HB 1237

A bill to be entitled
2An act relating to probate procedures; amending s.
3655.934, F.S.; updating terminology relating to a durable
4power of attorney; amending s. 655.935, F.S.; imposing
5additional duties on the lessor of a safe-deposit box
6relating to the contents of the box when the lessee has
7died; authorizing the lessor to charge fees for performing
8such duties; amending s. 731.110, F.S.; revising
9requirements relating to filing a caveat; providing that a
10caveat may be filed before or after a person's death;
11providing for the expiration of the caveat; amending s.
12731.201, F.S.; revising the definitions of "formal notice"
13and "informal notice"; amending s. 731.301, F.S.; revising
14provisions relating to notice; amending s. 732.2125, F.S.;
15revising a provision relating to the right of election;
16amending s. 732.401, F.S.; providing that a decedent's
17spouse may elect to take an interest in a homestead as a
18tenant in common rather than a life estate; providing
19procedures and forms for filing notice of such election;
20providing that such election is irrevocable; providing for
21the allocation of expenses relating to the homestead;
22specifying that the interests of the decedent's
23descendants in the homestead may not be divested if the
24spouse's interest is disclaimed; amending s. 732.4015,
25F.S.; providing that if a spouse's interest in a homestead
26has been disclaimed, the disclaimed interest passes in
27accordance with ch. 739, F.S.; creating s. 732.4017, F.S.;
28providing for the inter vivos transfer of homestead
29property; providing limitations; amending s. 732.608,
30F.S.; revising provisions relating to which laws apply
31when determining intestate succession in certain
32circumstances; creating s. 732.805, F.S.; denying certain
33rights or benefits to a surviving spouse who procured a
34marriage by fraud, duress, or undue influence; providing
35procedures for challenging a surviving spouse; providing
36for the award of costs and fees; providing a time
37limitation on bringing such actions; amending s. 733.2123,
38F.S.; deleting the requirement for attaching a copy of a
39will to a notice of a petition for administration;
40amending s. 733.608, F.S.; specifying the manner for
41serving notice of the personal representative's lien for
42expenditures and obligations incurred; amending s.
43735.203, F.S.; revising provisions relating to providing
44notice for a petition for summary administration; amending
45s. 736.1102, F.S.; clarifying provisions relating to which
46laws apply when determining intestate succession in
47certain circumstances; amending s. 744.444, F.S.;
48conforming provisions to changes made by the act;
49providing an effective date.
51Be It Enacted by the Legislature of the State of Florida:
53     Section 1.  Section 655.934, Florida Statutes, is amended
54to read:
55     655.934  Effect of lessee's death or incapacity.-If a
56lessor without knowledge of the death or of an order determining
57the incapacity of the lessee deals with the lessee's agent in
58accordance with a written power of attorney or a durable family
59power of attorney signed by such lessee, the transaction binds
60the lessee's estate and the lessee.
61     Section 2.  Section 655.935, Florida Statutes, is amended
62to read:
63     655.935  Search procedure on death of lessee.-If
64satisfactory proof of the death of the lessee is presented, a
65lessor shall permit the person named in a court order for that
66the purpose, or if no order has been served upon the lessor, the
67spouse, a parent, an adult descendant, or a person named as a
68personal representative in a copy of a purported will produced
69by such person, to open and examine the contents of a safe-
70deposit box leased or coleased by a decedent, or any documents
71delivered by a decedent for safekeeping, in the presence of an
72officer of the lessor.; and the lessor,
73     (1)  If so requested by such person, the lessor shall
74remove and deliver only shall deliver:
75     (a)(1)  Any writing purporting to be a will of the
76decedent, to the court having probate jurisdiction in the county
77in which the financial institution is located.
78     (b)(2)  Any writing purporting to be a deed to a burial
79plot or to give burial instructions, to the person making the
80request for a search.
81     (c)(3)  Any document purporting to be an insurance policy
82on the life of the decedent, to the beneficiary named therein.
83     (2)  The officer of the lessor shall make a complete copy
84of any document removed and delivered pursuant to this section
85and place that copy, together with a memorandum of delivery
86identifying the name of the officer, the person to whom the
87document was delivered, the purported relationship of the person
88to whom the document was delivered, and the date of delivery, in
89the safe-deposit box leased or coleased by the decedent.
90     (3)  The lessor may charge reasonable fees to cover costs
91incurred pursuant to this section.
92     (4)  No other contents may be removed pursuant to this
93section. Access granted pursuant to this section is shall not be
94considered the initial opening of the safe-deposit box pursuant
95to s. 733.6065 by a personal representative appointed by a court
97     Section 3.  Section 731.110, Florida Statutes, is amended
98to read:
99     731.110  Caveat; proceedings.-
100     (1)  Any interested person, including a creditor, who is
101apprehensive that an estate, either testate or intestate, will
102be administered or that a will may be admitted to probate
103without that the person's knowledge may file a caveat with the
104court. The caveat of the interested person, other than a
105creditor, may be filed before or after the death of the person
106for whom the estate will be, or is being, administered. The
107caveat of a creditor may be filed only after the person's death.
108     (2)  A caveat shall contain the decedent's social security
109number, last known residence address, and date of birth, if they
110are known, as identification, a statement of the interest of the
111caveator in the estate, the name and specific residence address
112of the caveator, and, If the caveator, other than a state
113agency, is a nonresident and is not represented by an attorney
114admitted to practice in this state who has signed the caveat
115nonresident of the county, the caveator must designate
116additional name and specific residence address of some person
117residing in the county in which the caveat is filed, or office
118address of a member of The Florida Bar residing in Florida,
119designated as the agent of the caveator, upon whom service may
120be made; however, if the caveator is represented by an attorney
121admitted to practice in this state who has signed the caveat, it
122is not necessary to designate a resident agent.
123     (3)  If When a caveat has been filed by an interested
124person other than a creditor, the court may shall not admit a
125will of the decedent to probate or appoint a personal
126representative until formal notice of the petition for
127administration has been served on the caveator or the caveator's
128designated agent by formal notice and the caveator has had the
129opportunity to participate in proceedings on the petition, as
130provided by the Florida Probate Rules.
131     (4)  A caveat filed before the death of the person for whom
132the estate will be administered expires 2 years after filing.
133     Section 4.  Subsections (18) and (22) of section 731.201,
134Florida Statutes, are amended to read:
135     731.201  General definitions.-Subject to additional
136definitions in subsequent chapters that are applicable to
137specific chapters or parts, and unless the context otherwise
138requires, in this code, in s. 409.9101, and in chapters 736,
139738, 739, and 744, the term:
140     (18)  "Formal notice" means a form of formal notice that is
141described in and served by a method of services provided under
142rule 5.040(a) of the Florida Probate Rules.
143     (22)  "Informal notice" or "notice" means a method of
144service for pleadings or papers as provided informal notice
145under rule 5.040(b) of the Florida Probate Rules.
146     Section 5.  Section 731.301, Florida Statutes, is amended
147to read:
148     731.301  Notice.-
149     (1)  If When notice to an interested person of a petition
150or other proceeding is required, the notice shall be given to
151the interested person or that person's attorney as provided in
152the code or the Florida Probate Rules.
153     (2)  In a probate proceeding, formal notice is shall be
154sufficient to acquire jurisdiction over the person receiving
155formal notice to the extent of the person's interest in the
156estate or in the decedent's protected homestead.
157     (3)  Persons given proper notice of a any proceeding are
158shall be bound by all orders entered in that proceeding.
159     Section 6.  Subsection (2) of section 732.2125, Florida
160Statutes, is amended to read:
161     732.2125  Right of election; by whom exercisable.-The right
162of election may be exercised:
163     (2)  With approval of the court having jurisdiction of the
164probate proceeding by an attorney in fact or a guardian of the
165property of the surviving spouse. Before approving the election,
166the court shall determine that the election is in as the best
167interests of the surviving spouse, during the spouse's probable
168lifetime, require.
169     Section 7.  Section 732.401, Florida Statutes, is amended
170to read:
171     732.401  Descent of homestead.-
172     (1)  If not devised as authorized permitted by law and the
173Florida constitution, the homestead shall descend in the same
174manner as other intestate property; but if the decedent is
175survived by a spouse and one or more descendants, the surviving
176spouse shall take a life estate in the homestead, with a vested
177remainder to the descendants in being at the time of the
178decedent's death per stirpes.
179     (2)  In lieu of a life estate under subsection (1), the
180surviving spouse may elect to take an undivided one-half
181interest in the homestead as a tenant in common, with the
182remaining undivided one-half interest vesting in the decedent's
183descendants in being at the time of the decedent's death, per
185     (a)  The right of election may be exercised:
186     1.  By the surviving spouse; or
187     2.  With the approval of a court having jurisdiction of the
188real property, by an attorney in fact or guardian of the
189property of the surviving spouse. Before approving the election,
190the court shall determine that the election is in the best
191interests of the surviving spouse during the spouse's probable
193     (b)  The election must be made within 6 months after the
194decedent's death and during the surviving spouse's lifetime. The
195time for making the election may not be extended except as
196provided in paragraph (c).
197     (c)  A petition by an attorney in fact or guardian of the
198property for approval to make the election tolls the time for
199making the election until 6 months after the decedent's death or
20030 days after the rendition of an order authorizing the
201election, whichever occurs last.
202     (d)  Once made, the election is irrevocable.
203     (e)  The election shall be made by filing a notice of
204election containing the legal description of the homestead
205property for recording in the official record books of the
206county or counties where the homestead property is located. The
207notice must be in substantially the following form:
213STATE OF............
214COUNTY OF............
216     1.  The decedent, ______________, died on ______________.
217On the date of the decedent's death, The decedent was married to
218________________, who survived the decedent.
219     2.  At the time of the decedent's death, the decedent owned
220an interest in real property that the affiant believes to be
221homestead property described in s. 14, Article X of the State
222Constitution, that real property being in _________County,
223Florida, and described as: ...(description of homestead
225     3.  Affiant elects to take one-half of decedent's interest
226in the homestead as a tenant in common in lieu of a life estate.
227     4.  If affiant is not the surviving spouse, affiant is the
228surviving spouse's attorney in fact or guardian of the property
229and an order has been rendered by a court having jurisdiction of
230the real property authorizing the undersigned to make this
236Sworn to (or affirmed) and subscribed before me this .... day of
237...(month)..., ...(year)..., by ...(affiant)...
239...(Signature of Notary Public-State of Florida)...
241...(Print, Type, or Stamp Commissioned Name of Notary Public)...
243Personally Known OR Produced Identification
244...(Type of Identification Produced)...
246     (3)  Unless and until an election is made under subsection
247(2), expenses relating to the ownership of the homestead shall
248be allocated between the surviving spouse, as life tenant, and
249the decedent's descendants, as remaindermen, in accordance with
250chapter 738. If an election is made, expenses relating to the
251ownership of the homestead shall be allocated between the
252surviving spouse and the descendants as tenants in common in
253proportion to their respective shares, effective as of the date
254the election is filed for recording.
255     (4)  If the surviving spouse's life estate created in
256subsection (1) is disclaimed pursuant to chapter 739, the
257interests of the decedent's descendants may not be divested.
258     (5)(2)  This section does Subsection (1) shall not apply to
259property that the decedent and the surviving spouse owned in
260tenancy by the entireties or joint tenancy with rights of
261survivorship as tenants by the entirety.
262     Section 8.  Subsection (3) is added to section 732.4015,
263Florida Statutes, to read:
264     732.4015  Devise of homestead.-
265     (3)  If an interest in homestead has been devised to the
266surviving spouse as authorized by law and the constitution, and
267the surviving spouse's interest is disclaimed, the disclaimed
268interest shall pass in accordance with chapter 739.
269     Section 9.  Section 732.4017, Florida Statutes, is created
270to read:
271     732.4017  Inter vivos transfer of homestead property.-
272     (1)  If the owner of homestead property transfers an
273interest in that property, including a transfer in trust, with
274or without consideration, to one or more persons during the
275owner's lifetime, the transfer is not a devise for purposes of
276s. 731.201(10) or s. 732.4015, and the interest transferred does
277not descend as provided in s. 732.401 if the transferor fails to
278retain a power, held in any capacity, acting alone or in
279conjunction with any other person, to revoke or revest that
280interest in the transferor.
281     (2)  As used in this section, the term "transfer in trust"
282refers to a trust under which the transferor of the homestead
283property, alone or in conjunction with another person, does not
284possess a right of revocation as that term is defined in s.
285733.707(3)(e). A power possessed by the transferor which is
286exercisable during the transferor's lifetime to alter the
287beneficial use and enjoyment of the interest within a class of
288beneficiaries identified only in the trust instrument is not a
289right of revocation if the power may not be exercised in favor
290of the transferor, the transferor's creditors, the transferor's
291estate, or the creditors of the transferor's estate or exercised
292to discharge the transferor's legal obligations. This subsection
293does not create an inference that a power not described in this
294subsection is a power to revoke or revest an interest in the
296     (3)  The transfer of an interest in homestead property
297described in subsection (1) may not be treated as a devise of
298that interest even if:
299     (a)  The transferor retains a separate legal or equitable
300interest in the homestead property, directly or indirectly
301through a trust or other arrangement such as a term of years,
302life estate, reversion, possibility of reverter, or fractional
303fee interest;
304     (b)  The interest transferred does not become a possessory
305interest until a date certain or upon a specified event, the
306occurrence or nonoccurrence of which does not constitute a power
307held by the transferor to revoke or revest the interest in the
308transferor, including, without limitation, the death of the
309transferor; or
310     (c)  The interest transferred is subject to divestment,
311expiration, or lapse upon a date certain or upon a specified
312event, the occurrence or nonoccurrence of which does not
313constitute a power held by the transferor to revoke or revest
314the interest in the transferor, including, without limitation,
315survival of the transferor.
316     (4)  It is the intent of the Legislature that this section
317clarify existing law.
318     Section 10.  Section 732.608, Florida Statutes, is amended
319to read:
320     732.608  Construction of generic terms.-The laws used to
321determine paternity and Adopted persons and persons born out of
322wedlock are included in class gift terminology and terms of
323relationship, in accordance with rules for determining
324relationships for the purposes of intestate succession apply
325when determining whether class gift terminology and terms of
326relationship include adopted persons and persons born out-of-
328     Section 11.  Section 732.805, Florida Statutes, is created
329to read:
330     732.805  Spousal rights procured by fraud, duress, or undue
332     (1)  A surviving spouse who is found to have procured a
333marriage to the decedent by fraud, duress, or undue influence is
334not entitled to any of the following rights or benefits that
335inure solely by virtue of the marriage or the person's status as
336surviving spouse of the decedent unless both spouses
337subsequently ratified the marriage:
338     (a)  Any rights or benefits under the Florida Probate Code,
339including, but not limited to, entitlement to elective share or
340family allowance; preference in appointment as personal
341representative; inheritance by intestacy, homestead, or exempt
342property; or inheritance as a pretermitted spouse.
343     (b)  Any rights or benefits under a bond, life insurance
344policy, or other contractual arrangement if the decedent is the
345principal obligee or the person upon whose life the policy is
346issued, unless the surviving spouse is provided for by name,
347whether or not designated as the spouse, in the bond, life
348insurance policy, or other contractual arrangement.
349     (c)  Any rights or benefits under a will, trust, or power
350of appointment, unless the surviving spouse is provided for by
351name, whether or not designated as the spouse, in the will,
352trust, or power of appointment.
353     (d)  Any immunity from the presumption of undue influence
354that a surviving spouse may have under state law.
355     (2)  Any of the rights or benefits listed in paragraphs
356(1)(a)-(c) which would have passed solely by virtue of the
357marriage to a surviving spouse who is found to have procured the
358marriage by fraud, duress, or undue influence shall pass as if
359the spouse had predeceased the decedent.
360     (3)  A challenge to a surviving spouse's rights under this
361section may be maintained as a defense, objection, or cause of
362action by any interested person after the death of the decedent
363in any proceeding in which the fact of marriage may be directly
364or indirectly material.
365     (4)  The contestant has the burden of establishing, by a
366preponderance of the evidence, that the marriage was procured by
367fraud, duress, or undue influence. If ratification of the
368marriage is raised as a defense, the surviving spouse has the
369burden of establishing, by a preponderance of the evidence, the
370subsequent ratification by both spouses.
371     (5)  In all actions brought under this section, the court
372shall award taxable costs as in chancery actions, including
373attorney's fees. When awarding taxable costs and attorney's
374fees, the court may direct payment from a party's interest, if
375any, in the estate, or enter a judgment that may be satisfied
376from other property of the party, or both.
377     (6)  An insurance company, bank, or other obligor making
378payment according to the terms of its policy or obligation is
379not liable by reason of this section unless, before payment, it
380received at its home office or principal address written notice
381of a claim pursuant to this section.
382     (7)  The rights and remedies granted in this section are in
383addition to any other rights or remedies a person may have at
384law or equity.
385     (8)  Unless sooner barred by adjudication, estoppel, or a
386provision of the Florida Probate Code or Florida Probate Rules,
387an interested person is barred from bringing an action under
388this section unless the action is commenced within 4 years after
389the decedent's date of death. A cause of action under this
390section accrues on the decedent's date of death.
391     Section 12.  Section 733.2123, Florida Statutes, is amended
392to read:
393     733.2123  Adjudication before issuance of letters.-A
394petitioner may serve formal notice of the petition for
395administration on interested persons. A copy of the will offered
396for probate shall be attached to the notice. A No person who is
397served with such formal notice before of the petition for
398administration prior to the issuance of letters or who has
399waived notice may not challenge the validity of the will,
400testacy of the decedent, qualifications of the personal
401representative, venue, or jurisdiction of the court, except in
402the proceedings before issuance of letters.
403     Section 13.  Subsection (4) of section 733.608, Florida
404Statutes, is amended to read:
405     733.608  General power of the personal representative.-
406     (4)  The personal representative's lien shall attach to the
407property and take priority as of the date and time a notice of
408that lien is recorded in the official records of the county
409where that property is located, and the lien may secure
410expenditures and obligations incurred, including, but not
411limited to, fees and costs made before or after recording the
412notice. The notice of lien may be recorded before adjudicating
413prior to the adjudication of the amount of the debt. The notice
414of lien also shall also be filed in the probate proceeding, but
415failure to do so does shall not affect the validity of the lien.
416A copy of the notice of lien shall be served in the manner
417provided for service of by formal notice upon each person
418appearing to have an interest in the property. The notice of
419lien must shall state:
420     (a)  The name and address of the personal representative
421and the personal representative's attorney;
422     (b)  The legal description of the property;
423     (c)  The name of the decedent and also, to the extent known
424to the personal representative, the name and address of each
425person appearing to have an interest in the property; and
426     (d)  That the personal representative has expended or is
427obligated to expend funds to preserve, maintain, insure, and
428protect the property and that the lien stands as security for
429recovery of those expenditures and obligations incurred,
430including, but not limited to, fees and costs.
432Substantial compliance with the foregoing provisions renders
433shall render the notice in comportment with this section.
434     Section 14.  Subsections (1) and (3) of section 735.203,
435Florida Statutes, are amended to read:
436     735.203  Petition for summary administration.-
437     (1)  A petition for summary administration may be filed by
438any beneficiary or person nominated as personal representative
439in the decedent's will offered for probate. The petition must be
440signed and verified by the surviving spouse, if any, and any
441beneficiaries except that the joinder in a petition for summary
442administration is not required of a beneficiary who will receive
443a full distributive share under the proposed distribution.
444However, formal notice of the petition must be served on a Any
445beneficiary not joining in shall be served by formal notice with
446the petition.
447     (3)  If each trustee of a trust that is a beneficiary of
448the estate of the deceased person is also a petitioner, formal
449notice of the petition for summary administration shall be
450served on each qualified beneficiary of the trust as defined in
451s. 736.0103 shall be served by formal notice with the petition
452for summary administration unless joinder in, or consent to, the
453petition is obtained from each qualified beneficiary of the
455     Section 15.  Section 736.1102, Florida Statutes, is amended
456to read:
457     736.1102  Construction of generic terms.-The laws used to
458determine paternity and Adopted persons and persons born out of
459wedlock are included in class gift terminology and terms of
460relationship, in accordance with rules for determining
461relationships for the purposes of intestate succession apply
462when determining whether class gift terminology and terms of
463relationship include adopted persons and persons born out of
465     Section 16.  Subsection (9) of section 744.444, Florida
466Statutes, is amended to read:
467     744.444  Power of guardian without court approval.-Without
468obtaining court approval, a plenary guardian of the property, or
469a limited guardian of the property within the powers granted by
470the order appointing the guardian or an approved annual or
471amended guardianship report, may:
472     (9)  Elect whether to dissent from a will under the
473provisions of s. 732.2125(2), seek approval to make an election
474in accordance with s. 732.401, or assert any other right or
475choice available to a surviving spouse in the administration of
476a decedent's estate.
477     Section 17.  This act shall take effect October 1, 2010.

CODING: Words stricken are deletions; words underlined are additions.