed or transferred
7 all interest in the property of the estate, then, as to that
8 person, the petition must be signed and certified by:
9 (a) The personal representative, if any, of a deceased
10 person or, if none, the surviving spouse, if any, and the
11 beneficiaries;
12 (b) The guardian of an incapacitated person or a
13 minor; or
14 (c) The grantee or transferee of any of them shall be
15 authorized to sign and verify the petition instead of the
16 beneficiary or surviving spouse.
17 (3) The joinder in, or consent to, a petition for
18 summary administration is not required of a beneficiary who
19 will receive full distributive share under the proposed
20 distribution. Any beneficiary not joining or consenting shall
21 receive formal notice of the petition. who are sui juris; and
22 the guardians of any heirs at law or beneficiaries who are not
23 sui juris; or
24 (b) The persons described by s. 735.209.
25 (2) A petition for summary administration shall
26 contain, in addition to the statements required by s.
27 733.202(2)(b) and (c), the following:
28 (a) Facts showing that petitioners are entitled to
29 summary administration as provided in s. 735.201.
30 (b) A complete list of the assets of the estate and
31 their estimated value, together with those assets claimed to
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1 be exempt.
2 (c) A statement that the estate is not indebted or
3 that provision for payment of debts has been made.
4 (d) A proposed schedule of distribution of all assets
5 to those entitled thereto as surviving spouse, beneficiaries,
6 or creditors.
7 Section 181. Section 735.206, Florida Statutes, is
8 amended to read:
9 735.206 Summary administration distribution.--
10 (1) Upon the filing of the petition for summary
11 administration, the will, if any, shall be proved in
12 accordance with chapter 733 and be admitted to probate.
13 (2) Prior to entry of the order of summary
14 administration, the petitioner shall make a diligent search
15 and reasonable inquiry for any known or reasonably
16 ascertainable creditors, serve a copy of the petition on those
17 creditors, and make provision for payment for those creditors
18 to the extent that assets are available.
19 (3)(2) The court may enter After such hearing as the
20 court may require, an order of summary administration may be
21 entered allowing immediate distribution of the assets to the
22 persons entitled to them.
23 (4)(3) The order of summary administration and
24 distribution so entered shall have the following effect:
25 (a) Those to whom specified parts of the decedent's
26 estate, including exempt property, are assigned by the order
27 shall be entitled to receive and collect the parts and to have
28 the parts transferred to them. They may maintain actions to
29 enforce the right.
30 (b) Debtors of the decedent, those holding property of
31 the decedent, and those with whom securities or other property
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1 of the decedent are registered are authorized and empowered to
2 comply with the order by paying, delivering, or transferring
3 to those specified in the order the parts of the decedent's
4 estate assigned to them by the order, and the persons so
5 paying, delivering, or transferring shall not be accountable
6 to anyone else for the property.
7 (c) After the entry of the order, bona fide purchasers
8 for value from those to whom property of the decedent may be
9 assigned by the order shall take the property free of all
10 claims of creditors of the decedent and all rights of the
11 surviving spouse and all other beneficiaries heirs and
12 devisees.
13 (d) Property of the decedent that is not exempt from
14 claims of creditors and that remains in the hands of those to
15 whom it may be assigned by the order shall continue to be
16 liable for claims against the decedent until barred as
17 provided in the code this law. Any known or reasonably
18 ascertainable creditor who did not receive notice and for whom
19 provision for payment was not made may enforce the claim and,
20 if the creditor prevails, shall be awarded reasonable
21 attorneys fees as an element of costs against those who joined
22 in the petition.
23 (e) The recipients of the decedent's property under
24 petitioners for the order of summary administration shall be
25 personally liable for a pro rata share of all lawful claims
26 against the estate of the decedent, but only to the extent of
27 the value of the estate of the decedent actually received by
28 each recipient petitioner, exclusive of the property exempt
29 from claims of creditors under the constitution and statutes
30 of Florida.
31 (f) After 2 years from the death of the decedent,
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1 neither the decedent's estate nor those to whom it may be
2 assigned shall be liable for any claim against the decedent,
3 unless proceedings have been taken for the enforcement of the
4 claim.
5 (g) Any heir or devisee of the decedent who was
6 lawfully entitled to share in the estate but who was not
7 included in the order of summary administration and
8 distribution may enforce all his or her rights in appropriate
9 proceedings against those who procured the order and, if when
10 successful, shall be awarded reasonable attorney's fees as an
11 element of costs.
12 Section 182. Section 735.2063, Florida Statutes, is
13 amended to read:
14 735.2063 Notice to creditors.--
15 (1) Any person who has obtained received an order of
16 summary administration may publish a notice to creditors
17 according to the relevant requirements of s. 733.2121 731.111,
18 notifying all persons having claims or demands against the
19 estate of the decedent that an order of summary administration
20 has been entered by the court. The Such notice shall will
21 specify the total cash value of the estate and the names and
22 addresses of those to whom it has been assigned by the such
23 order. Such notice, if published, shall be published once a
24 week for 2 consecutive weeks in a newspaper published in the
25 county where such order was entered, and proof of publication
26 of such notice shall be filed with the court.
27 (2) If proof of publication of the such notice is
28 filed with the court, all claims and demands of creditors
29 against the estate of the decedent who are not known or are
30 reasonably ascertainable shall be forever barred unless the
31 such claims and demands are filed with the court within 3
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1 months after from the first publication of the such notice.
2 Section 183. Section 735.209, Florida Statutes, is
3 repealed:
4 735.209 Joinder of heirs, devisees, or surviving
5 spouse in summary administration.--
6 (1) When any heir, devisee, or surviving spouse is
7 authorized or required under this part to join in any
8 agreement or petition and any such person has died, become
9 incompetent or is a minor, or has conveyed or transferred all
10 of his or her interest in the property of the estate, then:
11 (a) The heirs, devisees, and surviving spouse, if any,
12 of a deceased person,
13 (b) The personal representative, if any, of the estate
14 of a deceased person,
15 (c) The guardian of an incompetent or minor, or
16 (d) The grantee or transferee of any of them
17
18 shall be authorized to join in such agreement or petition
19 instead of the heir, devisee, or surviving spouse.
20 (2) The joinder in, or consent to, a petition for
21 summary administration is not required of an heir or
22 beneficiary who will receive his or her full distributive
23 share under the proposed distribution. Any beneficiary not
24 joining or consenting shall receive formal notice of the
25 petition.
26 Section 184. Subsection (3) of section 735.301,
27 Florida Statutes, is amended to read:
28 735.301 Disposition without administration.--
29 (3) Any person, firm, or corporation paying,
30 delivering, or transferring property under the authorization
31 shall be forever discharged from any liability thereon.
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1 Section 185. Section 735.302, Florida Statutes, is
2 amended to read:
3 735.302 Income tax refunds in certain cases.--
4 (1) In any case when the United States Treasury
5 Department determines that an overpayment of federal income
6 tax exists and the person in whose favor the overpayment is
7 determined is dead at the time the overpayment of tax is to be
8 refunded, and irrespective of whether the decedent had filed a
9 joint and several or separate income tax return, the amount of
10 the overpayment, if not in excess of $2,500 $500, may be
11 refunded as follows:
12 (a) Directly to the surviving spouse on his or her
13 verified application; or
14 (b) If there is no surviving spouse, to one of the
15 decedent's children who is designated in a verified
16 application purporting to be executed by all of the decedent's
17 children over the age of 14 years.
18
19 In either event, the application must show that the decedent
20 was not indebted, that provision has been made for the payment
21 of the decedent's debts, or that the entire estate is exempt
22 from the claims of creditors under the constitution and
23 statutes of the state, and that no administration of the
24 estate, including summary administration, has been initiated
25 and that none is planned, to the knowledge of the applicant.
26 (2) If a refund is made to the surviving spouse or
27 designated child pursuant to the application, the refund shall
28 operate as a complete discharge to the United States from
29 liability from any action, claim, or demand by any beneficiary
30 of the decedent or other person. Nothing in This section
31 shall be construed as establishing the ownership or rights of
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1 the payee any person in the refund so distributed.
2 Section 186. Section 737.208, Florida Statutes, is
3 created to read:
4 737.208 Administration pending outcome of contest or
5 other proceeding.--
6 (1) Pending the outcome of a proceeding filed to
7 determine the validity of all or part of a trust or the
8 beneficiaries of all or part of a trust, the trustee shall
9 proceed with the administration of the trust as if no
10 proceeding had been commenced, except that no distribution may
11 be made to a beneficiary in contravention of the rights of
12 those persons that may be affected by the outcome of the
13 proceeding.
14 (2) Upon motion of a party and after notice to
15 interested persons, a court may, upon good cause shown, make
16 an exception to the prohibition under subsection (1) and
17 authorize the trustee to distribute trust assets to a
18 beneficiary subject to any conditions the court, in its
19 discretion, may impose, including the posting of bond by the
20 beneficiary.
21 Section 187. Section 737.3054, Florida Statutes, is
22 amended to read:
23 737.3054 Trustee's duty to pay expenses and
24 obligations of grantor's settlor's estate.--
25 (1) A trustee of a trust described in s. 733.707(3)
26 shall pay to the personal representative of a grantor's
27 settlor's estate any amounts that the personal representative
28 certifies in writing to the trustee are required to pay the
29 expenses of the administration and obligations of the
30 grantor's settlor's estate and the enforceable claims of the
31 settlor's creditors. Payments made by a trustee, unless
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1 otherwise provided in the trust instrument, must be charged as
2 expenses of the trust without a contribution from anyone. The
3 interests interest of all beneficiaries of such a trust are
4 subject to the provisions of this subsection; however, the
5 payments must be made from assets or property or the proceeds
6 thereof, other than assets proscribed in s. 733.707(3), which
7 are included in the grantor's settlor's gross estate for
8 federal estate tax purposes.
9 (2) Unless a grantor settlor provides by will, or
10 designates in a trust described in s. 733.707(3) the funds or
11 property passing under the a trust described in s. 733.707(3)
12 to be so used, the expenses of the administration and
13 obligations of the grantor's settlor's estate and enforceable
14 claims of the settlor's creditors must be paid from the trust
15 in the following order:
16 (a) Property of the residue of the trust remaining
17 after all distributions that are to be satisfied by reference
18 to a specific property or type of property, fund, or sum;
19 (b) Property that is not to be distributed from
20 specified or identified property or a specified or identified
21 item of property; and
22 (c) Property that is to be distributed from specified
23 or identified property or a specified or identified item of
24 property.
25 (3) Trust distributions that are to be satisfied from
26 specified or identified property must be classed as
27 distributions to be satisfied from the general assets of the
28 trust and not otherwise disposed of in the trust instrument
29 upon the failure or insufficiency of funds or property from
30 which payment should be made, to the extent of the
31 insufficiency. Trust distributions given for valuable
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1 consideration abate with other distributions of the same class
2 only to the extent of the excess over the value of the
3 consideration until all others of the same class are
4 exhausted. Except as provided in this section, trust
5 distributions abate equally and ratably and without preference
6 or priority between real and personal property. When a
7 specified or identified item of property that has been
8 designated for distribution in the trust instrument or that is
9 charged with a distribution is sold or taken by the trustee,
10 other beneficiaries shall contribute according to their
11 respective interests to the beneficiary whose property has
12 been sold or taken, and before distribution the trustee shall
13 determine the amounts of the respective contributions, and
14 they must be paid or withheld before distribution is made.
15 (4) The trustee shall pay the expenses of trust
16 administration, including compensation of trustees and their
17 attorneys, before and in preference to the expenses of the
18 administration and obligations of the grantor's settlor's
19 estate and enforceable claims of the settlor's creditors.
20 Section 188. Section 737.306, Florida Statutes, is
21 amended to read:
22 737.306 Personal liability of trustee.--
23 (1)(a) Unless otherwise provided in the contract, a
24 trustee is not personally liable on contracts, except
25 contracts for attorneys' fees, properly entered into in the
26 trustee's fiduciary capacity in the course of administration
27 of the trust estate unless the trustee he or she fails to
28 reveal that his or her representative capacity and identify
29 the trust estate in the contract.
30 (b) A trustee is personally liable for obligations
31 arising from ownership or control of property of the trust
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1 estate or for torts committed in the course of administration
2 of the trust estate only if the trustee is personally at
3 fault.
4 (c) Claims based on contracts, except contracts for
5 attorneys' fees, entered into by a trustee in his or her
6 fiduciary capacity, on obligations arising from ownership or
7 control of the trust estate, or on torts committed in the
8 course of trust administration may be asserted against the
9 trust estate by proceeding against the trustee in the
10 trustee's his or her fiduciary capacity, whether or not the
11 trustee is personally liable.
12 (2) Issues of liability between the trust estate and
13 the trustee individually may be determined in a proceeding for
14 accounting, surcharge, or indemnification, or in any other
15 appropriate proceeding.
16 (3) A successor trustee is not personally liable for
17 any action taken or omitted to be taken by any prior trustee;
18 nor does any successor trustee have a duty to institute any
19 action against any prior trustee, or file any claim against
20 any prior trustee's estate, for any of the prior trustee's
21 acts or omissions as trustee under any of the following
22 circumstances:
23 (a) The successor trustee succeeds a trustee who was
24 also the grantor of a trust that was revocable during the time
25 that the grantor served as trustee;
26 (b) As to any beneficiary who has waived any
27 accounting required by s. 737.303, but only as to the periods
28 included in the such waiver;
29 (c) As to any beneficiary who has released the
30 successor trustee from the such duty to institute any action
31 or file any claim;
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Amendment No. ___ Barcode 192000
1 (d) As to any person who is not a beneficiary within
2 the meaning of s. 737.303(4)(b); or
3 (e) As to any beneficiary described in s.
4 737.303(4)(b):
5 1. If a super majority of the reasonably ascertainable
6 current income or principal beneficiaries described in s.
7 737.303(4)(b)1. and a super majority of the reasonably
8 ascertainable remainder beneficiaries described in s.
9 737.303(4)(b)2. have released the successor trustee;
10 2. If the beneficiary has not delivered a written
11 request to the successor trustee to institute an action or
12 file a claim against the prior trustee within 6 months after
13 the date of the successor trustee's acceptance of the trust,
14 if the successor trustee has notified the beneficiary in
15 writing of its acceptance in accordance with s. 737.303(1) and
16 that such writing advises the beneficiary that, unless the
17 beneficiary delivers the such written request within 6 months
18 after the date of acceptance, the his or her right to proceed
19 against the successor trustee will be barred pursuant to this
20 section; or
21 3. For any action or claim that the beneficiary is
22 barred from bringing against the prior trustee.
23 (4)(a) Two years after the death of a settlor, neither
24 a trust described in s. 733.707(3) as established by the
25 settlor, the trustee of the trust, nor any beneficiary may be
26 held liable for any claim or cause of action against the
27 settlor by a creditor who seeks to recover from the trust,
28 trustee, or beneficiary.
29 (b) This subsection does not apply to a creditor who
30 has timely filed a claim against the settlor's estate under s.
31 733.702 within 2 years after the settlor's death and whose
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Amendment No. ___ Barcode 192000
1 claim has not been paid or otherwise disposed of, even if the
2 settlor's estate proceedings have been closed or otherwise
3 completed.
4 (c) This subsection does not affect the lien of a duly
5 recorded mortgage or security interest or the right to
6 foreclose and enforce the mortgage or lien.
7 (f)(5) For the purposes of this section, a super
8 majority of beneficiaries means at least two-thirds in
9 interest of the beneficiaries if the interests of the
10 beneficiaries are reasonably ascertainable; otherwise, it
11 means at least two-thirds in number of the beneficiaries. A
12 release or waiver under this section may be exercised by a
13 legal representative or natural guardian of the beneficiary
14 without the filing of any proceeding or approval of any court.
15 Nothing in this subsection (3) affects any liability of the
16 prior trustee or the right of the successor trustee or any
17 beneficiary to pursue an action or claim against the prior
18 trustee.
19 Section 189. Section 737.3061, Florida Statutes, is
20 created to read:
21 737.3061 Limitations on actions against certain
22 trusts.--
23 (1) After the death of a grantor, no creditor of the
24 grantor may bring, maintain, or continue any direct action
25 against a trust described in s. 733.707(3), the trustee of the
26 trust or any beneficiary of the trust that is dependent on the
27 individual liability of the grantor. Those claims and causes
28 of action against the grantor shall be presented and enforced
29 against the grantor's estate as provided in part VII of
30 chapter 733, and the personal representative of the grantor's
31 estate may obtain payment from the trustee of a trust
193
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Amendment No. ___ Barcode 192000
1 described in s. 733.707(3) as provided in ss. 733.607(2),
2 733.707(3), and 737.3054(1).
3 (2) This section shall not preclude a direct action
4 against a trust described in s. 733.707(3), the trustee of the
5 trust, or a beneficiary of the trust that is not dependent on
6 the individual liability of the grantor.
7 (3) This section does not affect the lien of any duly
8 recorded mortgage or security interest or the lien of any
9 person in possession of personal property or the right to
10 foreclose and enforce the mortgage or lien.
11 Section 190. Section 737.308, Florida Statutes, is
12 amended to read:
13 737.308 Notice of trust.--
14 (1) Upon the death of a grantor settlor of a trust
15 described in s. 733.707(3), the trustee must file a notice of
16 trust with the court of the county of the grantor's settlor's
17 domicile and the court having jurisdiction of the grantor's
18 settlor's estate.
19 (2) The notice of trust must contain the name of the
20 grantor settlor, the grantor's settlor's date of death, the
21 title of the trust, if any, the date of the trust, and the
22 name and address of the trustee.
23 (3) If the grantor's settlor's probate proceeding has
24 been commenced, the clerk must notify the trustee in writing
25 of the date of the commencement of the probate proceeding and
26 the file number.
27 (4) The clerk shall file and index the notice of trust
28 in the same manner as a caveat, unless there exists a probate
29 proceeding for the grantor's settlor's estate in which case
30 the notice of trust must be filed in the probate proceeding
31 and the clerk shall send a copy to the personal
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Amendment No. ___ Barcode 192000
1 representative.
2 (5) The clerk shall send a copy of any caveat filed
3 regarding the grantor settlor to the trustee, and the Notice
4 of Trust to any caveator, unless there is a probate proceeding
5 pending and the personal representative and the trustee are
6 the same.
7 (6) In any proceeding affecting the expenses of the
8 administration of the estate, or any claims described in s.
9 733.702(1), the trustee of a trust described in s. 733.707(3)
10 is an interested person in the administration of the grantor's
11 estate.
12 (6)(7) Any proceeding affecting the expenses of the
13 administration or obligations of the grantor's estate or any
14 claims described in s. 733.702(1) prior to the trustee filing
15 a notice of trust are binding upon the trustee.
16 (7)(8) The trustee's failure to file the notice of
17 trust does not affect the trustee's obligation to pay expenses
18 of administration and obligations of the grantor's estate
19 enforceable claims as provided in s. 733.607(2).
20 Section 191. Section 215.965, Florida Statutes, is
21 amended to read:
22 215.965 Disbursement of state moneys.--Except as
23 provided in s. 17.076, s. 253.025(14), s. 259.041(18), s.
24 717.124(5), s. 732.107(5)(6), or s. 733.816(5), all moneys in
25 the State Treasury shall be disbursed by state warrant, drawn
26 by the Comptroller upon the State Treasury and payable to the
27 ultimate beneficiary. This authorization shall include
28 electronic disbursement.
29 Section 192. Subsection (3) of section 660.46, Florida
30 Statutes, is amended to read:
31 660.46 Substitution of fiduciaries.--
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Amendment No. ___ Barcode 192000
1 (3) Unless a waiver or consent shall be filed in the
2 proceedings as provided in subsection (4), the provisions of
3 s. 731.301(1)(a), (c), and (2)(d) shall apply with respect to
4 notice of the proceedings to all persons who are then
5 cofiduciaries with the original fiduciary, other than a person
6 joining as a petitioner in the proceedings; to all persons
7 named in the governing instrument as substitutes or successors
8 to the fiduciary capacity of the original fiduciary; to the
9 persons then living who are entitled under the governing
10 instrument to appoint a substitute or successor to act in the
11 fiduciary capacity of the original fiduciary; to all vested
12 beneficiaries of the fiduciary account; and to all then-living
13 originators of the governing instrument. Unless a waiver or
14 consent shall be filed in the proceedings as provided in
15 subsection (4), the provisions of s. 731.301(2) shall apply
16 with respect to notice to all contingent beneficiaries of the
17 fiduciary account. Only the persons or classes of persons
18 described in the foregoing provisions of this subsection shall
19 be deemed to be interested persons for the purposes of this
20 section and the proceedings and notices provided for in this
21 section; and the provisions of ss. 731.301(3) and
22 731.303(3)(4) and (4)(5), relating to notice requirements, the
23 effect of notice, and representation of interests, shall apply
24 to the proceedings provided for in this section.
25 Section 193. Subsection (1) of section 737.111,
26 Florida Statutes, is amended to read:
27 737.111 Execution requirements for express trusts.--
28 (1) The testamentary aspects of a trust defined in s.
29 731.201(34)(33), are invalid unless the trust instrument is
30 executed by the grantor settlor with the formalities required
31 for the execution of a will.
196
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Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 Section 194. In editing manuscript for the next
2 official version of the Florida Statutes, the Division of
3 Statutory Revision of the Office of Legislative Services is
4 directed to:
5 (1) Change the title of Part II of Chapter 732,
6 Florida Statutes, from "Elective Share of Surviving Spouse" to
7 "Elective Share of Surviving Spouse; Rights in Community
8 Property."
9 (2) Change the title of Part III of Chapter 733,
10 Florida Statutes, from "Priority to Administer and
11 Qualifications of Personal Representative" to "Preference in
12 Appointment and Qualifications of Personal Representative."
13 (3) Change the title of Part IV of Chapter 733,
14 Florida Statutes, from "Appointment of Personal
15 Representative; Bonds" to "Fiduciary Bonds."
16 (4) Change the title of Part V of Chapter 733, Florida
17 Statutes, from "Curators; Successor Personal Representative;
18 Removal" to "Curators; Resignation and Removal of Personal
19 Representatives."
20
21
22 ================ T I T L E A M E N D M E N T ===============
23 And the title is amended as follows:
24 Delete everything before the enacting clause
25
26 and insert:
27 A bill to be entitled
28 An act relating to probate; amending s. 63.172,
29 F.S.; providing for the right of inheritance
30 with respect to adoption; amending s. 409.9101,
31 F.S.; revising language with respect to
197
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Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 recovery of payments made on behalf of certain
2 Medicaid-eligible persons; amending s. 655.936,
3 F.S., relating to the opening of a decedent's
4 safe-deposit box; amending s. 731.005, F.S.,
5 relating to the Florida Probate Code; amending
6 s. 731.011, F.S.; providing reference to the
7 Florida Probate Rules with respect to the
8 determination of substantive rights under the
9 Florida Probate Code; amending s. 731.104,
10 F.S.; revising language with respect to the
11 verification of documents; amending s. 731.106,
12 F.S., relating to the assets of
13 nondomiciliaries; repealing s. 731.107, F.S.,
14 relating to adversary proceedings; amending s.
15 731.110, F.S.; revising language with respect
16 to proceedings concerning caveat; repealing s.
17 731.111, F.S., relating to notice to creditors;
18 amending s. 731.201, F.S.; revising general
19 definitions with respect to the Florida Probate
20 Code; amending s. 731.301, F.S.; revising
21 language with respect to notice; amending s.
22 731.303, F.S., relating to representation;
23 amending s. 732.101, F.S., relating to
24 intestate estates; amending s. 732.102, F.S.;
25 revising language with respect to the share of
26 the spouse; increasing the monetary amount of
27 certain shares; amending s. 732.103, F.S.,
28 relating to the share of certain heirs;
29 amending s. 732.107, F.S.; clarifying
30 provisions; revising a filing date; revising
31 certain provisions regarding owner's
198
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Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 representation; amending s. 732.1101, F.S.;
2 providing that aliens shall have the same right
3 of inheritance as citizens; amending s.
4 732.2025, F.S.; redefining the term "qualifying
5 special needs trust" or "supplemental needs
6 trust"; amending s. 732.2035, F.S.; redefining
7 the term "decedent's ownership interest";
8 amending s. 732.2045, F.S.; adding an exclusion
9 to the elective share for property that is part
10 of the protected homestead; amending s.
11 732.2055, F.S.; redefining "value" for purposes
12 of calculating the elective estate; amending s.
13 732.2075, F.S.; revising the formula for
14 payment of the elective share; amending s.
15 732.2085, F.S.; adding a cross reference;
16 amending s. 732.2095, F.S.; correcting a cross
17 reference; modifying the formula for
18 determining the fair market value of assets
19 regarding the elective share; amending s.
20 732.2105, F.S.; revising the effect of an
21 elective share election on other estate
22 interests; amending s. 732.2125, F.S.; revising
23 language with respect to the right of election;
24 amending s. 732.2135, F.S.; revising language
25 with respect to time of election, extensions,
26 and withdrawal; amending s. 732.2145, F.S.;
27 revising language with respect to the order of
28 contribution; amending s. 732.2155, F.S.;
29 revising language with respect to the effective
30 date of certain trusts; providing for
31 applicability of certain provisions under
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Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 specified circumstances; amending s. 732.218,
2 F.S.; revising language with respect to
3 rebuttable presumptions; amending s. 732.219,
4 F.S., relating to disposition upon death;
5 amending s. 732.221, F.S.; revising language
6 with respect to perfection of title of personal
7 representative or beneficiary; amending s.
8 732.222, F.S., relating to the purchaser for
9 value or lender; amending s. 732.223, F.S.;
10 revising language with respect to perfection of
11 title of surviving spouse; amending s. 732.302,
12 F.S.; revising language with respect to
13 pretermitted children; amending s. 732.401,
14 F.S.; revising language with respect to descent
15 of homestead; amending s. 732.4015, F.S.;
16 revising language with respect to the
17 definition of "owner" and "devise" concerning
18 homestead; amending s. 732.402, F.S.; revising
19 language with respect to exempt property;
20 amending s. 732.403, F.S.; revising language
21 with respect to family allowance; amending s.
22 732.501, F.S.; revising language with respect
23 to who may make a will; amending s. 732.502,
24 F.S.; revising language with respect to
25 execution of wills; amending s. 732.503, F.S.;
26 revising language with respect to self-proof of
27 will; amending s. 732.505, F.S.; revising
28 language with respect to revocation by writing;
29 amending s. 732.507, F.S.; revising language
30 with respect to effect of subsequent marriage,
31 birth, or dissolution of marriage; amending s.
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SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 732.513, F.S.; revising language with respect
2 to devises to trustees; amending s. 732.514,
3 F.S., relating to vesting of devises; amending
4 s. 732.515, F.S.; revising language with
5 respect to separate writing identifying devises
6 of tangible property; amending s. 732.6005,
7 F.S., relating to rules of construction and
8 intention; amending s. 732.601, F.S.; revising
9 language with respect to the Simultaneous Death
10 Law; amending s. 732.603, F.S.; revising
11 language with respect to antilapse, deceased
12 devises, and class gifts; amending s. 732.604,
13 F.S., relating to the failure of a testamentary
14 provision; amending s. 732.605, F.S., relating
15 to change in securities, accessions, and
16 nonademption; amending s. 732.606, F.S.,
17 relating to nonademption of specific devises in
18 certain cases; amending s. 732.701, F.S.;
19 providing for agreements concerning succession
20 executed by a nonresident under certain
21 circumstances; amending s. 732.702, F.S.;
22 revising language with respect to waiver of
23 spousal rights; amending s. 732.801, F.S.;
24 revising language with respect to disclaimer of
25 interests in property passing by will or
26 intestate succession or under certain powers of
27 appointment; amending s. 732.804, F.S.;
28 providing for provisions relating to
29 disposition of the body; amending s. 732.901,
30 F.S., relating to production of wills;
31 eliminating language with respect to willful
201
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Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 failure to deposit the will; transferring,
2 amending, and renumbering ss. 732.910, 732.911,
3 732.912, 732.913, 732.914, 732.915, 732.916,
4 732.917, 732.918, 732.9185, 732.919, 732.921,
5 732.9215, 732.92155, 732.9216, and 732.922,
6 F.S.; correcting cross references; amending ss.
7 381.004 and 381.0041, F.S.; correcting cross
8 references; amending s. 733.101, F.S., relating
9 to the venue of probate proceedings; amending
10 s. 733.103, F.S., relating to the effect of
11 probate; amending s. 733.104, F.S.; revising
12 language with respect to the suspension of the
13 statute of limitations in favor of the personal
14 representative; amending s. 733.105, F.S.;
15 revising language with respect to the
16 determination of beneficiaries; amending s.
17 733.106, F.S.; revising language with respect
18 to costs and attorney fees; amending s.
19 733.107, F.S., relating to the burden of proof
20 in contests; amending s. 733.109, F.S.;
21 revising language with respect to the
22 revocation of probate; amending s. 733.201,
23 F.S., relating to proof of wills; amending s.
24 733.202, F.S.; providing that any interested
25 person may petition for administration;
26 repealing s. 733.203, F.S., relating to when
27 notice is required; amending s. 733.204, F.S.;
28 revising language with respect to the probate
29 of a will written in a foreign language;
30 amending s. 733.205, F.S., relating to the
31 probate of a notarial will; amending s.
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Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 733.206, F.S., relating to the probate of a
2 resident after foreign probate; amending s.
3 733.207, F.S.; revising requirements with
4 respect to the establishment and probate of a
5 lost or destroyed will; amending s. 733.208,
6 F.S.; revising language with respect to the
7 discovery of a later will; amending s. 733.209,
8 F.S.; providing requirements with respect to
9 the estates of missing persons; amending s.
10 733.212, F.S.; revising language with respect
11 to the notice of administration and filing of
12 objections; creating s. 733.2121, F.S.;
13 providing for notice to creditors and the
14 filing of claims; amending s. 733.2123, F.S.,
15 relating to adjudication before issuance of
16 letters; amending s. 733.213, F.S.; providing
17 that a will may not be construed until after it
18 has been admitted to probate; amending s.
19 733.301, F.S.; revising language with respect
20 to preference in the appointment of the
21 personal representative; amending s. 733.302,
22 F.S.; revising language with respect to who may
23 be appointed personal representative; amending
24 s. 733.305, F.S., relating to trust companies
25 and other corporations and associations;
26 amending s. 733.306, F.S.; revising language
27 with respect to the effect of the appointment
28 of a debtor; amending s. 733.307, F.S.,
29 relating to succession of administration;
30 amending s. 733.308, F.S., relating to the
31 administrator ad litem; amending s. 733.309,
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SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 F.S., relating to the executor de son tort;
2 creating s. 733.310, F.S.; providing for when a
3 personal representative is not qualified;
4 repealing s. 733.401, F.S., relating to the
5 issuance of letters; amending s. 733.402, F.S.;
6 revising language with respect to the bond of a
7 fiduciary; amending s. 733.403, F.S.; revising
8 language with respect to the amount of the
9 bond; amending s. 733.404, F.S., relating to
10 the liability of the surety; amending s.
11 733.405, F.S.; revising language with respect
12 to the release of surety; amending s. 733.406,
13 F.S.; revising language with respect to bond
14 premium allowable as an expense of
15 administration; amending s. 733.501, F.S.;
16 revising language with respect to curators;
17 amending s. 733.502, F.S.; revising language
18 with respect to the resignation of the personal
19 representative; amending s. 733.503, F.S.;
20 providing for the appointment of a successor
21 upon the resignation of the personal
22 representative; creating s. 733.5035, F.S.;
23 providing for the surrender of assets after
24 resignation; creating s. 733.5036, F.S.;
25 providing for accounting and discharge
26 following resignation; amending s. 733.504,
27 F.S.; revising language with respect to the
28 removal of the personal representative;
29 amending s. 733.505, F.S.; providing that a
30 petition for removal shall be filed in the
31 court having jurisdiction of the
204
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SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 administration; amending s. 733.506, F.S.;
2 revising language with respect to proceedings
3 for removal; creating s. 733.5061, F.S.;
4 providing for the appointment of a successor
5 upon removal of the personal representative;
6 repealing s. 733.507, F.S., relating to
7 administration following resignation or
8 removal; amending s. 733.508, F.S.; providing
9 for accounting and discharge upon removal;
10 amending s. 733.509, F.S.; revising language
11 with respect to surrender of assets upon
12 removal; amending s. 733.601, F.S.; revising
13 language with respect to time of accrual of
14 duties and powers; amending s. 733.602, F.S.,
15 relating to the general duties of a personal
16 representative; amending s. 733.603, F.S.,
17 relating to when a personal representative may
18 proceed without court order; amending s.
19 733.604, F.S.; revising language with respect
20 to inventory; repealing s. 733.605, F.S.,
21 relating to appraisers; creating s. 733.6065,
22 F.S.; providing for the opening of a
23 safe-deposit box; amending s. 733.607, F.S.;
24 revising language with respect to the
25 possession of the estate; amending s. 733.608,
26 F.S.; revising language with respect to the
27 general power of the personal representative;
28 amending s. 733.609, F.S.; revising language
29 with respect to improper exercise of power and
30 the breech of fiduciary duty; amending s.
31 733.610, F.S., relating to the sale,
205
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SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 encumbrance, or transaction involving a
2 conflict of interest; amending s. 733.611,
3 F.S.; revising language with respect to persons
4 dealing with the personal representative;
5 amending s. 733.612, F.S.; revising language
6 with respect to transactions authorized for the
7 personal representatives and exceptions
8 thereto; amending s. 733.6121, F.S., relating
9 to powers of the personal representative with
10 respect to environmental or human health laws
11 affecting property subject to administration;
12 amending s. 733.613, F.S.; revising language
13 with respect to the personal representatives'
14 right to sell real property; amending s.
15 733.614, F.S., relating to the powers and
16 duties of a successor personal representative;
17 amending s. 733.615, F.S.; revising language
18 with respect to joint personal representatives;
19 amending s. 733.616, F.S.; revising language
20 with respect to the powers of the surviving
21 personal representatives; amending s. 733.617,
22 F.S.; revising language with respect to
23 compensation of the personal representative;
24 amending s. 733.6171, F.S.; revising language
25 with respect to compensation of the attorney
26 for the personal representative; amending s.
27 733.6175, F.S.; revising language with respect
28 to proceedings for review of employment of
29 agents and compensation of personal
30 representatives and employees of the estate;
31 amending s. 733.619, F.S., relating to the
206
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SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 individual liability of the personal
2 representative; amending s. 733.701, F.S.;
3 revising language with respect to notifying
4 creditors; correcting cross references;
5 amending s. 733.702, F.S.; revising language
6 with respect to limitations on presentation of
7 claims; amending s. 733.703, F.S.; revising
8 language with respect to the form and manner of
9 presenting a claim; amending s. 733.704, F.S.,
10 relating to amendment of claims; amending s.
11 733.705, F.S.; revising language with respect
12 to payment of and objection to claims; amending
13 s. 733.707, F.S.; revising language with
14 respect to the order of payment of expenses and
15 obligations; amending s. 733.708, F.S.;
16 revising language with respect to compromise;
17 amending s. 733.710, F.S., relating to claims
18 against estates; amending s. 733.801, F.S.;
19 providing that the personal representative
20 shall pay as an expense of administration
21 certain costs; amending s. 733.802, F.S.;
22 revising language with respect to proceedings
23 for compulsory payment of devises or
24 distributive interest; amending s. 733.803,
25 F.S., relating to encumbered property; amending
26 s. 733.805, F.S.; revising language with
27 respect to the order in which assets are
28 appropriated; amending s. 733.806, F.S.,
29 relating to advancement; amending s. 733.808,
30 F.S.; revising language with respect to death
31 benefits and disposition of proceeds; amending
207
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SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 s. 733.809, F.S., relating to right of
2 retainer; amending s. 733.810, F.S.; revising
3 language with respect to distribution in kind
4 and valuation; amending s. 733.811, F.S.;
5 revising language with respect to the right or
6 title of distributee; amending s. 733.812,
7 F.S.; providing for improper distribution or
8 payment and liability of distributee; amending
9 s. 733.813, F.S., relating to protection of the
10 purchaser from the distributee; amending s.
11 733.814, F.S.; revising language with respect
12 to partition for the purpose of distribution;
13 amending s. 733.815, F.S.; providing for
14 private contracts among certain interested
15 persons; amending s. 733.816, F.S., relating to
16 the distribution of unclaimed property held by
17 the personal representative; amending s.
18 733.817, F.S.; revising language with respect
19 to apportionment of estate taxes; amending s.
20 733.901, F.S.; providing requirements with
21 respect to final discharge; amending s.
22 733.903, F.S.; revising language with respect
23 to subsequent administration; amending s.
24 734.101, F.S., relating to the foreign personal
25 representative; amending s. 734.102, F.S.;
26 revising language with respect to ancillary
27 administration; amending s. 734.1025, F.S.;
28 revising language with respect to the
29 nonresident decedent's testate estate with
30 property not exceeding a certain value in this
31 state; providing for the determination of
208
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SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 claims; amending s. 734.104, F.S., relating to
2 foreign wills; amending s. 734.201, F.S.,
3 relating to jurisdiction by act of a foreign
4 personal representative; amending s. 734.202,
5 F.S., relating to jurisdiction by act of
6 decedent; repealing s. 735.101, F.S., relating
7 to family administration and the nature of the
8 proceedings; repealing s. 735.103, F.S.,
9 relating to petition for family administration;
10 repealing s. 735.107, F.S., relating to family
11 administration distribution; amending s.
12 735.201, F.S.; increasing a monetary amount
13 with respect to summary administration;
14 amending s. 735.203, F.S.; revising language
15 with respect to the petition for summary
16 administration; amending s. 735.206, F.S.;
17 revising language with respect to summary
18 administration distribution; amending s.
19 735.2063, F.S.; revising language with respect
20 to notice to creditors; repealing s. 735.209,
21 F.S., relating to joinder of heirs, devisees,
22 or surviving spouse in summary administration;
23 amending s. 735.301, F.S., relating to
24 disposition without administration; amending s.
25 735.302, F.S.; revising language with respect
26 to income tax refunds in certain circumstances;
27 creating s. 737.208, F.S.; prohibiting
28 distribution pending outcome of contest;
29 providing exceptions; amending s. 737.3054,
30 F.S.; revising language with respect to
31 trustee's duty to pay expenses and obligations
209
4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT
Bill No. CS for SB 402
Amendment No. ___ Barcode 192000
1 of grantor's estate; amending s. 737.306, F.S.;
2 revising language with respect to personal
3 liability of trustee; creating s. 737.3061,
4 F.S.; providing for limitation on actions
5 against certain trusts; amending s. 737.308,
6 F.S.; revising language with respect to notice
7 of trust; amending ss. 215.965, 660.46, and
8 737.111, F.S.; correcting cross references;
9 directing the Division of Statutory Revision
10 and Indexing to change the title of certain
11 parts of the Probate Code; providing an
12 effective date.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
210
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