Senate Bill sb1368e1

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  1                      A bill to be entitled

  2         An act relating to disclaimer of property

  3         interests; creating the Florida Uniform

  4         Disclaimer of Property Interests Act; creating

  5         s. 739.101, F.S.; providing a short title;

  6         creating s. 739.102, F.S.; defining terms;

  7         creating s. 739.103, F.S.; providing the scope

  8         of the act; creating s. 739.104, F.S.;

  9         prescribing general provisions relating to

10         persons' powers to disclaim an interest in or

11         power over property; creating s. 739.201, F.S.;

12         prescribing rules applicable to a disclaimer of

13         an interest in property; creating s. 739.202,

14         F.S.; prescribing rules applicable to a

15         disclaimer of rights of survivorship in jointly

16         held property; creating s. 739.203, F.S.;

17         prescribing rules applicable to a disclaimer of

18         interests in property held as tenancy by the

19         entirety; creating s. 739.204, F.S.;

20         prescribing the effect of a disclaimer of

21         interest by a trustee; creating s. 739.205,

22         F.S.; prescribing rules with respect to a

23         disclaimer of the power of appointment or other

24         power not held in a fiduciary capacity;

25         creating s. 739.206, F.S.; prescribing rules

26         with respect to a disclaimer by the appointee,

27         object, or taker in default of the exercise of

28         power of appointment; creating s. 739.207,

29         F.S.; prescribing rules with respect to the

30         disclaimer of power held in a fiduciary

31         capacity; creating s. 739.301, F.S.; providing


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 1         guidelines for delivering or filing a

 2         disclaimer; creating s. 739.401, F.S.;

 3         providing when a disclaimer is permitted;

 4         creating s. 739.402, F.S.; providing when a

 5         disclaimer is barred or limited; creating s.

 6         739.501, F.S.; prescribing the effect of a

 7         tax-qualified disclaimer; creating s. 739.601,

 8         F.S.; providing for recording a disclaimer

 9         relating to real estate; creating s. 739.701,

10         F.S.; prescribing the application to existing

11         relationships; amending s. 731.201, F.S.;

12         providing applicability of certain definitions

13         to the act; amending ss. 121.091 and 710.121,

14         F.S., to conform; repealing s. 689.21, F.S.,

15         relating to disclaimer of interests in property

16         passing under certain nontestamentary

17         instruments or under certain powers of

18         appointment; repealing s. 732.801, F.S.,

19         relating to disclaimer of interests in property

20         passing by will or intestate succession or

21         under certain powers of appointment; providing

22         an effective date.

23  

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

25  

26         Section 1.  Chapter 739, Florida Statutes, consisting

27  of sections 739.101, 739.102, 739.103, 739.104, 739.201,

28  739.202, 739.203, 739.204, 739.205, 739.206, 739.207, 739.301,

29  739.401, 739.402, 739.501, 739.601, and 739.701, Florida

30  Statutes, is created to read:

31  


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 1         739.101  Short title.--This chapter may be cited as the

 2  "Florida Uniform Disclaimer of Property Interests Act."

 3         739.102  Definitions.--As used in this chapter, the

 4  term:

 5         (1)  "Benefactor" means the creator of the interest

 6  that is subject to a disclaimer.

 7         (2)  "Beneficiary designation" means an instrument,

 8  other than an instrument creating or amending a trust, naming

 9  the beneficiary of:

10         (a)  An annuity or insurance policy;

11         (b)  An account with a designation for payment on

12  death;

13         (c)  A security registered in beneficiary form;

14         (d)  A pension, profit-sharing, retirement, or other

15  employment-related benefit plan; or

16         (e)  Any other nonprobate transfer at death.

17         (3)  "Disclaimant" means the person to whom a

18  disclaimed interest or power would have passed had the

19  disclaimer not been made.

20         (4)  "Disclaimed interest" means the interest that

21  would have passed to the disclaimant had the disclaimer not

22  been made.

23         (5)  "Disclaimer" means the refusal to accept an

24  interest in or power over property. The term includes a

25  renunciation.

26         (6)  "Fiduciary" means a personal representative,

27  trustee, agent acting under a power of attorney, guardian, or

28  other person authorized to act as a fiduciary with respect to

29  the property of another person.

30  

31  


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 1         (7)  "Future interest" means an interest that takes

 2  effect in possession or enjoyment, if at all, later than the

 3  time of its creation.

 4         (8)  "Insolvent" means that the sum of a person's debts

 5  is greater than all of the person's assets at fair valuation.

 6  A person is presumed to be "insolvent" if the person is

 7  generally not paying his or her debts as they become due.

 8         (9)  "Jointly held property" means property held in the

 9  names of two or more persons under an arrangement in which all

10  holders have concurrent interests and under which the last

11  surviving holder is entitled to the whole of the property.

12  Jointly held property does not include property held as

13  tenants by the entirety.

14         (10)  "Person" includes individuals, ascertained and

15  unascertained, living or not living, whether entitled to an

16  interest by right of intestacy or otherwise; a government,

17  governmental subdivision, agency, or instrumentality; and a

18  public corporation.

19         (11)  "Time of distribution" means the time when a

20  disclaimed interest would have taken effect in possession or

21  enjoyment.

22         (12)  "Trust" means:

23         (a)  An express trust (including an honorary trust or a

24  trust under s. 737.116), charitable or noncharitable, with

25  additions thereto, whenever and however created; and

26         (b)  A trust created pursuant to a statute, judgment,

27  or decree which requires the trust be administered in the

28  manner of an express trust.

29  

30  As used in this chapter, the term "trust" does not include a

31  constructive trust or a resulting trust.


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 1         739.103  Scope.--This chapter applies to disclaimers of

 2  any interest in or power over property, whenever created.

 3  Except as provided in s. 739.701, this chapter is the

 4  exclusive means by which a disclaimer may be made under

 5  Florida law.

 6         739.104  Power to disclaim; general requirements; when

 7  irrevocable.--

 8         (1)  A person may disclaim, in whole or in part,

 9  conditionally or unconditionally, any interest in or power

10  over property, including a power or appointment. A person may

11  disclaim the interest or power even if its creator imposed a

12  spendthrift provision or similar restriction on transfer or a

13  restriction or limitation on the right to disclaim. A

14  disclaimer shall be unconditional unless the disclaimant

15  explicitly provides otherwise in the disclaimer.

16         (2)  With court approval, a fiduciary may disclaim, in

17  whole or part, any interest in or power over property,

18  including a power of appointment. Without court approval, a

19  fiduciary may disclaim, in whole or in part, any interest in

20  or power over property, including a power of appointment, if

21  and to the extent that the instrument creating the fiduciary

22  relationship explicitly grants the fiduciary the right to

23  disclaim. In the absence of a court-appointed guardian,

24  notwithstanding anything in chapter 744 to the contrary,

25  without court approval, a natural guardian under s. 744.301

26  may disclaim on behalf of a minor child of the natural

27  guardian, in whole or in part, any interest in or power over

28  property, including a power of appointment, which the minor

29  child is to receive solely as a result of another disclaimer,

30  but only if the disclaimed interest or power does not pass to

31  


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 1  or for the benefit of the natural guardian as a result of the

 2  disclaimer.

 3         (3)  To be effective, a disclaimer must be in writing,

 4  declare the writing as a disclaimer, describe the interest or

 5  power disclaimed, and be signed by the person making the

 6  disclaimer and witnessed and acknowledged in the manner

 7  provided for deeds of real estate to be recorded in this

 8  state. In addition, for a disclaimer to be effective, an

 9  original of the disclaimer must be delivered or filed in the

10  manner provided in s. 739.301.

11         (4)  A partial disclaimer may be expressed as a

12  fraction, percentage, monetary amount, term of years,

13  limitation of a power, or any other interest or estate in the

14  property.

15         (5)  A disclaimer becomes irrevocable when any

16  conditions to which the disclaimant has made the disclaimer

17  subject are satisfied and when the disclaimer is delivered or

18  filed pursuant to s. 739.301 or it becomes effective as

19  provided in ss. 739.201-739.207, whichever occurs later.

20         (6)  A disclaimer made under this chapter is not a

21  transfer, assignment, or release.

22         739.201  Disclaimer of interest in property.--Except

23  for a disclaimer governed by s. 739.202, s. 739.203, or s.

24  739.204, the following rules apply to a disclaimer of an

25  interest in property:

26         (1)  The disclaimer takes effect as of the time the

27  instrument creating the interest becomes irrevocable or, if

28  the interest arose under the law of intestate succession, as

29  of the time of the intestate's death.

30         (2)  The disclaimed interest passes according to any

31  provision in the instrument creating the interest providing


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 1  explicitly for the disposition of the interest, should it be

 2  disclaimed, or of disclaimed interests in general.

 3         (3)  If the instrument does not contain a provision

 4  described in subsection (2), the following rules apply:

 5         (a)  If the disclaimant is an individual, the

 6  disclaimed interest passes as if the disclaimant had died

 7  immediately before the interest was created, unless under the

 8  governing instrument or other applicable law the disclaimed

 9  interest is contingent on surviving to the time of

10  distribution, in which case the disclaimed interest passes as

11  if the disclaimant had died immediately before the time for

12  distribution.  However, if, by law or under the governing

13  instrument, the descendants of the disclaimant would share in

14  the disclaimed interest by any method of representation had

15  the disclaimant died before the time of distribution, the

16  disclaimed interest passes only to the descendants of the

17  disclaimant who survive the time of distribution.  For

18  purposes of this subsection, a disclaimed interest is created

19  at the death of the benefactor or such earlier time, if any,

20  that the benefactor's transfer of the interest is a completed

21  gift for federal gift tax purposes.  Also for purposes of this

22  subsection, a disclaimed interest in a trust described in s.

23  733.707(3) shall pass as if the interest had been created

24  under a will.

25         (b)  If the disclaimant is not an individual, the

26  disclaimed interest passes as if the disclaimant did not

27  exist.

28         (c)  Upon the disclaimer of a preceding interest, a

29  future interest held by a person other than the disclaimant

30  takes effect as if the disclaimant had died or ceased to exist

31  immediately before the time of distribution, but a future


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 1  interest held by the disclaimant is not accelerated in

 2  possession or enjoyment as a result of the disclaimer.

 3         739.202  Disclaimer of rights of survivorship in

 4  jointly held property.--

 5         (1)  Upon the death of a holder of jointly held

 6  property:

 7         (a)  If, during the deceased holder's lifetime, the

 8  deceased holder could have unilaterally regained a portion of

 9  the property attributable to the deceased holder's

10  contributions without the consent of any other holder, another

11  holder may disclaim, in whole or in part, a fractional share

12  of that portion of the property attributable to the deceased

13  holder's contributions determined by dividing the number one

14  by the number of joint holders alive immediately after the

15  death of the holder to whose death the disclaimer relates.

16         (b)  For all other jointly held property, another

17  holder may disclaim, in whole or in part, a fraction of the

18  whole of the property the numerator of which is one and the

19  denominator of which is the product of the number of joint

20  holders alive immediately before the death of the holder to

21  whose death the disclaimer relates multiplied by the number of

22  joint holders alive immediately after the death of the holder

23  to whose death the disclaimer relates.

24         (2)  A disclaimer under subsection (1) takes effect as

25  of the death of the holder of jointly held property to whose

26  death the disclaimer relates.

27         (3)  An interest in jointly held property disclaimed by

28  a surviving holder of the property passes as if the

29  disclaimant predeceased the holder to whose death the

30  disclaimer relates.

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 1         739.203  Disclaimer of property held as tenancy by the

 2  entirety.--

 3         (1)  The survivorship interest in property held as a

 4  tenancy by the entirety to which the survivor succeeds by

 5  operation of law upon the death of the co-tenant may be

 6  disclaimed as provided in this chapter. For purposes of this

 7  chapter only, the deceased tenant's interest in property held

 8  as a tenancy by the entirety shall be deemed to be an

 9  undivided one-half interest.

10         (2)  A disclaimer under subsection (1) takes effect as

11  of the death of the deceased tenant to whose death the

12  disclaimer relates.

13         (3)  The survivorship interest in property held as a

14  tenancy by the entirety disclaimed by the surviving tenant

15  passes as if the disclaimant had predeceased the tenant to

16  whose death the disclaimer relates.

17         (4)  A disclaimer of an interest in real property held

18  as tenants by the entirety does not cause the disclaimed

19  interest to be homestead property for purposes of descent and

20  distribution under ss. 732.401 and 732.4015.

21         739.204  Disclaimer of interest by trustee.--If a

22  trustee having the power to disclaim under the instrument

23  creating the fiduciary relationship or pursuant to court order

24  disclaims an interest in property that otherwise would have

25  become trust property, the interest does not become trust

26  property.

27         739.205  Disclaimer of power of appointment or other

28  power not held in a fiduciary capacity.--If a holder disclaims

29  a power of appointment or other power not held in a fiduciary

30  capacity, the following rules apply:

31  


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 1         (1)  If the holder has not exercised the power, the

 2  disclaimer takes effect as of the time the instrument creating

 3  the power becomes irrevocable.

 4         (2)  If the holder has exercised the power and the

 5  disclaimer is of a power other than a presently exercisable

 6  general power of appointment, the disclaimer takes effect

 7  immediately after the last exercise of the power.

 8         (3)  The instrument creating the power is construed as

 9  if the power expired when the disclaimer became effective.

10         739.206  Disclaimer by appointee, object, or taker in

11  default of exercise of power of appointment.--

12         (1)  A disclaimer of an interest in property by an

13  appointee of a power of appointment takes effect as of the

14  time the instrument by which the holder exercises the power

15  becomes irrevocable.

16         (2)  A disclaimer of an interest in property by an

17  object, or taker in default of an exercise of a power of

18  appointment, takes effect as of the time the instrument

19  creating the power becomes irrevocable.

20         739.207  Disclaimer of power held in fiduciary

21  capacity.--

22         (1)  If a fiduciary disclaims a power held in a

23  fiduciary capacity which has not been exercised, the

24  disclaimer takes effect as of the time the instrument creating

25  the power becomes irrevocable.

26         (2)  If a fiduciary disclaims a power held in a

27  fiduciary capacity which has been exercised, the disclaimer

28  takes effect immediately after the last exercise of the power.

29         (3)  A disclaimer under this section is effective as to

30  another fiduciary if the disclaimer so provides and the

31  


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 1  fiduciary disclaiming has the authority to bind the estate,

 2  trust, or other person for whom the fiduciary is acting.

 3         739.301  Delivery or filing.--

 4         (1)  Subject to subsections (2) through (12), delivery

 5  of a disclaimer may be effected by personal delivery,

 6  first-class mail, or any other method that results in its

 7  receipt. A disclaimer sent by first-class mail shall be deemed

 8  to have been delivered on the date it is postmarked. Delivery

 9  by any other method shall be effective upon receipt by the

10  person to whom the disclaimer is to be delivered under this

11  section.

12         (2)  In the case of a disclaimer of an interest created

13  under the law of intestate succession or an interest created

14  by will, other than an interest in a testamentary trust:

15         (a)  The disclaimer must be delivered to the personal

16  representative of the decedent's estate; or

17         (b)  If no personal representative is serving when the

18  disclaimer is sought to be delivered, the disclaimer must be

19  filed with the clerk of the court in any county where venue of

20  administration would be proper.

21         (3)  In the case of a disclaimer of an interest in a

22  testamentary trust:

23         (a)  The disclaimer must be delivered to the trustee

24  serving when the disclaimer is delivered or, if no trustee is

25  then serving, to the personal representative of the decedent's

26  estate; or

27         (b)  If no personal representative is serving when the

28  disclaimer is sought to be delivered, the disclaimer must be

29  filed with the clerk of the court in any county where venue of

30  administration of the decedent's estate would be proper.

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 1         (4)  In the case of a disclaimer of an interest in an

 2  inter vivos trust:

 3         (a)  The disclaimer must be delivered to the trustee

 4  serving when the disclaimer is delivered;

 5         (b)  If no trustee is then serving, it must be filed

 6  with the clerk of the court in any county where the filing of

 7  a notice of trust would be proper; or

 8         (c)  If the disclaimer is made before the time the

 9  instrument creating the trust becomes irrevocable, the

10  disclaimer must be delivered to the grantor of the revocable

11  trust or the transferor of the interest or to such person's

12  legal representative.

13         (5)  In the case of a disclaimer of an interest created

14  by a beneficiary designation made before the time the

15  designation becomes irrevocable, the disclaimer must be

16  delivered to the person making the beneficiary designation or

17  to such person's legal representative.

18         (6)  In the case of a disclaimer of an interest created

19  by a beneficiary designation made after the time the

20  designation becomes irrevocable, the disclaimer must be

21  delivered to the person obligated to distribute the interest.

22         (7)  In the case of a disclaimer by a surviving holder

23  of jointly held property, or by the surviving tenant in

24  property held as a tenancy by the entirety, the disclaimer

25  must be delivered to the person to whom the disclaimed

26  interest passes or, if such person cannot reasonably be

27  located by the disclaimant, the disclaimer must be delivered

28  as provided in subsection (2).

29         (8)  In the case of a disclaimer by an object, or taker

30  in default of exercise, of a power of appointment at any time

31  after the power was created:


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 1         (a)  The disclaimer must be delivered to the holder of

 2  the power or to the fiduciary acting under the instrument that

 3  created the power; or

 4         (b)  If no fiduciary is serving when the disclaimer is

 5  sought to be delivered, the disclaimer must be filed with a

 6  court having authority to appoint the fiduciary.

 7         (9)  In the case of a disclaimer by an appointee of a

 8  nonfiduciary power of appointment:

 9         (a)  The disclaimer must be delivered to the holder,

10  the personal representative of the holder's estate, or the

11  fiduciary under the instrument that created the power; or

12         (b)  If no fiduciary is serving when the disclaimer is

13  sought to be delivered, the disclaimer must be filed with a

14  court having authority to appoint the fiduciary.

15         (10)  In the case of a disclaimer by a fiduciary of a

16  power over a trust or estate, the disclaimer must be delivered

17  as provided in subsection (2), subsection (3), or subsection

18  (4) as if the power disclaimed were an interest in property.

19         (11)  In the case of a disclaimer of a power

20  exercisable by an agent, other than a power exercisable by a

21  fiduciary over a trust or estate, the disclaimer must be

22  delivered to the principal or the principal's representative.

23         (12)  Notwithstanding subsection (1), delivery of a

24  disclaimer of an interest in or relating to real estate shall

25  be presumed upon the recording of the disclaimer in the office

26  of the clerk of the court of the county or counties where the

27  real estate is located.

28         (13)  A fiduciary or other person having custody of the

29  disclaimed interest is not liable for any otherwise proper

30  distribution or other disposition made without actual notice

31  of the disclaimer or, if the disclaimer is barred under s.


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 1  739.402, for any otherwise proper distribution or other

 2  disposition made in reliance on the disclaimer, if the

 3  distribution or disposition is made without actual knowledge

 4  of the facts constituting the bar of the right to disclaim.

 5         739.401  When disclaimer is permitted.--A disclaimer

 6  may be made at any time unless barred under s. 739.402.

 7         739.402  When disclaimer is barred or limited.--

 8         (1)  A disclaimer is barred by a written waiver of the

 9  right to disclaim.

10         (2)  A disclaimer of an interest in property is barred

11  if any of the following events occur before the disclaimer

12  becomes effective:

13         (a)  The disclaimer accepts the interest sought to be

14  disclaimed;

15         (b)  The disclaimant voluntarily assigns, conveys,

16  encumbers, pledges, or transfers the interest sought to be

17  disclaimed or contracts to do so;

18         (c)  The interest sought to be disclaimed is sold

19  pursuant to a judicial sale; or

20         (d)  The disclaimant is insolvent when the disclaimer

21  becomes irrevocable.

22         (3)  A disclaimer, in whole or in part, of the future

23  exercise of a power held in a fiduciary capacity is not barred

24  by its previous exercise.

25         (4)  A disclaimer, in whole or in part, of the future

26  exercise of a power not held in a fiduciary capacity is not

27  barred by its previous exercise unless the power is

28  exercisable in favor of the disclaimant.

29         (5)  A disclaimer of an interest in, or a power over,

30  property which is barred by this section is ineffective.

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 1         739.501  Tax-qualified disclaimer.--Notwithstanding any

 2  other provision of this chapter, if, as a result of a

 3  disclaimer or transfer, the disclaimed or transferred interest

 4  is treated pursuant to the provisions of s. 2518 of the

 5  Internal Revenue Code of 1986 as never having been transferred

 6  to the disclaimant, the disclaimer or transfer is effective as

 7  a disclaimer under this chapter.

 8         739.601  Recording of disclaimer relating to real

 9  estate.--

10         (1)  A disclaimer of an interest in or relating to real

11  estate does not provide constructive notice to all persons

12  unless the disclaimer contains a legal description of the real

13  estate to which the disclaimer relates and unless the

14  disclaimer is filed for recording in the office of the clerk

15  of the court in the county or counties where the real estate

16  is located.

17         (2)  An effective disclaimer meeting the requirements

18  of subsection (1) constitutes constructive notice to all

19  persons from the time of filing. Failure to record the

20  disclaimer does not affect its validity as between the

21  disclaimant and persons to whom the property interest or power

22  passes by reason of the disclaimer.

23         739.701  Application to existing relationships.--Except

24  as otherwise provided in s. 739.402, an interest in or power

25  over property existing on July 1, 2005, as to which the time

26  for delivering or filing a disclaimer under laws superseded by

27  this chapter has not expired, may be disclaimed after July 1,

28  2005.

29         Section 2.  Section 731.201, Florida Statutes, is

30  amended to read:

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 1         731.201  General definitions.--Subject to additional

 2  definitions in subsequent chapters that are applicable to

 3  specific chapters or parts, and unless the context otherwise

 4  requires, in this code, in s. 409.9101, and in chapters 737,

 5  738, 739, and 744, the term:

 6         (1)  "Authenticated," when referring to copies of

 7  documents or judicial proceedings required to be filed with

 8  the court under this code, means shall mean a certified copy

 9  or a copy authenticated according to the Federal Rules of

10  Civil Procedure.

11         (2)  "Beneficiary" means heir at law in an intestate

12  estate and devisee in a testate estate. The term "beneficiary"

13  does not apply to an heir at law or a devisee after that

14  person's interest in the estate has been satisfied. In the

15  case of a devise to an existing trust or trustee, or to a

16  trust or trustee described by will, the trustee is a

17  beneficiary of the estate. Except as otherwise provided in

18  this subsection, the beneficiary of the trust is not a

19  beneficiary of the estate of which that trust or the trustee

20  of that trust is a beneficiary. However, if each trustee is

21  also a personal representative of the estate, the beneficiary

22  or beneficiaries of the trust as defined in s. 737.303(4)(b)

23  shall be regarded as a beneficiary of the estate.

24         (3)  "Child" includes a person entitled to take as a

25  child under this code by intestate succession from the parent

26  whose relationship is involved, and excludes any person who is

27  only a stepchild, a foster child, a grandchild, or a more

28  remote descendant.

29         (4)  "Claim" means a liability of the decedent, whether

30  arising in contract, tort, or otherwise, and funeral expense.

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 1  The term does not include an expense of administration or

 2  estate, inheritance, succession, or other death taxes.

 3         (5)  "Clerk" means the clerk or deputy clerk of the

 4  court.

 5         (6)  "Court" means the circuit court.

 6         (7)  "Curator" means a person appointed by the court to

 7  take charge of the estate of a decedent until letters are

 8  issued.

 9         (8)  "Devise," when used as a noun, means a

10  testamentary disposition of real or personal property and,

11  when used as a verb, means to dispose of real or personal

12  property by will or trust.  The term includes "gift," "give,"

13  "bequeath," "bequest," and "legacy."  A devise is subject to

14  charges for debts, expenses, and taxes as provided in this

15  code, the will, or the trust.

16         (9)  "Devisee" means a person designated in a will or

17  trust to receive a devise. Except as otherwise provided in

18  this subsection, in the case of a devise to an existing trust

19  or trustee, or to a trust or trustee of a trust described by

20  will, the trust or trustee, rather than the beneficiaries of

21  the trust, is the devisee. However, if each trustee is also a

22  personal representative of the estate, the beneficiary or

23  beneficiaries of the trust as defined in s. 737.303(4)(b)

24  shall be regarded as a devisee.

25         (10)  "Distributee" means a person who has received

26  estate property from a personal representative or other

27  fiduciary other than as a creditor or purchaser. A

28  testamentary trustee is a distributee only to the extent of

29  distributed assets or increments to them remaining in the

30  trustee's hands.  A beneficiary of a testamentary trust to

31  whom the trustee has distributed property received from a


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    CS for SB 1368                                 First Engrossed



 1  personal representative is a distributee. For purposes of this

 2  provision, "testamentary trustee" includes a trustee to whom

 3  assets are transferred by will, to the extent of the devised

 4  assets.

 5         (11)  "Domicile" means a person's usual place of

 6  dwelling and shall be synonymous with residence.

 7         (12)  "Estate" means the property of a decedent that is

 8  the subject of administration.

 9         (13)  "Exempt property" means the property of a

10  decedent's estate which is described in s. 732.402.

11         (14)  "File" means to file with the court or clerk.

12         (15)  "Foreign personal representative" means a

13  personal representative of another state or a foreign country.

14         (16)  "Formal notice" means formal notice under the

15  Florida Probate Rules.

16         (17)  "Grantor" means one who creates or adds to a

17  trust and includes "settlor" or "trustor" and a testator who

18  creates or adds to a trust.

19         (18)  "Heirs" or "heirs at law" means those persons,

20  including the surviving spouse, who are entitled under the

21  statutes of intestate succession to the property of a

22  decedent.

23         (19)  "Incompetent" means a minor or a person

24  adjudicated incompetent.

25         (20)  "Informal notice" or "notice" means informal

26  notice under the Florida Probate Rules.

27         (21)  "Interested person" means any person who may

28  reasonably be expected to be affected by the outcome of the

29  particular proceeding involved. In any proceeding affecting

30  the estate or the rights of a beneficiary in the estate, the

31  personal representative of the estate shall be deemed to be an


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    CS for SB 1368                                 First Engrossed



 1  interested person. In any proceeding affecting the expenses of

 2  the administration and obligations of a decedent's estate, or

 3  any claims described in s. 733.702(1), the trustee of a trust

 4  described in s. 733.707(3) is an interested person in the

 5  administration of the grantor's estate. The term does not

 6  include a beneficiary who has received complete distribution.

 7  The meaning, as it relates to particular persons, may vary

 8  from time to time and must be determined according to the

 9  particular purpose of, and matter involved in, any

10  proceedings.

11         (22)  "Letters" means authority granted by the court to

12  the personal representative to act on behalf of the estate of

13  the decedent and refers to what has been known as letters

14  testamentary and letters of administration. All letters shall

15  be designated "letters of administration."

16         (23)  "Other state" means any state of the United

17  States other than Florida and includes the District of

18  Columbia, the Commonwealth of Puerto Rico, and any territory

19  or possession subject to the legislative authority of the

20  United States.

21         (24)  "Parent" excludes any person who is only a

22  stepparent, foster parent, or grandparent.

23         (25)  "Personal representative" means the fiduciary

24  appointed by the court to administer the estate and refers to

25  what has been known as an administrator, administrator cum

26  testamento annexo, administrator de bonis non, ancillary

27  administrator, ancillary executor, or executor.

28         (26)  "Petition" means a written request to the court

29  for an order.

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31  


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    CS for SB 1368                                 First Engrossed



 1         (27)  "Probate of will" means all steps necessary to

 2  establish the validity of a will and to admit a will to

 3  probate.

 4         (28)  "Property" means both real and personal property

 5  or any interest in it and anything that may be the subject of

 6  ownership.

 7         (29)  "Protected homestead" means the property

 8  described in s. 4(a)(1), Art. X of the State Constitution on

 9  which at the death of the owner the exemption inures to the

10  owner's surviving spouse or heirs under s. 4(b), Art. X of the

11  State Constitution. For purposes of the code, real property

12  owned as tenants by the entirety is not protected homestead.

13         (30)  "Residence" means a person's place of dwelling.

14         (31)  "Residuary devise" means a devise of the assets

15  of the estate which remain after the provision for any devise

16  which is to be satisfied by reference to a specific property

17  or type of property, fund, sum, or statutory amount.  If the

18  will contains no devise which is to be satisfied by reference

19  to a specific property or type of property, fund, sum, or

20  statutory amount, "residuary devise" or "residue" means a

21  devise of all assets remaining after satisfying the

22  obligations of the estate.

23         (32)  "Security" means a security as defined in s.

24  517.021.

25         (33)  "Security interest" means a security interest as

26  defined in s. 671.201.

27         (34)  "Trust" means an express trust, private or

28  charitable, with additions to it, wherever and however

29  created.  It also includes a trust created or determined by a

30  judgment or decree under which the trust is to be administered

31  in the manner of an express trust. "Trust" excludes other


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    CS for SB 1368                                 First Engrossed



 1  constructive trusts, and it excludes resulting trusts;

 2  conservatorships; custodial arrangements pursuant to the

 3  Florida Uniform Transfers to Minors Act; business trusts

 4  providing for certificates to be issued to beneficiaries;

 5  common trust funds; land trusts under s. 689.05; trusts

 6  created by the form of the account or by the deposit agreement

 7  at a financial institution; voting trusts; security

 8  arrangements; liquidation trusts; trusts for the primary

 9  purpose of paying debts, dividends, interest, salaries, wages,

10  profits, pensions, or employee benefits of any kind; and any

11  arrangement under which a person is nominee or escrowee for

12  another.

13         (35)  "Trustee" includes an original, additional,

14  surviving, or successor trustee, whether or not appointed or

15  confirmed by court.

16         (36)  "Will" means an instrument, including a codicil,

17  executed by a person in the manner prescribed by this code,

18  which disposes of the person's property on or after his or her

19  death and includes an instrument which merely appoints a

20  personal representative or revokes or revises another will.

21         Section 3.  Paragraph (b) of subsection (8) of section

22  121.091, Florida Statutes, is amended to read:

23         121.091  Benefits payable under the system.--Benefits

24  may not be paid under this section unless the member has

25  terminated employment as provided in s. 121.021(39)(a) or

26  begun participation in the Deferred Retirement Option Program

27  as provided in subsection (13), and a proper application has

28  been filed in the manner prescribed by the department. The

29  department may cancel an application for retirement benefits

30  when the member or beneficiary fails to timely provide the

31  information and documents required by this chapter and the


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    CS for SB 1368                                 First Engrossed



 1  department's rules. The department shall adopt rules

 2  establishing procedures for application for retirement

 3  benefits and for the cancellation of such application when the

 4  required information or documents are not received.

 5         (8)  DESIGNATION OF BENEFICIARIES.--

 6         (b)  A designated beneficiary of a retirement account

 7  for whom there is a monetary interest may disclaim his or her

 8  monetary interest as provided in chapter 739 s. 689.21, and in

 9  accordance with division rules governing such disclaimers.

10  Such disclaimer must be filed within 24 months after the event

11  that created the interest, that is, the death of the member or

12  annuitant.

13         Section 4.  Subsection (1) of section 710.121, Florida

14  Statutes, is amended to read:

15         710.121  Renunciation, resignation, death, or removal

16  of custodian; designation of successor custodian.--

17         (1)  A person nominated under s. 710.104 or designated

18  under s. 710.111 as custodian may decline to serve by

19  delivering a valid disclaimer under chapter 739 s. 689.21 to

20  the person who made the nomination or to the transferor or the

21  transferor's legal representative.  If the event giving rise

22  to a transfer has not occurred and no substitute custodian

23  able, willing, and eligible to serve was nominated under s.

24  710.104, the person who made the nomination may nominate a

25  substitute custodian under s. 710.104; otherwise, the

26  transferor or the transferor's legal representative shall

27  designate a substitute custodian at the time of the transfer,

28  in either case from among the persons eligible to serve as

29  custodian for that kind of property under s. 710.111(1).  The

30  custodian so designated has the rights of a successor

31  custodian.


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    CS for SB 1368                                 First Engrossed



 1         Section 5.  Sections 689.21 and 732.801, Florida

 2  Statutes, are repealed.

 3         Section 6.  This act shall take effect July 1, 2005.

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