Florida Senate - 2010                                    SB 1544
       
       
       
       By Senator Joyner
       
       
       
       
       18-00562D-10                                          20101544__
    1                        A bill to be entitled                      
    2         An act relating to probate procedures; amending s.
    3         655.934, F.S.; updating terminology relating to a
    4         durable power of attorney; amending s. 655.935, F.S.;
    5         imposing additional duties on the lessor of a safe
    6         deposit box relating to the contents of the box when
    7         the lessee has died; authorizing the lessor to charge
    8         fees for performing such duties; amending s. 731.110,
    9         F.S.; revising requirements relating to filing a
   10         caveat; providing that a caveat may be filed before or
   11         after a person’s death; providing for the expiration
   12         of the caveat; amending s. 731.201, F.S.; revising the
   13         definitions of “formal notice” and “informal notice”;
   14         amending s. 731.301, F.S.; clarifying provisions
   15         relating to notice; amending s. 732.2125, F.S.;
   16         clarifying a provision relating to the right of
   17         election; amending s. 732.401, F.S.; providing that a
   18         decedent’s spouse may elect to take an interest in a
   19         homestead as a tenant in common rather than a life
   20         estate; providing procedures and forms for filing
   21         notice of such election; providing that such election
   22         is irrevocable; providing for the allocation of
   23         expenses relating to the homestead; specifying that
   24         the interests of the decedent’s descendants in the
   25         homestead may not be divested if the spouse’s interest
   26         is disclaimed; amending s. 732.4015, F.S.; providing
   27         that if a spouse’s interest in a homestead has been
   28         disclaimed, the disclaimed interest passes in
   29         accordance with ch. 739, F.S.; creating s. 732.4017,
   30         F.S.; providing for the inter vivios transfer of
   31         homestead property; providing limitations; amending s.
   32         732.608, F.S.; clarifying provisions relating to which
   33         laws apply when determining intestate succession in
   34         certain circumstances; creating s. 732.805, F.S.;
   35         denying certain rights or benefits to a surviving
   36         spouse who procured a marriage by fraud, duress, or
   37         undue influence; providing procedures for challenging
   38         a surviving spouse; providing for the award of costs
   39         and fees; providing a time limitation on bringing such
   40         actions; amending s. 733.2123, F.S.; deleting the
   41         requirement for attaching a copy of a will to a notice
   42         of a petition for administration; amending s. 733.608,
   43         F.S.; specifying the manner for serving notice of the
   44         personal representative’s lien for expenditures and
   45         obligations incurred; amending s. 735.203, F.S.;
   46         clarifying provisions relating to providing notice for
   47         a petition for summary administration; amending s.
   48         736.1102, F.S.; clarifying provisions relating to
   49         which laws apply when determining intestate succession
   50         in certain circumstances; amending s. 744.444, F.S.;
   51         conforming provisions to changes made by the act;
   52         providing an effective date.
   53  
   54  Be It Enacted by the Legislature of the State of Florida:
   55  
   56         Section 1. Section 655.934, Florida Statutes, is amended to
   57  read:
   58         655.934 Effect of lessee’s death or incapacity.—If a lessor
   59  without knowledge of the death or of an order determining the
   60  incapacity of the lessee deals with the lessee’s agent in
   61  accordance with a written power of attorney or a durable family
   62  power of attorney signed by such lessee, the transaction binds
   63  the lessee’s estate and the lessee.
   64         Section 2. Section 655.935, Florida Statutes, is amended to
   65  read:
   66         655.935 Search procedure on death of lessee.—If
   67  satisfactory proof of the death of the lessee is presented, a
   68  lessor shall permit the person named in a court order for that
   69  the purpose, or if no order has been served upon the lessor, the
   70  spouse, a parent, an adult descendant, or a person named as a
   71  personal representative in a copy of a purported will produced
   72  by such person, to open and examine the contents of a safe
   73  deposit box leased or coleased by a decedent, or any documents
   74  delivered by a decedent for safekeeping, in the presence of an
   75  officer of the lessor.; and the lessor,
   76         (1) If so requested by such person, the lessor shall remove
   77  and deliver only shall deliver:
   78         (a)(1) Any writing purporting to be a will of the decedent,
   79  to the court having probate jurisdiction in the county in which
   80  the financial institution is located.
   81         (b)(2) Any writing purporting to be a deed to a burial plot
   82  or to give burial instructions, to the person making the request
   83  for a search.
   84         (c)(3) Any document purporting to be an insurance policy on
   85  the life of the decedent, to the beneficiary named therein.
   86         (2) The officer of the lessor shall make a complete copy of
   87  any document removed and delivered pursuant to this section and
   88  place that copy, together with a memorandum of delivery
   89  identifying the name of the officer, the person to whom the
   90  document was delivered, the purported relationship of the person
   91  to whom the document was delivered, and the date of delivery, in
   92  the safe-deposit box leased or coleased by the decedent.
   93         (3) The lessor may charge reasonable fees to cover costs
   94  incurred pursuant to this section.
   95         (4)No other contents may be removed pursuant to this
   96  section. Access granted pursuant to this section is shall not be
   97  considered the initial opening of the safe-deposit box pursuant
   98  to s. 733.6065 by a personal representative appointed by a court
   99  in this state.
  100         Section 3. Section 731.110, Florida Statutes, is amended to
  101  read:
  102         731.110 Caveat; proceedings.—
  103         (1) Any interested person, including a creditor, who is
  104  apprehensive that an estate, either testate or intestate, will
  105  be administered or that a will may be admitted to probate
  106  without that the person’s knowledge may file a caveat with the
  107  court. The caveat of the interested person, other than a
  108  creditor, may be filed before or after the death of the person
  109  for whom the estate will be, or is being, administered. The
  110  caveat of a creditor may be filed only after the person’s death.
  111         (2) A caveat shall contain the decedent’s social security
  112  number, last known residence address, and date of birth, if they
  113  are known, as identification, a statement of the interest of the
  114  caveator in the estate, the name and specific residence address
  115  of the caveator, and, If the caveator, other than a state
  116  agency, is a nonresident and is not represented by an attorney
  117  admitted to practice in this state who has signed the caveat
  118  nonresident of the county, the caveator must designate
  119  additional name and specific residence address of some person
  120  residing in the county in which the caveat is filed, or office
  121  address of a member of The Florida Bar residing in Florida,
  122  designated as the agent of the caveator, upon whom service may
  123  be made; however, if the caveator is represented by an attorney
  124  admitted to practice in this state who has signed the caveat, it
  125  is not necessary to designate a resident agent.
  126         (3) If When a caveat has been filed by an interested person
  127  other than a creditor, the court may shall not admit a will of
  128  the decedent to probate or appoint a personal representative
  129  until formal notice of the petition for administration has been
  130  served on the caveator or the caveator’s designated agent by
  131  formal notice and the caveator has had the opportunity to
  132  participate in proceedings on the petition, as provided by the
  133  Florida Probate Rules.
  134         (4) A caveat filed before the death of the person for whom
  135  the estate will be administered expires 2 years after filing.
  136         Section 4. Subsections (18) and (22) of section 731.201,
  137  Florida Statutes, are amended to read:
  138         731.201 General definitions.—Subject to additional
  139  definitions in subsequent chapters that are applicable to
  140  specific chapters or parts, and unless the context otherwise
  141  requires, in this code, in s. 409.9101, and in chapters 736,
  142  738, 739, and 744, the term:
  143         (18) “Formal notice” means a form of formal notice that is
  144  described in and served by a method of services provided under
  145  rule 5.040(a) of the Florida Probate Rules.
  146         (22) “Informal notice” or “notice” means a method of
  147  service for pleadings or papers as provided informal notice
  148  under rule 5.040(b) of the Florida Probate Rules.
  149         Section 5. Section 731.301, Florida Statutes, is amended to
  150  read:
  151         731.301 Notice.—
  152         (1) If When notice to an interested person of a petition or
  153  other proceeding is required, the notice shall be given to the
  154  interested person or that person’s attorney as provided in the
  155  code or the Florida Probate Rules.
  156         (2) In a probate proceeding, formal notice is shall be
  157  sufficient to acquire jurisdiction over the person receiving
  158  formal notice to the extent of the person’s interest in the
  159  estate or in the decedent’s protected homestead.
  160         (3) Persons given proper notice of a any proceeding are
  161  shall be bound by all orders entered in that proceeding.
  162         Section 6. Subsection (2) of section 732.2125, Florida
  163  Statutes, is amended to read:
  164         732.2125 Right of election; by whom exercisable.—The right
  165  of election may be exercised:
  166         (2) With approval of the court having jurisdiction of the
  167  probate proceeding by an attorney in fact or a guardian of the
  168  property of the surviving spouse. Before approving the election,
  169  the court shall determine that the election is in as the best
  170  interests of the surviving spouse, during the spouse’s probable
  171  lifetime, require.
  172         Section 7. Section 732.401, Florida Statutes, is amended to
  173  read:
  174         732.401 Descent of homestead.—
  175         (1) If not devised as authorized permitted by law and the
  176  Florida constitution, the homestead shall descend in the same
  177  manner as other intestate property; but if the decedent is
  178  survived by a spouse and one or more descendants, the surviving
  179  spouse shall take a life estate in the homestead, with a vested
  180  remainder to the descendants in being at the time of the
  181  decedent’s death per stirpes.
  182         (2) In lieu of a life estate under subsection (1), the
  183  surviving spouse may elect to take an undivided one-half
  184  interest in the homestead as a tenant in common, with the
  185  remaining undivided one-half interest vesting in the decedent’s
  186  descendants in being at the time of the decedent’s death, per
  187  stirpes.
  188         (a) The right of election may be exercised:
  189         1. By the surviving spouse; or
  190         2. With the approval of a court having jurisdiction of the
  191  real property, by an attorney in fact or guardian of the
  192  property of the surviving spouse. Before approving the election,
  193  the court shall determine that the election is in the best
  194  interests of the surviving spouse during the spouse’s probable
  195  lifetime.
  196         (b) The election must be made within 6 months after the
  197  decedent’s death and during the surviving spouse’s lifetime. The
  198  time for making the election may not be extended except as
  199  provided in paragraph (c).
  200         (c) A petition by an attorney in fact or guardian of the
  201  property for approval to make the election tolls the time for
  202  making the election until 6 months after the decedent’s death or
  203  30 days after the rendition of an order authorizing the
  204  election, whichever occurs last.
  205         (d) Once made, the election is irrevocable.
  206         (e) The election shall be made by filing a notice of
  207  election containing the legal description of the homestead
  208  property for recording in the official record books of the
  209  county or counties where the homestead property is located. The
  210  notice must be in substantially the following form:
  211  
  212                    ELECTION OF SURVIVING SPOUSE                   
  213                   TO TAKE A ONE-HALF INTEREST OF                  
  214              DECEDENT’S INTEREST IN HOMESTEAD PROPERTY            
  215  
  216  STATE OF............
  217  COUNTY OF............
  218  
  219         1. The decedent, ______________, died on ______________. On
  220  the date of the decedent’s death, The decedent was married to
  221  ________________, who survived the decedent.
  222         2. At the time of the decedent’s death, the decedent owned
  223  an interest in real property that the affiant believes to be
  224  homestead property described in s. 14, Article X of the State
  225  Constitution, that real property being in _________County,
  226  Florida, and described as: ...(description of homestead
  227  property)....
  228         3. Affiant elects to take one-half of decedent’s interest
  229  in the homestead as a tenant in common in lieu of a life estate.
  230         4. If affiant is not the surviving spouse, affiant is the
  231  surviving spouse’s attorney in fact or guardian of the property
  232  and an order has been rendered by a court having jurisdiction of
  233  the real property authorizing the undersigned to make this
  234  election.
  235  
  236  ................
  237  ...(Affiant)...
  238  
  239  Sworn to (or affirmed) and subscribed before me this .... day of
  240  ...(month)..., ...(year)..., by ...(affiant)...
  241  
  242  ...(Signature of Notary Public-State of Florida)...
  243  
  244  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  245  
  246  Personally Known OR Produced Identification
  247  ...(Type of Identification Produced)...
  248  
  249         (3) Unless and until an election is made under subsection
  250  (2), expenses relating to the ownership of the homestead shall
  251  be allocated between the surviving spouse, as life tenant, and
  252  the decedent’s descendants, as remaindermen, in accordance with
  253  chapter 738. If an election is made, expenses relating to the
  254  ownership of the homestead shall be allocated between the
  255  surviving spouse and the descendants as tenants in common in
  256  proportion to their respective shares, effective as of the date
  257  the election is filed for recording.
  258         (4) If the surviving spouse’s life estate created in
  259  subsection (1) is disclaimed pursuant to chapter 739, the
  260  interests of the decedent’s descendants may not be divested.
  261         (5)(2)This section does Subsection (1) shall not apply to
  262  property that the decedent and the surviving spouse owned in
  263  tenancy by the entireties or joint tenancy with rights of
  264  survivorship as tenants by the entirety.
  265         Section 8. Subsection (3) is added to section 732.4015,
  266  Florida Statutes, to read:
  267         732.4015 Devise of homestead.—
  268         (3) If an interest in homestead has been devised to the
  269  surviving spouse as authorized by law and the constitution, and
  270  the surviving spouse’s interest is disclaimed, the disclaimed
  271  interest shall pass in accordance with chapter 739.
  272         Section 9. Section 732.4017, Florida Statutes, is created
  273  to read:
  274         732.4017Inter vivos transfer of homestead property.—
  275         (1) If the owner of homestead property transfers an
  276  interest in that property, including a transfer in trust, with
  277  or without consideration, to one or more persons during the
  278  owner’s lifetime, the transfer is not a devise for purposes of
  279  s. 731.201(10) or s. 732.4015, and the interest transferred does
  280  not descend as provided in s. 732.401 if the transferor fails to
  281  retain a power, held in any capacity, acting alone or in
  282  conjunction with any other person, to revoke or revest that
  283  interest in the transferor.
  284         (2) As used in this section, the term “transfer in trust”
  285  refers to a trust under which the transferor of the homestead
  286  property, alone or in conjunction with another person, does not
  287  possess a right of revocation as that term is defined in s.
  288  733.707(3)(e). A power possessed by the transferor which is
  289  exercisable during the transferor’s lifetime to alter the
  290  beneficial use and enjoyment of the interest within a class of
  291  beneficiaries identified only in the trust instrument is not a
  292  right of revocation if the power may not be exercised in favor
  293  of the transferor, the transferor’s creditors, the transferor’s
  294  estate, or the creditors of the transferor’s estate or exercised
  295  to discharge the transferor’s legal obligations. This subsection
  296  does not create an inference that a power not described in this
  297  subsection is a power to revoke or revest an interest in the
  298  transferor.
  299         (3) The transfer of an interest in homestead property
  300  described in subsection (1) may not be treated as a devise of
  301  that interest even if:
  302         (a) The transferor retains a separate legal or equitable
  303  interest in the homestead property, directly or indirectly
  304  through a trust or other arrangement such as a term of years,
  305  life estate, reversion, possibility of reverter, or fractional
  306  fee interest;
  307         (b) The interest transferred does not become a possessory
  308  interest until a date certain or upon a specified event, the
  309  occurrence or nonoccurrence of which does not constitute a power
  310  held by the transferor to revoke or revest the interest in the
  311  transferor, including, without limitation, the death of the
  312  transferor; or
  313         (c) The interest transferred is subject to divestment,
  314  expiration, or lapse upon a date certain or upon a specified
  315  event, the occurrence or nonoccurrence of which does not
  316  constitute a power held by the transferor to revoke or revest
  317  the interest in the transferor, including, without limitation,
  318  survival of the transferor.
  319         (4) It is the intent of the Legislature that this section
  320  clarify existing law.
  321         Section 10. Section 732.608, Florida Statutes, is amended
  322  to read:
  323         732.608 Construction of generic terms.—The laws used to
  324  determine paternity and Adopted persons and persons born out of
  325  wedlock are included in class gift terminology and terms of
  326  relationship, in accordance with rules for determining
  327  relationships for the purposes of intestate succession apply
  328  when determining whether class gift terminology and terms of
  329  relationship include adopted persons and persons born out-of
  330  wedlock.
  331         Section 11. Section 732.805, Florida Statutes, is created
  332  to read:
  333         732.805 Spousal rights procured by fraud, duress, or undue
  334  influence.—
  335         (1) A surviving spouse who is found to have procured a
  336  marriage to the decedent by fraud, duress, or undue influence is
  337  not entitled to any of the following rights or benefits that
  338  inure solely by virtue of the marriage or the person’s status as
  339  surviving spouse of the decedent unless both spouses
  340  subsequently ratified the marriage:
  341         (a) Any rights or benefits under the Florida Probate Code,
  342  including, but not limited to, entitlement to elective share or
  343  family allowance; preference in appointment as personal
  344  representative; inheritance by intestacy, homestead, or exempt
  345  property; or inheritance as a pretermitted spouse.
  346         (b) Any rights or benefits under a bond, life insurance
  347  policy, or other contractual arrangement if the decedent is the
  348  principal obligee or the person upon whose life the policy is
  349  issued, unless the surviving spouse is provided for by name,
  350  whether or not designated as the spouse, in the bond, life
  351  insurance policy, or other contractual arrangement.
  352         (c) Any rights or benefits under a will, trust, or power of
  353  appointment, unless the surviving spouse is provided for by
  354  name, whether or not designated as the spouse, in the will,
  355  trust, or power of appointment.
  356         (d) Any immunity from the presumption of undue influence
  357  that a surviving spouse may have under state law.
  358         (2) Any of the rights or benefits listed in paragraphs
  359  (1)(a)-(c) which would have passed solely by virtue of the
  360  marriage to a surviving spouse who is found to have procured the
  361  marriage by fraud, duress, or undue influence shall pass as if
  362  the spouse had predeceased the decedent.
  363         (3) A challenge to a surviving spouse’s rights under this
  364  section may be maintained as a defense, objection, or cause of
  365  action by any interested person after the death of the decedent
  366  in any proceeding in which the fact of marriage may be directly
  367  or indirectly material.
  368         (4) The contestant has the burden of establishing, by a
  369  preponderance of the evidence, that the marriage was procured by
  370  fraud, duress, or undue influence. If ratification of the
  371  marriage is raised as a defense, the surviving spouse has the
  372  burden of establishing, by a preponderance of the evidence, the
  373  subsequent ratification by both spouses.
  374         (5) In all actions brought under this section, the court
  375  shall award taxable costs as in chancery actions, including
  376  attorney’s fees. When awarding taxable costs and attorney’s
  377  fees, the court may direct payment from a party’s interest, if
  378  any, in the estate, or enter a judgment that may be satisfied
  379  from other property of the party, or both.
  380         (6) An insurance company, bank, or other obligor making
  381  payment according to the terms of its policy or obligation is
  382  not liable by reason of this section unless, before payment, it
  383  received at its home office or principal address written notice
  384  of a claim pursuant to this section.
  385         (7) The rights and remedies granted in this section are in
  386  addition to any other rights or remedies a person may have at
  387  law or equity.
  388         (8) Unless sooner barred by adjudication, estoppel, or a
  389  provision of the Florida Probate Code or Florida Probate Rules,
  390  an interested person is barred from bringing an action under
  391  this section unless the action is commenced within 4 years after
  392  the decedent’s date of death. A cause of action under this
  393  section accrues on the decedent’s date of death.
  394         Section 12. Section 733.2123, Florida Statutes, is amended
  395  to read:
  396         733.2123 Adjudication before issuance of letters.—A
  397  petitioner may serve formal notice of the petition for
  398  administration on interested persons. A copy of the will offered
  399  for probate shall be attached to the notice. A No person who is
  400  served with such formal notice before of the petition for
  401  administration prior to the issuance of letters or who has
  402  waived notice may not challenge the validity of the will,
  403  testacy of the decedent, qualifications of the personal
  404  representative, venue, or jurisdiction of the court, except in
  405  the proceedings before issuance of letters.
  406         Section 13. Subsection (4) of section 733.608, Florida
  407  Statutes, is amended to read:
  408         733.608 General power of the personal representative.—
  409         (4) The personal representative’s lien shall attach to the
  410  property and take priority as of the date and time a notice of
  411  that lien is recorded in the official records of the county
  412  where that property is located, and the lien may secure
  413  expenditures and obligations incurred, including, but not
  414  limited to, fees and costs made before or after recording the
  415  notice. The notice of lien may be recorded before adjudicating
  416  prior to the adjudication of the amount of the debt. The notice
  417  of lien also shall also be filed in the probate proceeding, but
  418  failure to do so does shall not affect the validity of the lien.
  419  A copy of the notice of lien shall be served in the manner
  420  provided for service of by formal notice upon each person
  421  appearing to have an interest in the property. The notice of
  422  lien must shall state:
  423         (a) The name and address of the personal representative and
  424  the personal representative’s attorney;
  425         (b) The legal description of the property;
  426         (c) The name of the decedent and also, to the extent known
  427  to the personal representative, the name and address of each
  428  person appearing to have an interest in the property; and
  429         (d) That the personal representative has expended or is
  430  obligated to expend funds to preserve, maintain, insure, and
  431  protect the property and that the lien stands as security for
  432  recovery of those expenditures and obligations incurred,
  433  including, but not limited to, fees and costs.
  434  
  435  Substantial compliance with the foregoing provisions renders
  436  shall render the notice in comportment with this section.
  437         Section 14. Subsections (1) and (3) of section 735.203,
  438  Florida Statutes, are amended to read:
  439         735.203 Petition for summary administration.—
  440         (1) A petition for summary administration may be filed by
  441  any beneficiary or person nominated as personal representative
  442  in the decedent’s will offered for probate. The petition must be
  443  signed and verified by the surviving spouse, if any, and any
  444  beneficiaries except that the joinder in a petition for summary
  445  administration is not required of a beneficiary who will receive
  446  a full distributive share under the proposed distribution.
  447  However, formal notice of the petition must be served on a Any
  448  beneficiary not joining in shall be served by formal notice with
  449  the petition.
  450         (3) If each trustee of a trust that is a beneficiary of the
  451  estate of the deceased person is also a petitioner, formal
  452  notice of the petition for summary administration shall be
  453  served on each qualified beneficiary of the trust as defined in
  454  s. 736.0103 shall be served by formal notice with the petition
  455  for summary administration unless joinder in, or consent to, the
  456  petition is obtained from each qualified beneficiary of the
  457  trust.
  458         Section 15. Section 736.1102, Florida Statutes, is amended
  459  to read:
  460         736.1102 Construction of generic terms.—The laws used to
  461  determine paternity and Adopted persons and persons born out of
  462  wedlock are included in class gift terminology and terms of
  463  relationship, in accordance with rules for determining
  464  relationships for the purposes of intestate succession apply
  465  when determining whether class gift terminology and terms of
  466  relationship include adopted persons and persons born out of
  467  wedlock.
  468         Section 16. Subsection (9) of section 744.444, Florida
  469  Statutes, is amended to read:
  470         744.444 Power of guardian without court approval.—Without
  471  obtaining court approval, a plenary guardian of the property, or
  472  a limited guardian of the property within the powers granted by
  473  the order appointing the guardian or an approved annual or
  474  amended guardianship report, may:
  475         (9) Elect whether to dissent from a will under the
  476  provisions of s. 732.2125(2), seek approval to make an election
  477  in accordance with s. 732.401, or assert any other right or
  478  choice available to a surviving spouse in the administration of
  479  a decedent’s estate.
  480         Section 17. This act shall take effect October 1, 2010.