Senate Bill sb0720

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    Florida Senate - 2002                                   SB 720

    By Senator Burt





    16-725-02

  1                      A bill to be entitled

  2         An act relating to probate and trusts; amending

  3         s. 732.2075, F.S.; revising provisions

  4         governing sources from which the elective share

  5         is payable; amending s. 733.107, F.S.;

  6         clarifying the circumstances which shift the

  7         burden of proof in certain proceedings

  8         contesting the validity of a will; amending s.

  9         733.702, F.S.; clarifying the limitation on the

10         presentation of claims; creating s. 737.115,

11         F.S.; requiring certain trusts to contain a

12         specified notice; providing an effective date.

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14  Be It Enacted by the Legislature of the State of Florida:

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16         Section 1.  Paragraph (e) of subsection (1) of section

17  732.2075, Florida Statutes, is amended to read:

18         732.2075  Sources from which elective share payable;

19  abatement.--

20         (1)  Unless otherwise provided in the decedent's will

21  or, in the absence of a provision in the decedent's will, in a

22  trust referred to in the decedent's will, the following are

23  applied first to satisfy the elective share:

24         (e)  Property interests included in the elective estate

25  that pass or have passed to or for the benefit of the

26  surviving spouse, including interests that are contingent upon

27  making the election, but only to the extent that such

28  contingent interests do not diminish other property interests

29  that would be applied to satisfy the elective share in the

30  absence of the contingent interests.

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    Florida Senate - 2002                                   SB 720
    16-725-02




  1         Section 2.  Section 733.107, Florida Statutes, is

  2  amended to read:

  3         733.107  Burden of proof in contests; presumption of

  4  undue influence.--

  5         (1)  In all proceedings contesting the validity of a

  6  will, the burden shall be upon the proponent of the will to

  7  establish prima facie its formal execution and attestation.

  8  Thereafter, the contestant shall have the burden of

  9  establishing the grounds on which the probate of the will is

10  opposed or revocation is sought.

11         (2)  The presumption of undue influence which arises

12  when a person who occupies a fiduciary or confidential

13  relationship with a testator is active in procuring a

14  substantial devise or gift in his or her favor under the

15  testator's will implements public policy against abuse of

16  fiduciary or confidential relationships and is therefore a

17  presumption shifting the burden of proof under ss. 90.301

18  through 90.304.

19         Section 3.  Subsection (1) of section 733.702, Florida

20  Statutes, is amended to read:

21         733.702  Limitations on presentation of claims.--

22         (1)  If not barred by s. 733.710, no claim or demand

23  against the decedent's estate that arose before the death of

24  the decedent, including claims of the state and any of its

25  political subdivisions, even if the claims are unmatured,

26  contingent, or unliquidated; no claim for funeral or burial

27  expenses; no claim for personal property in the possession of

28  the personal representative; and no claim for damages,

29  including, but not limited to, an action founded on fraud or

30  another wrongful act or omission of the decedent, is binding

31  on the estate, on the personal representative, or on any

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    Florida Senate - 2002                                   SB 720
    16-725-02




  1  beneficiary unless filed in the probate proceeding on or

  2  before within the later of the date that is 3 months after the

  3  time of the first publication of the notice to creditors or,

  4  as to any creditor required to be served with a copy of the

  5  notice to creditors, 30 days after the date of service on the

  6  creditor, even though the personal representative has

  7  recognized the claim or demand by paying a part of it or

  8  interest on it or otherwise. The personal representative may

  9  settle in full any claim without the necessity of the claim

10  being filed when the settlement has been approved by the

11  interested persons.

12         Section 4.  Section 737.115, Florida Statutes, is

13  created to read:

14         737.115  Notice of trustee duties.--

15         (1)  A trust described in s. 733.707(3) must contain a

16  notice that the trustee may have duties and responsibilities

17  in addition to those described in the instrument creating the

18  trust. The notice may, but need not, read as follows:

19         "The trustee of a trust may have duties and

20         responsibilities in addition to those described

21         in the instrument creating the trust. If you

22         have questions you should obtain legal advice."

23         (2)  The absence of the notice described in this

24  section in the trust instrument does not affect the validity

25  of the trust. A trustee is not relieved of any duty if the

26  notice is not contained in the trust instrument. No person is

27  liable for the failure to include the notice in the trust

28  instrument.

29         (3)  This section applies to all trusts described in s.

30  733.707(3) and amendments to those trusts executed on or after

31  January 1, 2003.

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    Florida Senate - 2002                                   SB 720
    16-725-02




  1         Section 5.  This act shall take effect upon becoming a

  2  law.

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  4            *****************************************

  5                       LEGISLATIVE SUMMARY

  6
      Revises provisions of the probate code governing sources
  7    from which the elective share is payable. Provides that
      the presumption of undue influence in described
  8    circumstances implements public policy against abuse of
      fiduciary or confidential relationship with respect to
  9    wills and is a presumption shifting the burden of proof
      in proceedings contesting the validity of a will.
10    Clarifies the limitations on presentation of claims.
      Requires certain trusts to contain a specified notice.
11    (See bill for details.)

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