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2019 Florida Statutes
Chapter 733
PROBATE CODE: ADMINISTRATION OF ESTATES
PROBATE CODE: ADMINISTRATION OF ESTATES
CHAPTER 733
PROBATE CODE: ADMINISTRATION OF ESTATES
PART I
GENERAL PROVISIONS(ss. 733.101-733.109)
PART II
COMMENCING ADMINISTRATION(ss. 733.201-733.213)
PART III
PREFERENCE IN APPOINTMENT AND QUALIFICATIONS OF PERSONALREPRESENTATIVE
(ss. 733.301-733.3101)
PART IV
FIDUCIARY BONDS(ss. 733.402-733.406)
PART V
CURATORS; RESIGNATION AND REMOVAL OF PERSONALREPRESENTATIVES
(ss. 733.501-733.509)
PART VI
DUTIES AND POWERS OF PERSONALREPRESENTATIVE
(ss. 733.601-733.620)
PART VII
CREDITORS’ CLAIMS(ss. 733.701-733.710)
PART VIII
SPECIAL PROVISIONS FOR DISTRIBUTION(ss. 733.801-733.817)
PART IX
CLOSING ESTATES(ss. 733.901, 733.903)
PART I
GENERAL PROVISIONS733.101 Venue of probate proceedings.
733.103 Effect of probate.
733.104 Suspension of statutes of limitation in favor of the personal representative.
733.105 Determination of beneficiaries.
733.1051 Limited judicial construction of will with federal tax provisions.
733.106 Costs and attorney fees.
733.1061 Fees and costs; will reformation and modification.
733.107 Burden of proof in contests; presumption of undue influence.
733.109 Revocation of probate.
733.101 Venue of probate proceedings.—
(1) The venue for probate of wills and granting letters shall be:
(a) In the county in this state where the decedent was domiciled.
(b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located.
(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.
(2) For the purpose of this section, a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.
(3) Whenever a proceeding is filed laying venue in an improper county, the court may transfer the action in the same manner as provided in the Florida Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected by the improper venue.
History.—s. 1, ch. 74-106; s. 46, ch. 75-220; s. 981, ch. 97-102; s. 78, ch. 2001-226.
Note.—Created from former s. 732.06.
733.103 Effect of probate.—
(1) Until admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.
(2) In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death.
History.—s. 1, ch. 74-106; s. 48, ch. 75-220; s. 17, ch. 77-87; s. 1, ch. 77-174; s. 79, ch. 2001-226.
Note.—Created from former s. 732.26.
733.104 Suspension of statutes of limitation in favor of the personal representative.—
(1) If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, the action may be commenced by that person’s personal representative before the later of the expiration of the time limited for the commencement of the action or 12 months after the decedent’s death.
(2) If a person against whom a cause of action exists dies before the expiration of the time limited for commencement of the action and the cause of action survives, if a claim is timely filed, the expiration of the time limited for commencement of the action shall not apply.
History.—s. 1, ch. 74-106; s. 48, ch. 75-220; s. 1, ch. 77-174; s. 982, ch. 97-102; s. 80, ch. 2001-226.
Note.—Created from former s. 734.27.
733.105 Determination of beneficiaries.—
(1) When property passes by intestate succession or the will is unclear and there is doubt about:
(a) Who is entitled to receive any part of the property, or
(b) The shares and amounts that any person is entitled to receive,
any interested person may petition the court to determine beneficiaries or their shares.
(2) Any personal representative who makes distribution or takes any other action pursuant to an order determining beneficiaries shall be fully protected.
(3) A separate civil action to determine beneficiaries may be brought when an estate has not been administered.
History.—s. 1, ch. 74-106; s. 48, ch. 75-220; s. 226, ch. 77-104; s. 1, ch. 77-174; s. 983, ch. 97-102; s. 81, ch. 2001-226.
Note.—Created from former s. 734.25.
733.1051 Limited judicial construction of will with federal tax provisions.—
(1) Upon the application of a personal representative or a person who is or may be a beneficiary who is affected by the outcome of the construction, a court at any time may construe the terms of a will to define the respective shares or determine beneficiaries, in accordance with the intention of a testator, if a disposition occurs during the applicable period and the will contains a provision that:
(a) Includes a disposition formula referring to the terms “unified credit,” “estate tax exemption,” “applicable exemption amount,” “applicable credit amount,” “applicable exclusion amount,” “generation-skipping transfer tax exemption,” “GST exemption,” “marital deduction,” “maximum marital deduction,” “unlimited marital deduction,” or “maximum charitable deduction”;
(b) Measures a share of an estate based on the amount that may pass free of federal estate tax or the amount that may pass free of federal generation-skipping transfer tax;
(c) Otherwise makes a disposition referring to a charitable deduction, marital deduction, or another provision of federal estate tax or generation-skipping transfer tax law; or
(d) Appears to be intended to reduce or minimize the federal estate tax or generation-skipping transfer tax.
(2) For purposes of this section:
(a) The term “applicable period” means a period beginning January 1, 2010, and ending on the end of the day on the earlier of December 31, 2010, or the day before the date that an act becomes law that repeals or otherwise modifies or has the effect of repealing or modifying s. 901 of the Economic Growth and Tax Relief Reconciliation Act of 2001.
(b) A “disposition occurs” when the testator dies.
(3) In construing the will, the court shall consider the terms and purposes of the will, the facts and circumstances surrounding the creation of the will, and the testator’s probable intent. In determining the testator’s probable intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.
(4) This section does not apply to a disposition that is specifically conditioned upon no federal estate or generation-skipping transfer tax being imposed.
(5)(a) Unless otherwise ordered by the court, during the applicable period and without court order, the personal representative administering a will containing one or more provisions described in subsection (1) may:
1. Delay or refrain from making any distribution.
2. Incur and pay fees and costs reasonably necessary to determine its duties and obligations, including compliance with provisions of existing and reasonably anticipated future federal tax laws.
3. Establish and maintain reserves for the payment of these fees and costs and federal taxes.
(b) The personal representative shall not be liable for its actions as provided in this subsection made or taken in good faith.
(6) The provisions of this section are in addition to, and not in derogation of, rights under the common law to construe a will.
(7) This section is remedial in nature and intended to provide a new or modified legal remedy. This section shall operate retroactively to January 1, 2010.
History.—s. 12, ch. 2010-132.
733.106 Costs and attorney fees.—
(1) In all probate proceedings, costs may be awarded as in chancery actions.
(2) A person nominated as personal representative, or any proponent of a will if the person so nominated does not act within a reasonable time, if in good faith justified in offering the will in due form for probate, shall receive costs and attorney fees from the estate even though probate is denied or revoked.
(3) Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.
(4) If costs and attorney fees are to be paid from the estate under this section, s. 733.6171(4), s. 736.1005, or s. 736.1006, the court, in its discretion, may direct from what part of the estate they shall be paid.
(a) If the court directs an assessment against a person’s part of the estate and such part is insufficient to fully pay the assessment, the court may direct payment from the person’s part of a trust, if any, if a pour-over will is involved and the matter is interrelated with the trust.
(b) All or any part of the costs and attorney fees to be paid from the estate may be assessed against one or more persons’ part of the estate in such proportions as the court finds to be just and proper.
(c) In the exercise of its discretion, the court may consider the following factors:
1. The relative impact of an assessment on the estimated value of each person’s part of the estate.
2. The amount of costs and attorney fees to be assessed against a person’s part of the estate.
3. The extent to which a person whose part of the estate is to be assessed, individually or through counsel, actively participated in the proceeding.
4. The potential benefit or detriment to a person’s part of the estate expected from the outcome of the proceeding.
5. The relative strength or weakness of the merits of the claims, defenses, or objections, if any, asserted by a person whose part of the estate is to be assessed.
6. Whether a person whose part of the estate is to be assessed was a prevailing party with respect to one or more claims, defenses, or objections.
7. Whether a person whose part of the estate is to be assessed unjustly caused an increase in the amount of costs and attorney fees incurred by the personal representative or another interested person in connection with the proceeding.
8. Any other relevant fact, circumstance, or equity.
(d) The court may assess a person’s part of the estate without finding that the person engaged in bad faith, wrongdoing, or frivolousness.
History.—s. 1, ch. 74-106; s. 49, ch. 75-220; s. 984, ch. 97-102; s. 82, ch. 2001-226; s. 1, ch. 2015-27.
Note.—Created from former s. 732.14.
733.1061 Fees and costs; will reformation and modification.—
(1) In a proceeding arising under s. 732.615 or s. 732.616, the court shall award taxable costs as in chancery actions, including attorney’s fees and guardian ad litem fees.
(2) When awarding taxable costs, including attorney’s fees and guardian ad litem fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.
History.—s. 5, ch. 2011-183.
733.107 Burden of proof in contests; presumption of undue influence.—
(1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
(2) In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.
History.—s. 1, ch. 74-106; s. 50, ch. 75-220; s. 83, ch. 2001-226; s. 5, ch. 2002-82; s. 13, ch. 2010-132; s. 3, ch. 2014-127.
Note.—Created from former s. 732.31.
733.109 Revocation of probate.—
(1) A proceeding to revoke the probate of a will shall be brought in the court having jurisdiction over the administration. Any interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123, may commence the proceeding before final discharge of the personal representative.
(2) Pending the determination of any petition for revocation of probate, the personal representative shall proceed with the administration of the estate as if no revocation proceeding had been commenced, except that no distribution may be made to beneficiaries in contravention of the rights of those who, but for the will, would be entitled to the property disposed of.
(3) Revocation of probate of a will shall not affect or impair the title to property purchased in good faith for value from the personal representative prior to an order of revocation.
History.—s. 1, ch. 74-106; s. 50, ch. 75-220; s. 18, ch. 77-87; s. 227, ch. 77-104; s. 84, ch. 2001-226.
Note.—Created from former s. 732.30.
PART II
COMMENCING ADMINISTRATION733.201 Proof of wills.
733.202 Petition.
733.204 Probate of a will written in a foreign language.
733.205 Probate of notarial will.
733.206 Probate of will of resident after foreign probate.
733.207 Establishment and probate of lost or destroyed will.
733.208 Discovery of later will.
733.209 Estates of missing persons.
733.212 Notice of administration; filing of objections.
733.2121 Notice to creditors; filing of claims.
733.2123 Adjudication before issuance of letters.
733.213 Probate as prerequisite to judicial construction of will.
733.201 Proof of wills.—
(1) Self-proved wills executed in accordance with this code may be admitted to probate without further proof. However, a purportedly self-proved electronic will may be admitted to probate only in the manners prescribed in subsections (2) and (3) if the execution of such electronic will, or the acknowledgment by the testator and the affidavits of the witnesses, involves an online notarization in which there was a substantial failure to comply with the procedures set forth in s. 117.265.
(2) A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.
(3) If it appears to the court that the attesting witnesses cannot be found or that they have become incapacitated after the execution of the will or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will as provided in subsection (2), whether or not the nominated personal representative is interested in the estate, or upon the oath of any person having no interest in the estate under the will stating that the person believes the writing exhibited to be the true last will of the decedent.
History.—s. 1, ch. 74-106; s. 51, ch. 75-220; s. 985, ch. 97-102; s. 85, ch. 2001-226; s. 9, ch. 2009-115; s. 38, ch. 2019-71.
Note.—Created from former s. 732.24.
733.202 Petition.—Any interested person may petition for administration.
History.—s. 1, ch. 74-106; s. 52, ch. 75-220; s. 19, ch. 77-87; s. 19, ch. 92-200; s. 986, ch. 97-102; s. 86, ch. 2001-226.
Note.—Created from former s. 732.43.
733.204 Probate of a will written in a foreign language.—
(1) No will written in a foreign language shall be admitted to probate unless it is accompanied by a true and complete English translation.
(2) No personal representative who complies in good faith with the English translation of the will as established by the court shall be liable for doing so.
History.—s. 1, ch. 74-106; s. 54, ch. 75-220; s. 1, ch. 77-174; s. 88, ch. 2001-226.
Note.—Created from former s. 732.34.
733.205 Probate of notarial will.—
(1) When a copy of a notarial will in the possession of a notary entitled to its custody in a foreign state or country, the laws of which state or country require that the will remain in the custody of the notary, duly authenticated by the notary, whose official position, signature, and seal of office are further authenticated by an American consul, vice consul, or other American consular officer within whose jurisdiction the notary is a resident, or whose official position, signature, and seal of office have been authenticated according to the requirements of the Hague Convention of 1961, is presented to the court, it may be admitted to probate if the original could have been admitted to probate in this state.
(2) The duly authenticated copy shall be prima facie evidence of its purported execution and of the facts stated in the certificate in compliance with subsection (1).
(3) Any interested person may oppose the probate of such a notarial will or may petition for revocation of probate of such a notarial will, as in the original probate of a will in this state.
History.—s. 1, ch. 74-106; s. 55, ch. 75-220; s. 89, ch. 2001-226; s. 7, ch. 2003-154.
Note.—Created from former s. 732.37.
733.206 Probate of will of resident after foreign probate.—
(1) If a will of any person who dies a resident of this state is admitted to probate in any other state or country through inadvertence, error, or omission before probate in this state, the will may be admitted to probate in this state if the original could have been admitted to probate in this state.
(2) An authenticated copy of the will, foreign proof of the will, the foreign order of probate, and any letters issued shall be filed instead of the original will and shall be prima facie evidence of its execution and admission to foreign probate.
(3) Any interested person may oppose the probate of the will or may petition for revocation of the probate of the will, as in the original probate of a will in this state.
History.—s. 1, ch. 74-106; s. 56, ch. 75-220; s. 90, ch. 2001-226.
Note.—Created from former s. 732.35.
733.207 Establishment and probate of lost or destroyed will.—Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.
History.—s. 1, ch. 74-106; s. 57, ch. 75-220; s. 91, ch. 2001-226.
Note.—Created from former s. 732.27.
733.208 Discovery of later will.—On the discovery of a later will or codicil, any interested person may petition to revoke the probate of the earlier will or to probate the later will or codicil. No will or codicil may be offered after the testate or intestate estate has been completely administered and the personal representative discharged.
History.—s. 1, ch. 74-106; s. 58, ch. 75-220; s. 92, ch. 2001-226.
Note.—Created from former s. 732.32.
733.209 Estates of missing persons.—Any interested person may petition to administer the estate of a missing person; however, no personal representative shall be appointed until the court determines the missing person is dead.
History.—s. 1, ch. 74-106; s. 93, ch. 2001-226.
Note.—Created from former s. 732.53.
733.212 Notice of administration; filing of objections.—
(1) The personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative:
(a) The decedent’s surviving spouse;
(b) Beneficiaries;
(c) The trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103, if each trustee is also a personal representative of the estate; and
(d) Persons who may be entitled to exempt property
in the manner provided for service of formal notice, unless served under s. 733.2123. The personal representative may similarly serve a copy of the notice on any devisees under a known prior will or heirs or others who claim or may claim an interest in the estate.
(2) The notice shall state:
(a) The name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils.
(b) The name and address of the personal representative and the name and address of the personal representative’s attorney, and that the fiduciary lawyer-client privilege in s. 90.5021 applies with respect to the personal representative and any attorney employed by the personal representative.
(c) That any interested person on whom a copy of the notice of administration is served must file on or before the date that is 3 months after the date of service of a copy of the notice of administration on that person any objection that challenges the validity of the will, the venue, or the jurisdiction of the court. The 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by subsection (3), all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration.
(d) That persons who may be entitled to exempt property under s. 732.402 will be deemed to have waived their rights to claim that property as exempt property unless a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property.
(e) That an election to take an elective share must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or a guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.
(3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred. The 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by this subsection, all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration.
(4) The appointment of a personal representative or a successor personal representative shall not extend or renew the period for filing objections under this section, unless a new will or codicil is admitted.
(5) The personal representative is not individually liable to any person for giving notice under this section, regardless of whether it is later determined that notice was not required by this section. The service of notice in accordance with this section shall not be construed as conferring any right.
(6) If the personal representative in good faith fails to give notice required by this section, the personal representative is not liable to any person for the failure. Liability, if any, for the failure is on the estate.
(7) If a will or codicil is subsequently admitted to probate, the personal representative shall promptly serve a copy of a new notice of administration as required for an initial will admission.
(8) For the purpose of determining deadlines established by reference to the date of service of a copy of the notice of administration in cases in which such service has been waived, service shall be deemed to occur on the date the waiver is filed.
History.—s. 1, ch. 74-106; s. 60, ch. 75-220; s. 227, ch. 77-104; s. 3, ch. 88-340; s. 2, ch. 89-340; s. 2, ch. 90-23; s. 8, ch. 93-257; s. 7, ch. 95-401; s. 191, ch. 99-397; s. 94, ch. 2001-226; s. 8, ch. 2003-154; s. 6, ch. 2006-134; s. 36, ch. 2006-217; s. 8, ch. 2011-183; s. 17, ch. 2013-172; s. 2, ch. 2015-27.
Note.—Created from former s. 732.28.
733.2121 Notice to creditors; filing of claims.—
(1) Unless creditors’ claims are otherwise barred by s. 733.710, the personal representative shall promptly publish a notice to creditors. The notice shall contain the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, the name and address of the personal representative, the name and address of the personal representative’s attorney, and the date of first publication. The notice shall state that creditors must file claims against the estate with the court during the time periods set forth in s. 733.702, or be forever barred.
(2) Publication shall be once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county.
(3)(a) The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors. Impracticable and extended searches are not required. Service is not required on any creditor who has filed a claim as provided in this part, whose claim has been paid in full, or whose claim is listed in a personal representative’s timely filed proof of claim.
(b) The personal representative is not individually liable to any person for giving notice under this section, even if it is later determined that notice was not required. The service of notice to creditors in accordance with this section shall not be construed as admitting the validity or enforceability of a claim.
(c) If the personal representative in good faith fails to give notice required by this section, the personal representative is not liable to any person for the failure. Liability, if any, for the failure is on the estate.
(d) If a decedent at the time of death was 55 years of age or older, the personal representative shall promptly serve a copy of the notice to creditors and provide a copy of the death certificate on the Agency for Health Care Administration within 3 months after the first publication of the notice to creditors, unless the agency has already filed a statement of claim in the estate proceedings.
(e) The personal representative may serve a notice to creditors on the Department of Revenue only when the Department of Revenue is determined to be a creditor under paragraph (a).
(4) Claims are barred as provided in ss. 733.702 and 733.710.
History.—s. 95, ch. 2001-226; s. 9, ch. 2003-154; s. 4, ch. 2005-140; s. 49, ch. 2017-36.
733.2123 Adjudication before issuance of letters.—A petitioner may serve formal notice of the petition for administration on interested persons. A person who is served with such notice before the issuance of letters or who has waived notice may not challenge the validity of the will, testacy of the decedent, venue, or jurisdiction of the court, except in the proceedings before issuance of letters.
History.—s. 60, ch. 75-220; s. 2, ch. 81-27; s. 987, ch. 97-102; s. 96, ch. 2001-226; s. 14, ch. 2010-132; s. 3, ch. 2015-27.
733.213 Probate as prerequisite to judicial construction of will.—A will may not be construed until it has been admitted to probate.
History.—s. 1, ch. 74-106; s. 61, ch. 75-220; s. 97, ch. 2001-226.
Note.—Created from former s. 732.42.
PART III
PREFERENCE IN APPOINTMENT ANDQUALIFICATIONS OF
PERSONAL REPRESENTATIVE
733.301 Preference in appointment of personal representative.
733.302 Who may be appointed personal representative.
733.303 Persons not qualified.
733.304 Nonresidents.
733.305 Trust companies and other corporations and associations.
733.306 Effect of appointment of debtor.
733.307 Succession of administration.
733.308 Administrator ad litem.
733.309 Executor de son tort.
733.3101 Personal representative not qualified.
733.301 Preference in appointment of personal representative.—
(1) In granting letters of administration, the following order of preference shall be observed:
(a) In testate estates:
1. The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.
2. The person selected by a majority in interest of the persons entitled to the estate.
3. A devisee under the will. If more than one devisee applies, the court may select the one best qualified.
(b) In intestate estates:
1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified.
(2) A guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative.
(3) In either a testate or an intestate estate, if no application is made by any of the persons described in subsection (1), the court shall appoint a capable person; but no person may be appointed under this subsection:
(a) Who works for, or holds public office under, the court.
(b) Who is employed by, or holds office under, any judge exercising probate jurisdiction.
(4) After letters have been granted in either a testate or an intestate estate, if a person who was entitled to, and has not waived, preference over the person appointed at the time of the appointment and on whom formal notice was not served seeks the appointment, the letters granted may be revoked and the person entitled to preference may have letters granted after formal notice and hearing.
(5) After letters have been granted in either a testate or an intestate estate, if any will is subsequently admitted to probate, the letters shall be revoked and new letters granted.
History.—s. 1, ch. 74-106; s. 62, ch. 75-220; s. 21, ch. 77-87; s. 1, ch. 77-174; s. 988, ch. 97-102; s. 98, ch. 2001-226.
Note.—Created from former s. 732.44.
733.302 Who may be appointed personal representative.—Subject to the limitations in this part, any person who is sui juris and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to act as personal representative in Florida.
History.—s. 1, ch. 74-106; s. 63, ch. 75-220; s. 5, ch. 79-343; s. 989, ch. 97-102; s. 99, ch. 2001-226.
Note.—Created from former s. 732.45.
733.303 Persons not qualified.—
(1) A person is not qualified to act as a personal representative if the person:
(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
(c) Is under the age of 18 years.
(2) If the person named as personal representative in the will is not qualified, letters shall be granted as provided in s. 733.301.
History.—s. 1, ch. 74-106; s. 63, ch. 75-220; s. 22, ch. 77-87; s. 990, ch. 97-102.
Note.—Created from former s. 732.46.
733.304 Nonresidents.—A person who is not domiciled in the state cannot qualify as personal representative unless the person is:
(1) A legally adopted child or adoptive parent of the decedent;
(2) Related by lineal consanguinity to the decedent;
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
(4) The spouse of a person otherwise qualified under this section.
History.—s. 1, ch. 74-106; s. 63, ch. 75-220; s. 6, ch. 79-343.
Note.—Created from former s. 732.47.
733.305 Trust companies and other corporations and associations.—
(1) All trust companies incorporated under the laws of Florida, all state banking corporations and state savings associations authorized and qualified to exercise fiduciary powers in Florida, and all national banking associations and federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida shall be entitled to act as personal representatives and curators of estates.
(2) When a qualified corporation has been named as a personal representative in a will and subsequently transfers its business and assets to, consolidates or merges with, or is in any manner provided by law succeeded by, another qualified corporation, on the death of the testator, the successor corporation may qualify as personal representative unless the will provides otherwise.
(3) A corporation authorized and qualified to act as a personal representative as a result of merger or consolidation shall succeed to the rights and duties of all predecessor corporations as the personal representative of estates upon filing proof in the court, and without a new appointment. A purchase of substantially all the assets and the assumption of substantially all the liabilities shall be deemed a merger for the purpose of this section.
History.—s. 1, ch. 74-106; s. 63, ch. 75-220; s. 1, ch. 77-174; s. 3, ch. 81-27; s. 100, ch. 2001-226.
Note.—Created from former s. 732.49.
733.306 Effect of appointment of debtor.—The appointment of a debtor as personal representative shall not extinguish the debt due the decedent.
History.—s. 1, ch. 74-106; s. 63, ch. 75-220; s. 101, ch. 2001-226.
Note.—Created from former s. 732.51.
733.307 Succession of administration.—The personal representative of the estate of a deceased personal representative is not authorized to administer the estate of the first decedent. On the death of a sole or surviving personal representative, the court shall appoint a successor personal representative to complete the administration of the estate.
History.—s. 1, ch. 74-106; s. 64, ch. 75-220; s. 102, ch. 2001-226.
Note.—Created from former s. 732.52.
733.308 Administrator ad litem.—When an estate must be represented and the personal representative is unable to do so, the court shall appoint an administrator ad litem without bond to represent the estate in that proceeding. The fact that the personal representative is seeking reimbursement for claims against the decedent does not require appointment of an administrator ad litem.
History.—s. 1, ch. 74-106; s. 65, ch. 75-220; s. 103, ch. 2001-226.
Note.—Created from former s. 732.55.
733.309 Executor de son tort.—No person shall be liable to a creditor of a decedent as executor de son tort, but any person taking, converting, or intermeddling with the property of a decedent shall be liable to the personal representative or curator, when appointed, for the value of all the property so taken or converted and for all damages to the estate caused by the wrongful action. This section shall not be construed to prevent a creditor of a decedent from suing anyone in possession of property fraudulently conveyed by the decedent to set aside the fraudulent conveyance.
History.—s. 1, ch. 74-106; s. 65, ch. 75-220; s. 991, ch. 97-102; s. 104, ch. 2001-226.
733.3101 Personal representative not qualified.—
(1) A personal representative shall resign immediately if the personal representative knows that he or she was not qualified to act at the time of appointment.
(2) Any time a personal representative, who was qualified to act at the time of appointment, knows that he or she would not be qualified for appointment if application for appointment were then made, the personal representative shall promptly file and serve a notice setting forth the reasons. The personal representative’s notice shall state that any interested person may petition to remove the personal representative. An interested person on whom a copy of the personal representative’s notice is served may file a petition requesting the personal representative’s removal within 30 days after the date on which such notice is served.
(3) A personal representative who fails to comply with this section shall be personally liable for costs, including attorney fees, incurred in any removal proceeding if the personal representative is removed. This liability extends to a personal representative who does not know, but should have known, of the facts that would have required him or her to resign under subsection (1) or to file and serve notice under subsection (2). This liability shall be cumulative to any other provided by law.
(4) As used in this section, the term “qualified” means that the personal representative is qualified under ss. 733.302-733.305.
History.—s. 105, ch. 2001-226; s. 4, ch. 2015-27.
PART IV
FIDUCIARY BONDS733.402 Bond of fiduciary; when required; form.
733.403 Amount of bond.
733.404 Liability of surety.
733.405 Release of surety.
733.406 Bond premium allowable as expense of administration.
733.402 Bond of fiduciary; when required; form.—
(1) Unless the bond requirement has been waived by the will or by the court, every fiduciary to whom letters are granted shall execute and file a bond with surety, as defined in s. 45.011, to be approved by the clerk without a service fee. The bond shall be payable to the Governor and the Governor’s successors in office, conditioned on the performance of all duties as personal representative according to law. The bond must be joint and several.
(2) No bond shall be void or invalid because of an informality in it or an informality or illegality in the appointment of the fiduciary. The bond shall have the same force as if the appointment had been legally made and the bond executed in proper form.
(3) The requirements of this section shall not apply to banks and trust companies authorized by law to act as personal representative.
(4) On petition by any interested person or on the court’s own motion, the court may waive the requirement of filing a bond, require a bond, increase or decrease the bond, or require additional surety.
History.—s. 1, ch. 74-106; s. 67, ch. 75-220; s. 24, ch. 77-87; s. 1, ch. 77-174; s. 992, ch. 97-102; s. 107, ch. 2001-226.
Note.—Created from former s. 732.61.
733.403 Amount of bond.—All bonds required by this part shall be in the penal sum that the court deems sufficient after consideration of the gross value of the estate, the relationship of the personal representative to the beneficiaries, exempt property and any family allowance, the type and nature of assets, known creditors, and liens and encumbrances on the assets.
History.—s. 1, ch. 74-106; s. 67, ch. 75-220; s. 108, ch. 2001-226.
Note.—Created from former ss. 732.63, 732.64, 732.66.
733.404 Liability of surety.—No surety for any personal representative or curator shall be charged beyond the value of the assets of an estate because of any omission or mistake in pleading or of false pleading of the personal representative or curator.
History.—s. 1, ch. 74-106; s. 68, ch. 75-220; s. 109, ch. 2001-226.
Note.—Created from former s. 732.65.
733.405 Release of surety.—
(1) Subject to the limitations of this section, on the petition of any interested person, the surety is entitled to be released from liability for the future acts and omissions of the fiduciary.
(2) Pending the hearing of the petition, the court may restrain the fiduciary from acting, except to preserve the estate.
(3) On hearing, the court shall enter an order prescribing the amount of the new bond for the fiduciary and the date when the bond shall be filed. If the fiduciary fails to give the new bond, the fiduciary shall be removed at once, and further proceedings shall be had as in cases of removal.
(4) The original surety shall remain liable in accordance with the terms of its original bond for all acts and omissions of the fiduciary that occur prior to the approval of the new surety and filing and approval of the bond. The new surety shall be liable on its bond only after the filing and approval of the new bond.
History.—s. 1, ch. 74-106; s. 68, ch. 75-220; s. 993, ch. 97-102; s. 110, ch. 2001-226.
Note.—Created from former s. 732.68.
733.406 Bond premium allowable as expense of administration.—A personal representative or other fiduciary required to give bond shall pay the reasonable premium as an expense of administration.
History.—s. 613, ch. 59-205; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 253, 566, ch. 82-243; s. 994, ch. 97-102; s. 111, ch. 2001-226.
Note.—Former s. 627.753.
PART V
CURATORS; RESIGNATION AND REMOVALOF PERSONAL REPRESENTATIVES
733.501 Curators.
733.502 Resignation of personal representative.
733.503 Appointment of successor upon resignation.
733.5035 Surrender of assets after resignation.
733.5036 Accounting and discharge following resignation.
733.504 Removal of personal representative; causes for removal.
733.505 Jurisdiction in removal proceedings.
733.506 Proceedings for removal.
733.5061 Appointment of successor upon removal.
733.508 Accounting and discharge of removed personal representatives upon removal.
733.509 Surrender of assets upon removal.
733.501 Curators.—
(1) When it is necessary, the court may appoint a curator after formal notice to the person apparently entitled to letters of administration. The curator may be authorized to perform any duty or function of a personal representative. If there is great danger that any of the decedent’s property is likely to be wasted, destroyed, or removed beyond the jurisdiction of the court and if the appointment of a curator would be delayed by giving notice, the court may appoint a curator without giving notice.
(2) Bond shall be required of the curator as the court deems necessary. No bond shall be required of banks and trust companies as curators.
(3) Curators shall be allowed reasonable compensation for their services, and the court may consider the provisions of s. 733.617.
(4) Curators shall be subject to removal and surcharge.
History.—s. 1, ch. 74-106; s. 69, ch. 75-220; s. 1, ch. 77-174; s. 995, ch. 97-102; s. 112, ch. 2001-226; s. 108, ch. 2002-1.
Note.—Created from former s. 732.21.
733.502 Resignation of personal representative.—A personal representative may resign. After notice to all interested persons, the court may accept the resignation and then revoke the letters of the resigning personal representative if the interests of the estate are not jeopardized by the resignation. The acceptance of the resignation shall not exonerate the personal representative or the surety from liability.
History.—s. 1, ch. 74-106; s. 69, ch. 75-220; s. 25, ch. 77-87; s. 996, ch. 97-102; s. 113, ch. 2001-226.
Note.—Created from former s. 734.09.
733.503 Appointment of successor upon resignation.—When the personal representative’s resignation is accepted, the court shall appoint a personal representative or shall appoint a curator to serve until a successor personal representative is appointed.
History.—s. 1, ch. 74-106; s. 69, ch. 75-220; s. 997, ch. 97-102; s. 114, ch. 2001-226.
Note.—Created from former s. 734.10.
733.5035 Surrender of assets after resignation.—When the resignation has been accepted by the court, all estate assets, records, documents, papers, and other property of or concerning the estate in the resigning personal representative’s possession or control shall immediately be surrendered to the successor fiduciary. The court may establish the conditions and specify the assets and records, if any, that the resigning personal representative may retain until the final accounting of the resigning personal representative has been approved.
History.—s. 115, ch. 2001-226.
733.5036 Accounting and discharge following resignation.—
(1) A resigning personal representative shall file and serve a final accounting of the personal representative’s administration.
(2) After determination and satisfaction of the liability, if any, of the resigning personal representative, after compensation of the personal representative and the attorney and other persons employed by the personal representative, and upon receipt of evidence that undistributed estate assets have been delivered to the successor fiduciary, the personal representative shall be discharged, the bond released, and the surety discharged.
History.—s. 116, ch. 2001-226.
733.504 Removal of personal representative; causes for removal.—A personal representative shall be removed and the letters revoked if he or she was not qualified to act at the time of appointment. A personal representative may be removed and the letters revoked for any of the following causes:
(1) Adjudication that the personal representative is incapacitated.
(2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.
(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
(5) Wasting or maladministration of the estate.
(6) Failure to give bond or security for any purpose.
(7) Conviction of a felony.
(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.
(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.
(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.
(12) The personal representative was qualified to act at the time of appointment but is not now entitled to appointment.
Removal under this section is in addition to any penalties prescribed by law.
History.—s. 1, ch. 74-106; s. 69, ch. 75-220; s. 1, ch. 77-174; s. 998, ch. 97-102; s. 117, ch. 2001-226; s. 10, ch. 2009-115; s. 5, ch. 2015-27.
Note.—Created from former s. 734.11.
733.505 Jurisdiction in removal proceedings.—A petition for removal shall be filed in the court having jurisdiction of the administration.
History.—s. 1, ch. 74-106; s. 118, ch. 2001-226.
Note.—Created from former s. 734.12.
733.506 Proceedings for removal.—Proceedings for removal of a personal representative may be commenced by the court or upon the petition of an interested person. The court shall revoke the letters of a removed personal representative. The removal of a personal representative shall not exonerate the removed personal representative or the removed personal representative’s surety from any liability.
History.—s. 1, ch. 74-106; s. 71, ch. 75-220; s. 119, ch. 2001-226.
Note.—Created from former s. 734.13.
733.5061 Appointment of successor upon removal.—When a personal representative is removed, the court shall appoint a personal representative or shall appoint a curator to serve until a successor personal representative is appointed.
History.—s. 120, ch. 2001-226.
733.508 Accounting and discharge of removed personal representatives upon removal.—
(1) A removed personal representative shall file and serve a final accounting of that personal representative’s administration.
(2) After determination and satisfaction of the liability, if any, of the removed personal representative, after compensation of that personal representative and the attorney and other persons employed by that personal representative, and upon receipt of evidence that the estate assets have been delivered to the successor fiduciary, the removed personal representative shall be discharged, the bond released, and the surety discharged.
History.—s. 1, ch. 74-106; s. 999, ch. 97-102; s. 122, ch. 2001-226.
Note.—Created from former s. 734.15.
733.509 Surrender of assets upon removal.—Upon entry of an order removing a personal representative, the removed personal representative shall immediately deliver all estate assets, records, documents, papers, and other property of or concerning the estate in the removed personal representative’s possession or control to the remaining personal representative or successor fiduciary.
History.—s. 1, ch. 74-106; s. 73, ch. 75-220; s. 123, ch. 2001-226.
Note.—Created from former s. 734.16.
PART VI
DUTIES AND POWERS OF PERSONALREPRESENTATIVE
733.601 Time of accrual of duties and powers.
733.602 General duties.
733.603 Personal representative to proceed without court order.
733.604 Inventories and accountings; public records exemptions.
733.6065 Opening safe-deposit box.
733.607 Possession of estate.
733.608 General power of the personal representative.
733.609 Improper exercise of power; breach of fiduciary duty.
733.610 Sale, encumbrance, or transaction involving conflict of interest.
733.611 Persons dealing with the personal representative; protection.
733.612 Transactions authorized for the personal representative; exceptions.
733.6121 Personal representative; powers as to environmental issues relating to property subject to administration; liability.
733.613 Personal representative’s right to sell real property.
733.614 Powers and duties of successor personal representative.
733.615 Joint personal representatives; when joint action required.
733.616 Powers of surviving personal representatives.
733.617 Compensation of personal representative.
733.6171 Compensation of attorney for the personal representative.
733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.
733.619 Individual liability of personal representative.
733.620 Exculpation of personal representative.
733.601 Time of accrual of duties and powers.—The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.
History.—s. 1, ch. 74-106; s. 74, ch. 75-220; s. 1000, ch. 97-102; s. 124, ch. 2001-226.
733.602 General duties.—
(1) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.
(2) A personal representative shall not be liable for any act of administration or distribution if the act was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a proceeding challenging intestacy or a proceeding questioning the appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons.
History.—s. 1, ch. 74-106; s. 74, ch. 75-220; s. 27, ch. 77-87; s. 1, ch. 77-174; s. 270, ch. 79-400; s. 3, ch. 89-340; s. 1001, ch. 97-102; s. 125, ch. 2001-226; s. 37, ch. 2006-217; s. 11, ch. 2009-115.
733.603 Personal representative to proceed without court order.—A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified by this code or ordered by the court, shall do so without adjudication, order, or direction of the court. A personal representative may invoke the jurisdiction of the court to resolve questions concerning the estate or its administration.
History.—s. 1, ch. 74-106; s. 1002, ch. 97-102; s. 126, ch. 2001-226.
733.604 Inventories and accountings; public records exemptions.—
(1)(a) Unless an inventory has been previously filed, a personal representative shall file a verified inventory of property of the estate, listing it with reasonable detail and including for each listed item its estimated fair market value at the date of the decedent’s death.
(b)1. Any inventory of an estate, whether initial, amended, or supplementary, filed with the clerk of the court in conjunction with the administration of an estate is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
2. Any inventory of an elective estate, whether initial, amended, or supplementary, filed with the clerk of the court in conjunction with an election made in accordance with part II of chapter 732 is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
3. Any accounting, whether interim, final, amended, or supplementary, filed with the clerk of court in an estate proceeding is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
4. Any inventory or accounting made confidential and exempt by subparagraph 1., subparagraph 2., or subparagraph 3. shall be disclosed by the custodian for inspection or copying:
a. To the personal representative;
b. To the personal representative’s attorney;
c. To an interested person as defined in s. 731.201; or
d. By court order upon a showing of good cause.
5. These exemptions apply to any inventory or accounting filed before, on, or after July 1, 2009.
(2) If the personal representative learns of any property not included in the original inventory, or learns that the estimated value or description indicated in the original inventory for any item is erroneous or misleading, the personal representative shall file a verified amended or supplementary inventory showing any new items and their estimated value at the date of the decedent’s death, or the revised estimated value or description.
(3) Upon written request to the personal representative, a beneficiary shall be furnished a written explanation of how the inventory value for an asset was determined, or, if an appraisal was obtained, a copy of the appraisal, as follows:
(a) To a residuary beneficiary or heir in an intestate estate, regarding all inventoried assets.
(b) To any other beneficiary, regarding all assets distributed or proposed to be distributed to that beneficiary.
The personal representative must notify each beneficiary of that beneficiary’s rights under this subsection. Neither a request nor the failure to request information under this subsection affects any rights of a beneficiary in subsequent proceedings concerning any accounting of the personal representative or the propriety of any action of the personal representative.
History.—s. 1, ch. 74-106; s. 76, ch. 75-220; s. 1, ch. 80-127; s. 4, ch. 84-106; s. 1, ch. 85-72; s. 29, ch. 85-342; s. 68, ch. 87-226; s. 28, ch. 95-401; s. 1003, ch. 97-102; s. 13, ch. 97-240; s. 127, ch. 2001-226; s. 1, ch. 2009-230; s. 1, ch. 2014-82.
Note.—Created from former s. 733.03.
733.6065 Opening safe-deposit box.—
(1) Subject to the provisions of s. 655.936(2), the initial opening of a safe-deposit box that is leased or coleased by the decedent shall be conducted in the presence of any two of the following persons: an employee of the institution where the box is located, the personal representative, or the personal representative’s attorney of record. Each person who is present must verify the contents of the box by signing a copy of the inventory under penalties of perjury. The personal representative shall file the safe-deposit box inventory, together with a copy of the box entry record from a date which is 6 months prior to the date of death to the date of inventory, with the court within 10 days after the box is opened. Unless otherwise ordered by the court, this inventory and the attached box entry record is subject to inspection only by persons entitled to inspect an inventory under s. 733.604(1). The personal representative may remove the contents of the box.
(2) The right to open and examine the contents of a safe-deposit box leased by a decedent, or any documents delivered by a decedent for safekeeping, and to receive items as provided for in s. 655.935 is separate from the rights provided for in subsection (1).
History.—s. 129, ch. 2001-226; s. 7, ch. 2006-134; s. 71, ch. 2006-213.
733.607 Possession of estate.—
(1) Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead, but any real property or tangible personal property may be left with, or surrendered to, the person presumptively entitled to it unless possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration, in any action against the beneficiary for possession of it. The personal representative shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it.
(2) If, after providing for statutory entitlements and all devises other than residuary devises, the assets of the decedent’s estate are insufficient to pay the expenses of the administration and obligations of the decedent’s estate, the personal representative is entitled to payment from the trustee of a trust described in s. 733.707(3), in the amount the personal representative certifies in writing to be required to satisfy the insufficiency, subject to the exclusions and preferences under s. 736.05053. The provisions of s. 733.805 shall apply in determining the amount of any payment required by this section.
History.—s. 1, ch. 74-106; s. 28, ch. 77-87; s. 9, ch. 93-257; s. 9, ch. 95-401; s. 1005, ch. 97-102; s. 130, ch. 2001-226; s. 1, ch. 2010-122.
Note.—Created from former s. 733.01.
733.608 General power of the personal representative.—
(1) All real and personal property of the decedent, except the protected homestead, within this state and the rents, income, issues, and profits from it shall be assets in the hands of the personal representative:
(a) For the payment of devises, family allowance, elective share, estate and inheritance taxes, claims, charges, and expenses of the administration and obligations of the decedent’s estate.
(b) To enforce contribution and equalize advancement.
(c) For distribution.
(2) If property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status. If the personal representative takes possession of that property, any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive.
(3) If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures and obligations incurred, including, but not limited to, fees and costs, shall constitute a debt owed to the personal representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section. The debt shall include any amounts paid for these purposes after the decedent’s death and prior to the personal representative’s appointment to the extent later ratified by the personal representative in the court proceeding provided for in this section.
(a) On the petition of the personal representative or any interested person, the court having jurisdiction of the administration of the decedent’s estate shall adjudicate the amount of the debt after formal notice to the persons appearing to have an interest in the property.
(b) The persons having an interest in the protected homestead shall have no personal liability for the repayment of the above noted debt. The personal representative may enforce payment of the debt through any of the following methods:
1. By foreclosure of the lien as provided in this section;
2. By offset of the debt against any other property in the personal representative’s possession that otherwise would be distributable to any person having an interest in the protected homestead, but only to the extent of the fraction of the total debt owed to the personal representative the numerator of which is the value of that person’s interest in the protected homestead and the denominator of which is the total value of the protected homestead; or
3. By offset of the debt against the revenues from the protected homestead received by the personal representative.
(4) The personal representative’s lien shall attach to the property and take priority as of the date and time a notice of that lien is recorded in the official records of the county where that property is located, and the lien may secure expenditures and obligations incurred, including, but not limited to, fees and costs made before or after recording the notice. The notice of lien may be recorded before adjudicating the amount of the debt. The notice of lien shall also be filed in the probate proceeding, but failure to do so does not affect the validity of the lien. A copy of the notice of lien shall be served in the manner provided for service of formal notice upon each person appearing to have an interest in the property. The notice of lien must state:
(a) The name and address of the personal representative and the personal representative’s attorney;
(b) The legal description of the property;
(c) The name of the decedent and also, to the extent known to the personal representative, the name and address of each person appearing to have an interest in the property; and
(d) That the personal representative has expended or is obligated to expend funds to preserve, maintain, insure, and protect the property and that the lien stands as security for recovery of those expenditures and obligations incurred, including, but not limited to, fees and costs.
Substantial compliance with the foregoing provisions renders the notice in comportment with this section.
(5) The lien shall terminate upon the earliest of:
(a) Recording a satisfaction or release signed by the personal representative in the official records of the county where the property is located;
(b) The discharge of the personal representative when the estate administration is complete;
(c) One year from the recording of the lien in the official records unless a proceeding to determine the debt or enforce the lien has been filed; or
(d) The entry of an order releasing the lien.
(6) Within 14 days after receipt of the written request of any interested person, the personal representative shall deliver to the requesting person at a place designated in the written request an estoppel letter setting forth the unpaid balance of the debt secured by the lien referred to in this section. After complete satisfaction of the debt secured by the lien, the personal representative shall record within 30 days after complete payment, a satisfaction of the lien in the official records of the county where the property is located. If a judicial proceeding is necessary to compel compliance with the provisions of this subsection, the prevailing party shall be entitled to an award of attorney’s fees and costs.
(7) The lien created by this section may be foreclosed in the manner of foreclosing a mortgage under the provisions of chapter 702.
(8) In any action for enforcement of the debt described in this section, the court shall award taxable costs as in chancery actions, including reasonable attorney’s fees.
(9) A personal representative entitled to recover a debt for expenditures and obligations incurred, including, but not limited to, fees and costs, under this section may be relieved of the duty to enforce collection by an order of the court finding:
(a) That the estimated court costs and attorney’s fees in collecting the debt will approximate or exceed the amount of the recovery; or
(b) That it is impracticable to enforce collection in view of the improbability of collection.
(10) A personal representative shall not be liable for failure to attempt to enforce collection of the debt if the personal representative reasonably believes it would have been economically impracticable.
(11) The personal representative shall not be liable for failure to take possession of the protected homestead or to expend funds on its behalf. In the event that the property is determined by the court not to be protected homestead, subsections (2)-(10) shall not apply and any liens previously filed shall be deemed released upon recording of the order in the official records of the county where the property is located.
(12) Upon the petition of an interested party to accommodate a sale or the encumbrance of the protected homestead, the court may transfer the lien provided for in this section from the property to the proceeds of the sale or encumbrance by requiring the deposit of the proceeds into a restricted account subject to the lien. The court shall have continuing jurisdiction over the funds deposited. The transferred lien shall attach only to the amount asserted by the personal representative, and any proceeds in excess of that amount shall not be subject to the lien or otherwise restricted under this section. Alternatively, the personal representative and the apparent owners of the protected homestead may agree to retain in escrow the amount demanded as reimbursement by the personal representative, to be held there under the continuing jurisdiction of the court pending a final determination of the amount properly reimbursable to the personal representative under this section.
(13) This act shall apply to estates of decedents dying after the date on which this act becomes a law.
History.—s. 1, ch. 74-106; s. 29, ch. 77-87; s. 131, ch. 2001-226; s. 10, ch. 2003-154; s. 15, ch. 2010-132.
Note.—Created from former s. 733.01(1).
733.609 Improper exercise of power; breach of fiduciary duty.—
(1) A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty. In all actions for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers, the court shall award taxable costs as in chancery actions, including attorney’s fees.
(2) When awarding taxable costs, including attorney’s fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.
(3) This section shall apply to all proceedings commenced hereunder after the effective date, without regard to the date of the decedent’s death.
History.—s. 1, ch. 74-106; s. 78, ch. 75-220; s. 1006, ch. 97-102; s. 132, ch. 2001-226; s. 11, ch. 2003-154.
733.610 Sale, encumbrance, or transaction involving conflict of interest.—Any sale or encumbrance to the personal representative or the personal representative’s spouse, agent, or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction that is affected by a conflict of interest on the part of the personal representative, is voidable by any interested person except one who has consented after fair disclosure, unless:
(1) The will or a contract entered into by the decedent expressly authorized the transaction; or
(2) The transaction is approved by the court after notice to interested persons.
History.—s. 1, ch. 74-106; s. 78, ch. 75-220; s. 1007, ch. 97-102; s. 133, ch. 2001-226.
733.611 Persons dealing with the personal representative; protection.—Except as provided in s. 733.613(1), a person who in good faith either assists or deals for value with a personal representative is protected as if the personal representative acted properly. The fact that a person knowingly deals with the personal representative does not require the person to inquire into the authority of the personal representative. A person is not bound to see to the proper application of estate assets paid or delivered to the personal representative. This protection extends to instances in which a procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is alive. This protection is in addition to any protection afforded by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
History.—s. 1, ch. 74-106; s. 78, ch. 75-220; s. 30, ch. 77-87; s. 1, ch. 77-174; s. 1008, ch. 97-102; s. 134, ch. 2001-226.
733.612 Transactions authorized for the personal representative; exceptions.—Except as otherwise provided by the will or court order, and subject to the priorities stated in s. 733.805, without court order, a personal representative, acting reasonably for the benefit of the interested persons, may properly:
(1) Retain assets owned by the decedent, pending distribution or liquidation, including those in which the personal representative is personally interested or that are otherwise improper for fiduciary investments.
(2) Perform or compromise, or, when proper, refuse to perform, the decedent’s contracts. In performing the decedent’s enforceable contracts to convey or lease real property, among other possible courses of action, the personal representative may:
(a) Convey the real property for cash payment of all sums remaining due or for the purchaser’s note for the sum remaining due, secured by a mortgage on the property.
(b) Deliver a deed in escrow, with directions that the proceeds, when paid in accordance with the escrow agreement, be paid as provided in the escrow agreement.
(3) Receive assets from fiduciaries or other sources.
(4) Invest funds as provided in ss. 518.10-518.14, considering the amount to be invested, liquidity needs of the estate, and the time until distribution will be made.
(5) Acquire or dispose of an asset, excluding real property in this or another state, for cash or on credit and at public or private sale, and manage, develop, improve, exchange, partition, or change the character of an estate asset.
(6) Make ordinary or extraordinary repairs or alterations in buildings or other structures; demolish improvements; or erect new party walls or buildings.
(7) Enter into a lease, as lessor or lessee, for a term within, or extending beyond, the period of administration, with or without an option to renew.
(8) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.
(9) Abandon property when it is valueless or so encumbered, or in a condition, that it is of no benefit to the estate.
(10) Vote, or refrain from voting, stocks or other securities in person or by general or limited proxy.
(11) Pay calls, assessments, and other sums chargeable or accruing against, or on account of, securities, unless barred by the provisions relating to claims.
(12) Hold property in the name of a nominee or in other form without disclosure of the interest of the estate, but the personal representative is liable for any act of the nominee in connection with the property so held.
(13) Insure the assets of the estate against damage or loss and insure against personal and fiduciary liability to third persons.
(14) Borrow money, with or without security, to be repaid from the estate assets or otherwise, other than real property, and advance money for the protection of the estate.
(15) Extend, renew, or in any manner modify any obligation owing to the estate. If the personal representative holds a mortgage, security interest, or other lien upon property of another person, he or she may accept a conveyance or transfer of encumbered assets from the owner in satisfaction of the indebtedness secured by its lien instead of foreclosure.
(16) Pay taxes, assessments, and other expenses incident to the administration of the estate.
(17) Sell or exercise stock subscription or conversion rights or consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
(18) Allocate items of income or expense to either estate income or principal, as permitted or provided by law.
(19) Employ persons, including, but not limited to, attorneys, accountants, auditors, appraisers, investment advisers, and others, even if they are one and the same as the personal representative or are associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act upon the recommendations of those employed persons without independent investigation; and, instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary. Any fees and compensation paid to a person who is the same as, associated with, or employed by, the personal representative shall be taken into consideration in determining the personal representative’s compensation.
(20) Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative.
(21) Sell, mortgage, or lease any personal property of the estate or any interest in it for cash, credit, or for part cash or part credit, and with or without security for the unpaid balance.
(22) Continue any unincorporated business or venture in which the decedent was engaged at the time of death:
(a) In the same business form for a period of not more than 4 months from the date of appointment, if continuation is a reasonable means of preserving the value of the business, including good will.
(b) In the same business form for any additional period of time that may be approved by court order.
(23) Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate.
(24) Satisfy and settle claims and distribute the estate as provided in this code.
(25) Enter into agreements with the proper officer or department head, commissioner, or agent of any department of the government of the United States, waiving the statute of limitations concerning the assessment and collection of any federal tax or any deficiency in a federal tax.
(26) Make partial distribution to the beneficiaries of any part of the estate not necessary to satisfy claims, expenses of administration, taxes, family allowance, exempt property, and an elective share, in accordance with the decedent’s will or as authorized by operation of law.
(27) Execute any instruments necessary in the exercise of the personal representative’s powers.
History.—s. 1, ch. 74-106; s. 78, ch. 75-220; s. 3, ch. 76-172; s. 31, ch. 77-87; s. 1, ch. 77-174; s. 271, ch. 79-400; s. 1009, ch. 97-102; s. 135, ch. 2001-226.
733.6121 Personal representative; powers as to environmental issues relating to property subject to administration; liability.—
(1) Except as otherwise provided by the will or by court order, and subject to s. 733.805, the personal representative has, without court authorization, the powers specified in subsection (2).
(2) A personal representative has the power, acting reasonably and for the benefit of the interested persons:
(a) To inspect or investigate, or cause to be inspected or investigated, property subject to administration, including interests in sole proprietorships, partnerships, or corporations and any assets owned by such a business entity for the purpose of determining compliance with an environmental law affecting that property or to respond to an actual or threatened violation of an environmental law affecting that property;
(b) To take, on behalf of the estate, any action necessary to prevent, abate, or otherwise remedy an actual or potential violation of an environmental law affecting property subject to administration, either before or after initiation of an enforcement action by a governmental body;
(c) To settle or compromise at any time any claim against the estate or the personal representative that may be asserted by a governmental body or private party which involves the alleged violation of an environmental law affecting property subject to administration over which the personal representative has responsibility;
(d) To disclaim any power granted by any document, statute, or rule of law which, in the sole judgment of the personal representative, could cause the personal representative to incur personal liability, or the estate to incur liability, under any environmental law;
(e) To decline to serve as a personal representative, or having undertaken to serve, to resign at any time, if the personal representative believes that there is or could be a conflict of interest because of potential claims or liabilities that could be asserted on behalf of the estate by reason of the type or condition of the assets held; or
(f) To charge against the assets of the estate the cost of any inspection, investigation, review, abatement, response, cleanup, or remedial action considered reasonable by the personal representative; and, in the event of the closing or termination of the estate or the transfer of the estate property to another personal representative, to hold moneys sufficient to cover the cost of cleaning up any known environmental problem.
(3) A personal representative is not personally liable to any beneficiary or any other party for a decrease in value of assets in an estate by reason of the personal representative’s compliance or efforts to comply with an environmental law, specifically including any reporting requirement under that law.
(4) A personal representative who acquires ownership or control of a vessel or other property without having owned, operated, or materially participated in the management of that vessel or property before assuming ownership or control as personal representative is not considered an owner or operator for purposes of liability under chapter 376, chapter 403, or any other environmental law. A personal representative who willfully, knowingly, or recklessly causes or exacerbates a release or threatened release of a hazardous substance is personally liable for the cost of the response, to the extent that the release or threatened release is attributable to the personal representative’s activities. This subsection does not preclude the filing of claims against the assets that constitute the estate held by the personal representative or the filing of actions against the personal representative as representative of the estate. In such an action, an award or judgment against the personal representative must be satisfied only from the assets of the estate.
(5) Neither the acceptance by the personal representative of the property or a failure by the personal representative to inspect or investigate the property creates any inference of liability under an environmental law with respect to that property.
(6) For the purposes of this section, the term “environmental law” means a federal, state, or local law, rule, regulation, or ordinance that relates to protection of the environment or human health, and the term “hazardous substance” means a substance, material, or waste defined as hazardous or toxic, or any contaminant, pollutant, or constituent thereof, or otherwise regulated by an environmental law.
(7) This section applies to any estate admitted to probate on or after July 1, 1995.
History.—s. 18, ch. 95-401; s. 1010, ch. 97-102; s. 136, ch. 2001-226.
733.613 Personal representative’s right to sell real property.—
(1) When a personal representative of an intestate estate, or whose testator has not conferred a power of sale or whose testator has granted a power of sale but the power is so limited by the will or by operation of law that it cannot be conveniently exercised, shall consider that it is for the best interest of the estate and of those interested in it that real property be sold, the personal representative may sell it at public or private sale. No title shall pass until the court authorizes or confirms the sale. No bona fide purchaser shall be required to examine any proceedings before the order of sale.
(2) When a decedent’s will confers specific power to sell or mortgage real property or a general power to sell any asset of the estate, the personal representative may sell, mortgage, or lease, without authorization or confirmation of court, any real property of the estate or any interest therein for cash or credit, or for part cash and part credit, and with or without security for unpaid balances. The sale, mortgage, or lease need not be justified by a showing of necessity, and the sale pursuant to power of sale shall be valid.
(3) In a sale or mortgage which occurs under a specific power to sell or mortgage real property, or under a court order authorizing or confirming that act, the purchaser or lender takes title free of claims of creditors of the estate and entitlements of estate beneficiaries, except existing mortgages or other liens against real property are not affected.
History.—s. 1, ch. 74-106; s. 78, ch. 75-220; s. 1011, ch. 97-102; s. 137, ch. 2001-226.
Note.—Created from former s. 733.23.
733.614 Powers and duties of successor personal representative.—A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate as expeditiously as possible, but shall not exercise any power made personal to the personal representative named in the will without court approval.
History.—s. 1, ch. 74-106; s. 78, ch. 75-220; s. 1012, ch. 97-102; s. 138, ch. 2001-226.
Note.—Created from former s. 734.10.
733.615 Joint personal representatives; when joint action required.—
(1) If two or more persons are appointed joint personal representatives, and unless the will provides otherwise, the concurrence of all joint personal representatives appointed pursuant to a will or codicil executed prior to October 1, 1987, or appointed to administer an intestate estate of a decedent who died prior to October 1, 1987, or of a majority of joint personal representatives appointed pursuant to a will or codicil executed on or after October 1, 1987, or appointed to administer an intestate estate of a decedent dying on or after October 1, 1987, is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any joint personal representative receives and receipts for property due the estate, when the concurrence required under this subsection cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a joint personal representative has been delegated to act for the others.
(2) Where action by a majority of the joint personal representatives appointed is authorized, a joint personal representative who has not joined in exercising a power is not liable to the beneficiaries or to others for the consequences of the exercise, and a dissenting joint personal representative is not liable for the consequences of an action in which the dissenting personal representative joins at the direction of the majority of the joint personal representatives, if the dissent is expressed in writing to the other joint personal representatives at or before the time of the action.
(3) A person dealing with a joint personal representative without actual knowledge that joint personal representatives have been appointed, or if advised by a joint personal representative that the joint personal representative has authority to act alone for any of the reasons mentioned in subsection (1), is as fully protected in dealing with that joint personal representative as if that joint personal representative possessed and properly exercised the power.
History.—s. 1, ch. 74-106; s. 1, ch. 87-317; s. 4, ch. 88-340; s. 1013, ch. 97-102; s. 139, ch. 2001-226.
Note.—Created from former s. 732.50.
733.616 Powers of surviving personal representatives.—Unless otherwise provided by the terms of the will or a court order, every power exercisable by joint personal representatives may be exercised by the one or more remaining after the appointment of one or more is terminated. If one or more, but not all, nominated as joint personal representatives are not appointed, those appointed may exercise all powers granted to those nominated.
History.—s. 1, ch. 74-106; s. 140, ch. 2001-226.
Note.—Created from former s. 732.52.
733.617 Compensation of personal representative.—
(1) A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration.
(2) A commission computed on the compensable value of the estate is presumed to be reasonable compensation for a personal representative in formal administration as follows:
(a) At the rate of 3 percent for the first $1 million.
(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
(c) At the rate of 2 percent for all above $5 million and not exceeding $10 million.
(d) At the rate of 1.5 percent for all above $10 million.
(3) In addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:
(a) The sale of real or personal property.
(b) The conduct of litigation on behalf of or against the estate.
(c) Involvement in proceedings for the adjustment or payment of any taxes.
(d) The carrying on of the decedent’s business.
(e) Dealing with protected homestead.
(f) Any other special services which may be necessary for the personal representative to perform.
(4) If the will provides that a personal representative’s compensation shall be based upon specific criteria, other than a general reference to commissions allowed by law or words of similar import, including, but not limited to, rates, amounts, commissions, or reference to the personal representative’s regularly published schedule of fees in effect at the decedent’s date of death, or words of similar import, then a personal representative shall be entitled to compensation in accordance with that provision. However, except for references in the will to the personal representative’s regularly published schedule of fees in effect at the decedent’s date of death, or words of similar import, if there is no written contract with the decedent regarding compensation, a personal representative may renounce the provisions contained in the will and be entitled to compensation under this section. A personal representative may also renounce the right to all or any part of the compensation.
(5) If the probate estate’s compensable value is $100,000 or more, and there are two representatives, each personal representative is entitled to the full commission allowed to a sole personal representative. If there are more than two personal representatives and the probate estate’s compensable value is $100,000 or more, the compensation to which two would be entitled must be apportioned among the personal representatives. The basis for apportionment shall be one full commission allowed to the personal representative who has possession of and primary responsibility for administration of the assets and one full commission among the remaining personal representatives according to the services rendered by each of them respectively. If the probate estate’s compensable value is less than $100,000 and there is more than one personal representative, then one full commission must be apportioned among the personal representatives according to the services rendered by each of them respectively.
(6) If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.
(7) Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:
(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;
(b) The responsibilities assumed by and the potential liabilities of the personal representative;
(c) The nature and value of the assets that are affected by the decedent’s death;
(d) The benefits or detriments resulting to the estate or interested persons from the personal representative’s services;
(e) The complexity or simplicity of the administration and the novelty of the issues presented;
(f) The personal representative’s participation in tax planning for the estate and the estate’s beneficiaries and in tax return preparation, review, or approval;
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;
(h) Any delay in payment of the compensation after the services were furnished; and
(i) Any other relevant factors.
History.—s. 1, ch. 74-106; s. 80, ch. 75-220; s. 1, ch. 76-172; s. 5, ch. 88-340; s. 1, ch. 90-129; s. 10, ch. 93-257; s. 1, ch. 95-401; s. 141, ch. 2001-226; s. 109, ch. 2002-1.
Note.—Created from former s. 734.01.
733.6171 Compensation of attorney for the personal representative.—
(1) Attorneys for personal representatives shall be entitled to reasonable compensation payable from the estate assets without court order.
(2) The attorney, the personal representative, and persons bearing the impact of the compensation may agree to compensation determined in a different manner than provided in this section. Compensation may also be determined in a different manner than provided in this section if the manner is disclosed to the parties bearing the impact of the compensation and if no objection is made as provided for in the Florida Probate Rules.
(3) Compensation for ordinary services of attorneys in formal estate administration is presumed to be reasonable if based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during the administration as provided in the following schedule:
(a) One thousand five hundred dollars for estates having a value of $40,000 or less.
(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.
(c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.
(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.
(e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.
(f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.
(g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.
(h) At the rate of 1 percent for all above $10 million.
(4) In addition to fees for ordinary services, the attorney for the personal representative shall be allowed further reasonable compensation for any extraordinary service. What is an extraordinary service may vary depending on many factors, including the size of the estate. Extraordinary services may include, but are not limited to:
(a) Involvement in a will contest, will construction, a proceeding for determination of beneficiaries, a contested claim, elective share proceeding, apportionment of estate taxes, or any adversarial proceeding or litigation by or against the estate.
(b) Representation of the personal representative in audit or any proceeding for adjustment, determination, or collection of any taxes.
(c) Tax advice on postmortem tax planning, including, but not limited to, disclaimer, renunciation of fiduciary commission, alternate valuation date, allocation of administrative expenses between tax returns, the QTIP or reverse QTIP election, allocation of GST exemption, qualification for Internal Revenue Code ss. 6166 and 303 privileges, deduction of last illness expenses, fiscal year planning, distribution planning, asset basis considerations, handling income or deductions in respect of a decedent, valuation discounts, special use and other valuation, handling employee benefit or retirement proceeds, prompt assessment request, or request for release of personal liability for payment of tax.
(d) Review of estate tax return and preparation or review of other tax returns required to be filed by the personal representative.
(e) Preparation of the estate’s federal estate tax return. If this return is prepared by the attorney, a fee of one-half of 1 percent up to a value of $10 million and one-fourth of 1 percent on the value in excess of $10 million of the gross estate as finally determined for federal estate tax purposes, is presumed to be reasonable compensation for the attorney for this service. These fees shall include services for routine audit of the return, not beyond the examining agent level, if required.
(f) Purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters.
(g) Legal advice regarding carrying on of the decedent’s business or conducting other commercial activity by the personal representative.
(h) Legal advice regarding claims for damage to the environment or related procedures.
(i) Legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead.
(j) Involvement in fiduciary, employee, or attorney compensation disputes.
(k) Proceedings involving ancillary administration of assets not subject to administration in this state.
(5) Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the attorney or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:
(a) The promptness, efficiency, and skill with which the administration was handled by the attorney.
(b) The responsibilities assumed by and the potential liabilities of the attorney.
(c) The nature and value of the assets that are affected by the decedent’s death.
(d) The benefits or detriments resulting to the estate or interested persons from the attorney’s services.
(e) The complexity or simplicity of the administration and the novelty of issues presented.
(f) The attorney’s participation in tax planning for the estate and the estate’s beneficiaries and tax return preparation, review, or approval.
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries.
(h) Any delay in payment of the compensation after the services were furnished.
(i) Any other relevant factors.
(6) If a separate written agreement regarding compensation exists between the attorney and the decedent, the attorney shall furnish a copy to the personal representative prior to commencement of employment, and, if employed, shall promptly file and serve a copy on all interested persons. Neither a separate agreement nor a provision in the will suggesting or directing that the personal representative retain a specific attorney will obligate the personal representative to employ the attorney or obligate the attorney to accept the representation, but if the attorney who is a party to the agreement or who drafted the will is employed, the compensation paid shall not exceed the compensation provided in the agreement or in the will.
History.—s. 4, ch. 93-257; s. 2, ch. 95-401; s. 142, ch. 2001-226.
733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.—
(1) The court may review the propriety of the employment of any person employed by the personal representative and the reasonableness of any compensation paid to that person or to the personal representative.
(2) Court proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process, and the costs, including attorneys’ fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be substantially unreasonable. The court shall direct from which part of the estate the compensation shall be paid.
(3) The burden of proof of propriety of the employment and the reasonableness of the compensation shall be upon the personal representative and the person employed. Any person who is determined to have received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
(4) The court may determine reasonable compensation for the personal representative or any person employed by the personal representative without receiving expert testimony. Any party may offer expert testimony after notice to interested persons. If expert testimony is offered, a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate. The court shall direct from what part of the estate the fee shall be paid.
History.—s. 2, ch. 76-172; s. 1014, ch. 97-102; s. 143, ch. 2001-226.
733.619 Individual liability of personal representative.—
(1) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract, except a contract for attorney’s fee, properly entered into as fiduciary unless the personal representative fails to reveal that representative capacity and identify the estate in the contract.
(2) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if personally at fault.
(3) Claims based on contracts, except a contract for attorney’s fee, entered into by a personal representative as a fiduciary, on obligations arising from ownership or control of the estate, or on torts committed in the course of estate administration, may be asserted against the estate by proceeding against the personal representative in that capacity, whether or not the personal representative is individually liable.
(4) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding.
History.—s. 82, ch. 75-220; s. 32, ch. 77-87; s. 228, ch. 77-104; s. 1015, ch. 97-102; s. 144, ch. 2001-226.
733.620 Exculpation of personal representative.—
(1) A term of a will relieving a personal representative of liability to a beneficiary for breach of fiduciary duty is unenforceable to the extent that the term:
(a) Relieves the personal representative of liability for breach of fiduciary duty committed in bad faith or with reckless indifference to the purposes of the will or the interests of interested persons; or
(b) Was inserted into the will as the result of an abuse by the personal representative of a fiduciary or confidential relationship with the testator.
(2) An exculpatory term drafted or caused to be drafted by the personal representative is invalid as an abuse of a fiduciary or confidential relationship unless:
(a) The personal representative proves that the exculpatory term is fair under the circumstances.
(b) The term’s existence and contents were adequately communicated directly to the testator or to the independent attorney of the testator. This paragraph applies only to wills created on or after July 1, 2007.
History.—s. 15, ch. 2007-74.
PART VII
CREDITORS’ CLAIMS733.701 Notifying creditors.
733.702 Limitations on presentation of claims.
733.703 Form and manner of presenting claim.
733.704 Amendment of claims.
733.705 Payment of and objection to claims.
733.706 Executions and levies.
733.707 Order of payment of expenses and obligations.
733.708 Compromise.
733.710 Limitations on claims against estates.
733.701 Notifying creditors.—Unless creditors’ claims are otherwise barred by s. 733.710, every personal representative shall cause notice to creditors to be published and served under s. 733.2121.
History.—s. 1, ch. 74-106; s. 83, ch. 75-220; s. 33, ch. 77-87; s. 4, ch. 89-340; s. 145, ch. 2001-226; s. 31, ch. 2003-154.
Note.—Created from former s. 733.15.
733.702 Limitations on presentation of claims.—
(1) If not barred by s. 733.710, no claim or demand against the decedent’s estate that arose before the death of the decedent, including claims of the state and any of its political subdivisions, even if the claims are unmatured, contingent, or unliquidated; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages, including, but not limited to, an action founded on fraud or another wrongful act or omission of the decedent, is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise. The personal representative may settle in full any claim without the necessity of the claim being filed when the settlement has been approved by the interested persons.
(2) No cause of action, including, but not limited to, an action founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom the claim may be made, whether or not an action is pending at the death of the person, unless a claim is filed within the time periods set forth in this part.
(3) Any claim not timely filed as provided in this section is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed. An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period. No independent action or declaratory action may be brought upon a claim which was not timely filed unless an extension has been granted by the court. If the personal representative or any other interested person serves on the creditor a notice to file a petition for an extension, the creditor shall be limited to a period of 30 days from the date of service of the notice in which to file a petition for extension.
(4) Nothing in this section affects or prevents:
(a) A proceeding to enforce any mortgage, security interest, or other lien on property of the decedent.
(b) To the limits of casualty insurance protection only, any proceeding to establish liability that is protected by the casualty insurance.
(c) The filing of a cross-claim or counterclaim against the estate in an action instituted by the estate; however, no recovery on a cross-claim or counterclaim shall exceed the estate’s recovery in that action.
(5) Nothing in this section shall extend the limitations period set forth in s. 733.710.
History.—s. 1, ch. 74-106; s. 84, ch. 75-220; s. 2, ch. 80-127; s. 4, ch. 81-27; s. 160, ch. 83-216; s. 5, ch. 84-106; s. 4, ch. 85-79; s. 6, ch. 88-340; s. 5, ch. 89-340; s. 4, ch. 90-23; s. 1016, ch. 97-102; s. 146, ch. 2001-226; s. 6, ch. 2002-82; s. 26, ch. 2006-312; s. 21, ch. 2010-4.
Note.—Created from former s. 733.16.
733.703 Form and manner of presenting claim.—
(1) A creditor shall file a written statement of the claim. No additional charge may be imposed by a claimant who files a claim against the estate.
(2) Within the time allowed by s. 733.702, the personal representative may file a proof of claim of all claims he or she has paid or intends to pay. A claimant whose claim is listed in a personal representative’s proof of claim shall be deemed to have filed a statement of the claim listed. Except as provided otherwise in this part, the claim shall be treated as if the claimant had filed it.
History.—s. 1, ch. 74-106; s. 84, ch. 75-220; s. 5, ch. 81-27; s. 5, ch. 85-79; s. 6, ch. 89-340; s. 147, ch. 2001-226.
Note.—Created from former s. 733.16.
733.704 Amendment of claims.—If a bona fide attempt to file a claim is made but the claim is defective as to form, the court may permit the amendment of the claim at any time.
History.—s. 1, ch. 74-106; s. 1, ch. 77-174; s. 148, ch. 2001-226.
Note.—Created from former s. 733.17.
733.705 Payment of and objection to claims.—
(1) The personal representative shall pay all claims within 1 year from the date of first publication of notice to creditors, provided that the time shall be extended with respect to claims in litigation, unmatured claims, and contingent claims for the period necessary to dispose of those claims pursuant to subsections (5), (6), (7), and (8). The court may extend the time for payment of any claim upon a showing of good cause. No personal representative shall be compelled to pay the debts of the decedent until after the expiration of 5 months from the first publication of notice to creditors. If any person brings an action against a personal representative within the 5 months on any claim to which the personal representative has not filed an objection, the plaintiff shall not receive any costs or attorneys’ fees, nor shall the judgment change the class of the claim for payment under this code.
(2) On or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later, a personal representative or other interested person may file a written objection to a claim. If an objection is filed, the person filing it shall serve a copy of the objection as provided by the Florida Probate Rules. The failure to serve a copy of the objection constitutes an abandonment of the objection. For good cause, the court may extend the time for filing or serving an objection to any claim. Objection to a claim constitutes an objection to an amendment of that claim unless the objection is withdrawn.
(3) If the objection is filed by a person other than the personal representative, the personal representative may apply to the court for an order relieving him or her from the obligation to defend the estate in an independent action or for the appointment of the objector as administrator ad litem to defend the action. Fees for the attorney for the administrator ad litem may be awarded as provided in s. 733.106(3). If costs or attorney’s fees are awarded from or against the estate, the probate court may charge or apportion that award as provided in s. 733.106(4).
(4) An objection by an interested person to a personal representative’s proof of claim shall state the particular item or items to which the interested person objects and shall be filed and served as provided in subsection (2). Issues of liability as between the estate and the personal representative individually for items listed in a personal representative’s proof of claim shall be determined in the estate administration, in a proceeding for accounting or surcharge, or in another appropriate proceeding, whether or not an objection has been filed. If an objection to an item listed as to be paid in a personal representative’s proof of claim is filed and served, and the personal representative has not paid the item, the other subsections of this section shall apply as if a claim for the item had been filed by the claimant; but if the personal representative has paid the claim after listing it as to be paid, issues of liability as between the estate and the personal representative individually shall be determined in the manner provided for an item listed as paid.
(5) The claimant is limited to a period of 30 days from the date of service of an objection within which to bring an independent action upon the claim, or a declaratory action to establish the validity and amount of an unmatured claim which is not yet due but which is certain to become due in the future, or a declaratory action to establish the validity of a contingent claim upon which no cause of action has accrued on the date of service of an objection and that may or may not become due in the future, unless an extension of this time is agreed to by the personal representative in writing before it expires. For good cause, the court may extend the time for filing an action or proceeding after objection is filed. No action or proceeding on the claim may be brought against the personal representative after the time limited above, and the claim is barred without court order. If an objection is filed to the claim of any creditor and the creditor brings an action to establish the claim, a judgment establishing the claim shall give it no priority over claims of the same class to which it belongs.
(6) A claimant may bring an independent action or declaratory action upon a claim which was not timely filed pursuant to s. 733.702(1) only if the claimant has been granted an extension of time to file the claim pursuant to s. 733.702(3).
(7) If an unmatured claim has not become due before the time for distribution of an estate, the personal representative may prepay the full amount of principal plus accrued interest due on the claim, without discount and without penalty, regardless of any prohibition against prepayment or provision for penalty in any instrument on which the claim is founded. If the claim is not prepaid, no order of discharge may be entered until the creditor and personal representative have filed an agreement disposing of the claim, or in the absence of an agreement until the court provides for payment by one of the following methods:
(a) Requiring the personal representative to reserve such assets as the court determines to be adequate to pay the claim when it becomes due; in fixing the amount to be reserved, the court may determine the value of any security or collateral to which the creditor may resort for payment of the claim and may direct the reservation, if necessary, of sufficient assets to pay the claim or to pay the difference between the value of any security or collateral and the amount necessary to pay the claim. If the estate is insolvent, the court may direct a proportionate amount to be reserved. The court shall direct that the amount reserved be retained by the personal representative until the time that the claim becomes due, and that so much of the reserved amount as is not used for payment be distributed according to law;
(b) Requiring that the claim be adequately secured by a mortgage, pledge, bond, trust, guaranty, or other security, as may be determined by the court, the security to remain in effect until the time the claim becomes due, and so much of the security or collateral as is not needed for payment be distributed according to law; or
(c) Making provisions for the disposition or satisfaction of the claim as are equitable, and in a manner so as not to delay unreasonably the closing of the estate.
(8) If no cause of action has accrued on a contingent claim before the time for distribution of an estate, no order of discharge may be entered until the creditor and the personal representative have filed an agreement disposing of the claim or, in the absence of an agreement, until:
(a) The court determines that the claim is adequately secured or that it has no value,
(b) Three months from the date on which a cause of action accrues upon the claim, provided that no action on the claim is then pending,
(c) Five years from the date of first publication of notice to creditors, or
(d) The court provides for payment of the claim upon the happening of the contingency by one of the methods described in paragraph (a), paragraph (b), or paragraph (c) of subsection (7),
whichever occurs first. No action or proceeding on the claim may be brought against the personal representative after the time limited above, and the claim is barred without court order. If an objection is filed to the claim of any creditor and the creditor brings an action to establish the claim, a judgment establishing the claim shall give it no priority over claims of the same class to which it belongs.
(9) Interest shall be paid by the personal representative on written obligations of the decedent providing for the payment of interest. On all other claims, interest shall be allowed and paid beginning 5 months from the first publication of the notice to creditors.
(10) The court may determine all issues concerning claims or matters not requiring trial by jury.
(11) An order for extension of time authorized under this section may be entered only in the estate administration proceeding.
History.—s. 1, ch. 74-106; s. 86, ch. 75-220; s. 34, ch. 77-87; s. 1, ch. 77-174; s. 1, ch. 84-25; s. 1, ch. 86-249; s. 7, ch. 88-340; s. 7, ch. 89-340; s. 2, ch. 91-61; s. 1017, ch. 97-102; s. 149, ch. 2001-226.
Note.—Created from former s. 733.18.
733.706 Executions and levies.—Except upon approval by the court, no execution or other process shall issue on or be levied against property of the estate. An order approving execution or other process to be levied against property of the estate may be entered only in the estate administration proceeding. Claims on all judgments against a decedent shall be filed in the same manner as other claims against estates of decedents. This section shall not be construed to prevent the enforcement of mortgages, security interests, or liens encumbering specific property.
History.—s. 1, ch. 74-106; s. 86, ch. 75-220; s. 8, ch. 89-340.
Note.—Created from former s. 733.19.
733.707 Order of payment of expenses and obligations.—
(1) The personal representative shall pay the expenses of the administration and obligations of the decedent’s estate in the following order:
(a) Class 1.—Costs, expenses of administration, and compensation of personal representatives and their attorneys fees and attorneys fees awarded under s. 733.106(3).
(b) Class 2.—Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian, the personal representative, or any other person, not to exceed the aggregate of $6,000.
(c) Class 3.—Debts and taxes with preference under federal law, claims pursuant to ss. 409.9101 and 414.28, and claims in favor of the state for unpaid court costs, fees, or fines.
(d) Class 4.—Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.
(e) Class 5.—Family allowance.
(f) Class 6.—Arrearage from court-ordered child support.
(g) Class 7.—Debts acquired after death by the continuation of the decedent’s business, in accordance with s. 733.612(22), but only to the extent of the assets of that business.
(h) Class 8.—All other claims, including those founded on judgments or decrees rendered against the decedent during the decedent’s lifetime, and any excess over the sums allowed in paragraphs (b) and (d).
(2) After paying any preceding class, if the estate is insufficient to pay all of the next succeeding class, the creditors of the latter class shall be paid ratably in proportion to their respective claims.
(3) Any portion of a trust with respect to which a decedent who is the grantor has at the decedent’s death a right of revocation, as defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration and obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them as provided in ss. 733.607(2) and 736.05053.
(a) For purposes of this subsection, any trusts established as part of, and all payments from, either an employee annuity described in s. 403 of the Internal Revenue Code of 1986, as amended, an Individual Retirement Account, as described in s. 408 of the Internal Revenue Code of 1986, as amended, a Keogh (HR-10) Plan, or a retirement or other plan established by a corporation which is qualified under s. 401 of the Internal Revenue Code of 1986, as amended, shall not be considered a trust over which the decedent has a right of revocation.
(b) For purposes of this subsection, any trust described in s. 664 of the Internal Revenue Code of 1986, as amended, shall not be considered a trust over which the decedent has a right of revocation.
(c) This subsection shall not impair any rights an individual has under a qualified domestic relations order as that term is defined in s. 414(p) of the Internal Revenue Code of 1986, as amended.
(d) For purposes of this subsection, property held or received by a trust to the extent that the property would not have been subject to claims against the decedent’s estate if it had been paid directly to a trust created under the decedent’s will or other than to the decedent’s estate, or assets received from any trust other than a trust described in this subsection, shall not be deemed assets of the trust available to the decedent’s estate.
(e) For purposes of this subsection, a “right of revocation” is a power retained by the decedent, held in any capacity, to:
1. Amend or revoke the trust and revest the principal of the trust in the decedent; or
2. Withdraw or appoint the principal of the trust to or for the decedent’s benefit.
History.—s. 1, ch. 74-106; s. 86, ch. 75-220; s. 35, ch. 77-87; s. 7, ch. 85-79; s. 69, ch. 87-226; s. 20, ch. 93-208; s. 11, ch. 93-257; s. 10, ch. 95-401; s. 1018, ch. 97-102; s. 3, ch. 97-240; s. 150, ch. 2001-226; s. 2, ch. 2010-122; s. 17, ch. 2012-100.
Note.—Created from former s. 733.20.
733.708 Compromise.—When a proposal is made to compromise any claim, whether in suit or not, by or against the estate of a decedent or to compromise any question concerning the distribution of a decedent’s estate, the court may enter an order authorizing the compromise if satisfied that the compromise will be for the best interest of the interested persons. The order shall relieve the personal representative of liability or responsibility for the compromise. Claims against the estate may not be compromised until after the time for filing objections to claims has expired.
History.—s. 1, ch. 74-106; s. 86, ch. 75-220; s. 151, ch. 2001-226.
Note.—Created from former s. 733.21.
733.710 Limitations on claims against estates.—
(1) Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.
(2) This section shall not apply to a creditor who has filed a claim pursuant to s. 733.702 within 2 years after the person’s death, and whose claim has not been paid or otherwise disposed of pursuant to s. 733.705.
(3) This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.
History.—s. 1, ch. 74-106; s. 50, ch. 75-220; s. 36, ch. 77-87; s. 9, ch. 89-340; s. 152, ch. 2001-226.
Note.—Created from former s. 734.29(1).
PART VIII
SPECIAL PROVISIONS FORDISTRIBUTION
733.801 Delivery of devises and distributive shares.
733.802 Proceedings for compulsory payment of devises or distributive interest.
733.803 Encumbered property; liability for payment.
733.805 Order in which assets abate.
733.806 Advancement.
733.808 Death benefits; disposition of proceeds.
733.809 Right of retainer.
733.810 Distribution in kind; valuation.
733.811 Distribution; right or title of distributee.
733.812 Improper distribution or payment; liability of distributee or payee.
733.813 Purchasers from distributees protected.
733.814 Partition for purpose of distribution.
733.815 Private contracts among interested persons.
733.816 Disposition of unclaimed property held by personal representatives.
733.817 Apportionment of estate taxes.
733.801 Delivery of devises and distributive shares.—
(1) No personal representative shall be required to pay or deliver any devise or distributive share or to surrender possession of any land to any beneficiary until the expiration of 5 months from the granting of letters.
(2) Except as otherwise provided in the will, the personal representative shall pay as an expense of administration the reasonable expenses of storage, insurance, packing, and delivery of tangible personal property to a beneficiary.
History.—s. 1, ch. 74-106; s. 86, ch. 75-220; s. 153, ch. 2001-226.
Note.—Created from former s. 734.02.
733.802 Proceedings for compulsory payment of devises or distributive interest.—
(1) Before final distribution, no personal representative shall be compelled:
(a) To pay a devise in money before the final settlement of the personal representative’s accounts,
(b) To deliver specific personal property devised, unless the personal property is exempt personal property,
(c) To pay all or any part of a distributive share in the personal estate of a decedent, or
(d) To surrender land to any beneficiary,
unless the beneficiary establishes that the property will not be required for the payment of debts, family allowance, estate and inheritance taxes, claims, elective share of the surviving spouse, charges, or expenses of administration or to provide funds for contribution or to enforce equalization in case of advancements.
(2) An order directing the surrender of real property or the delivery of personal property by the personal representative to the beneficiary shall be conclusive in favor of bona fide purchasers for value from the beneficiary or distributee as against the personal representative and all other persons claiming by, through, under, or against the decedent or the decedent’s estate.
(3) If the administration of the estate has not been completed before the entry of an order of partial distribution, the court may require the person entitled to distribution to give a bond with sureties as prescribed in s. 45.011, conditioned on the making of due contribution for the payment of devises, family allowance, estate and inheritance taxes, claims, elective share of the spouse, charges, expenses of administration, and equalization in case of advancements, plus any interest on them.
History.—s. 1, ch. 74-106; s. 86, ch. 75-220; s. 37, ch. 77-87; s. 1, ch. 77-174; s. 272, ch. 79-400; s. 1019, ch. 97-102; s. 154, ch. 2001-226.
Note.—Created from former s. 734.03.
733.803 Encumbered property; liability for payment.—The specific devisee of any encumbered property shall be entitled to have the encumbrance on devised property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in the will to pay debts does not show that intent.
History.—s. 1, ch. 74-106; s. 86, ch. 75-220; s. 155, ch. 2001-226.
Note.—Created from former s. 734.051.
733.805 Order in which assets abate.—
(1) Funds or property designated by the will shall be used to pay debts, family allowance, exempt property, elective share charges, expenses of administration, and devises, to the extent the funds or property is sufficient. If no provision is made or the designated fund or property is insufficient, the funds and property of the estate shall be used for these purposes, and to raise the shares of a pretermitted spouse and children, except as otherwise provided in subsections (3) and (4), in the following order:
(a) Property passing by intestacy.
(b) Property devised to the residuary devisee or devisees.
(c) Property not specifically or demonstratively devised.
(d) Property specifically or demonstratively devised.
(2) Demonstrative devises shall be classed as general devises upon the failure or insufficiency of funds or property out of which payment should be made, to the extent of the insufficiency. Devises to the decedent’s surviving spouse, given in satisfaction of, or instead of, the surviving spouse’s statutory rights in the estate, shall not abate until other devises of the same class are exhausted. Devises given for a valuable consideration shall abate with other devises of the same class only to the extent of the excess over the amount of value of the consideration until all others of the same class are exhausted. Except as herein provided, devises shall abate equally and ratably and without preference or priority as between real and personal property. When property that has been specifically devised or charged with a devise is sold or used by the personal representative, other devisees shall contribute according to their respective interests to the devisee whose devise has been sold or used. The amounts of the respective contributions shall be determined by the court and shall be paid or withheld before distribution is made.
(3) Section 733.817 shall be applied before this section is applied.
(4) In determining the contribution required under s. 733.607(2), subsections (1)-(3) of this section and s. 736.05053(2) shall be applied as if the beneficiaries of the estate and the beneficiaries of a trust described in s. 733.707(3), other than the estate or trust itself, were taking under a common instrument.
History.—s. 1, ch. 74-106; s. 88, ch. 75-220; s. 1, ch. 77-174; s. 1020, ch. 97-102; s. 156, ch. 2001-226; s. 38, ch. 2006-217.
Note.—Created from former s. 734.05.
733.806 Advancement.—If a person dies intestate, property that the decedent gave during lifetime to an heir is treated as an advancement against the heir’s share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir. The property advanced shall be valued at the time the heir came into possession or enjoyment of the property or at the time of the death of the decedent, whichever first occurs. If the recipient of the property does not survive the decedent, the property shall not be taken into account in computing the intestate share to be received by the recipient’s descendants unless the declaration or acknowledgment provides otherwise.
History.—s. 1, ch. 74-106; s. 1021, ch. 97-102; s. 157, ch. 2001-226.
Note.—Created from former s. 734.07.
733.808 Death benefits; disposition of proceeds.—
(1) Death benefits of any kind, including, but not limited to, proceeds of:
(a) An individual life insurance policy;
(b) A group life insurance policy;
(c) A benefit plan as defined by s. 710.102;
(d) An annuity or endowment contract; and
(e) A health or accident policy,
may be made payable to the trustee under a trust agreement or declaration of trust in existence at the time of the death of the insured, employee, or annuitant or the owner of or participant in the benefit plan. The death benefits shall be held and disposed of by the trustee in accordance with the terms of the trust as they appear in writing on the date of the death of the insured, employee, annuitant, owner, or participant. It shall not be necessary to the validity of the trust agreement or declaration of trust, whether revocable or irrevocable, that it have a trust corpus other than the right of the trustee to receive death benefits.
(2) Death benefits of any kind, including, but not limited to, proceeds of:
(a) An individual life insurance policy;
(b) A group life insurance policy;
(c) A benefit plan as defined in s. 710.102;
(d) An annuity or endowment contract; and
(e) A health or accident policy,
may be made payable to the trustee named, or to be named, in a written instrument that is admitted to probate as the last will of the insured, the owner of the policy, the employee, owner, or participant covered by the plan or contract, or any other person, whether or not the will is in existence at the time of designation. Upon the admission of the will to probate, the death benefits shall be paid to the trustee, to be held, administered, and disposed of in accordance with the terms of the trust or trusts created by the will.
(3) In the event no trustee makes proper claim to the proceeds from the insurance company or other obligor within a period of 6 months after the date of the death of the insured, employee, annuitant, owner, or participant, or if satisfactory evidence is furnished to the insurance company or obligor within that period that there is, or will be, no trustee to receive the proceeds, payment shall be made by the insurance company or obligor to the personal representative of the person making the designation, unless otherwise provided by agreement with the insurer or obligor during the lifetime of the insured, employee, annuitant, owner, or participant.
(4) Unless the trust agreement, declaration of trust, or will expressly refers to this subsection and directs that it does not apply, death benefits payable as provided in subsection (1), subsection (2), or subsection (3), unless paid to a personal representative under the provisions of subsection (3), shall not be deemed to be part of the decedent’s estate and shall not be subject to any obligation to pay the expenses of the administration and obligations of the decedent’s estate or for contribution required from a trust under s. 733.607(2) to any greater extent than if the proceeds were payable directly to the beneficiaries named in the trust.
(5) The death benefits held in trust may be commingled with any other assets that may properly come into the trust.
(6) This section does not affect the validity of any designation of a beneficiary of proceeds previously made that designates as beneficiary the trustee of any trust established under a trust agreement or declaration of trust or by will.
History.—s. 1, ch. 74-106; s. 38, ch. 77-87; s. 158, ch. 2001-226; s. 7, ch. 2005-101; s. 5, ch. 2014-127.
Note.—Created from former s. 736.172.
733.809 Right of retainer.—The amount of a noncontingent indebtedness due from a beneficiary to the estate or its present value, if not due, may be offset against that beneficiary’s interest. However, that beneficiary shall have the benefit of any defense that would be available in a direct proceeding for recovery of the debt.
History.—s. 1, ch. 74-106; s. 39, ch. 77-87; s. 1022, ch. 97-102; s. 159, ch. 2001-226.
733.810 Distribution in kind; valuation.—
(1) Assets shall be distributed in kind unless:
(a) A general power of sale is conferred;
(b) A contrary intention is indicated by the will or trust; or
(c) Disposition is made otherwise under the provisions of this code.
(2) Any pecuniary devise, family allowance, or other pecuniary share of the estate or trust may be satisfied in kind if:
(a) The person entitled to payment has not demanded cash;
(b) The property is distributed at fair market value as of its distribution date; and
(c) No residuary devisee has requested that the asset remain a part of the residuary estate.
(3) When not practicable to distribute undivided interests in a residuary asset, the asset may be sold.
(4) When the fiduciary under a will or trust is required, or has an option, to satisfy a pecuniary devise or transfer in trust, to or for the benefit of the surviving spouse, with an in-kind distribution, at values as finally determined for federal estate tax purposes, the fiduciary shall, unless the governing instrument otherwise provides, satisfy the devise or transfer in trust by distribution of assets, including cash, fairly representative of the appreciated or depreciated value of all property available for that distribution, taking into consideration any gains and losses realized from a prior sale of any property not devised specifically, generally, or demonstratively.
(5) A personal representative or a trustee is authorized to distribute any distributable assets, non-pro rata among the beneficiaries subject to the fiduciary’s duty of impartiality.
History.—s. 1, ch. 74-106; s. 92, ch. 75-220; s. 40, ch. 77-87; s. 160, ch. 2001-226.
Note.—Created from former s. 734.031.
733.811 Distribution; right or title of distributee.—If a distributee receives from a fiduciary an instrument transferring assets in kind, payment in distribution, or possession of specific property, the distributee has succeeded to the estate’s interest in the assets as against all persons interested in the estate. However, the fiduciary may recover the assets or their value if the distribution was improper.
History.—s. 1, ch. 74-106; s. 161, ch. 2001-226.
733.812 Improper distribution or payment; liability of distributee or payee.—A distributee or a claimant who was paid improperly must return the assets or funds received, and the income from those assets or interest on the funds since distribution or payment, unless the distribution or payment cannot be questioned because of adjudication, estoppel, or limitations. If the distributee or claimant does not have the property, its value at the date of disposition, income thereon, and gain received by the distributee or claimant must be returned.
History.—s. 1, ch. 74-106; s. 92, ch. 75-220; s. 1023, ch. 97-102; s. 162, ch. 2001-226.
733.813 Purchasers from distributees protected.—If property distributed in kind, or a security interest in that property, is acquired by a purchaser or lender for value from a distributee, the purchaser or lender takes title free of any claims of the estate and incurs no personal liability to the estate, whether or not the distribution was proper. The purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind.
History.—s. 1, ch. 74-106; s. 163, ch. 2001-226.
733.814 Partition for purpose of distribution.—When two or more beneficiaries are entitled to distribution of undivided interests in any property, the personal representative or any beneficiary may petition the court before the estate is closed to partition the property in the same manner as provided by law for civil actions of partition. The court may direct the personal representative to sell any property that cannot be partitioned without prejudice to the owners and that cannot be allotted equitably and conveniently.
History.—s. 1, ch. 74-106; s. 164, ch. 2001-226.
733.815 Private contracts among interested persons.—Subject to the rights of creditors and taxing authorities, interested persons may agree among themselves to alter the interests, shares, or amounts to which they are entitled in a written contract executed by them. The personal representative shall abide by the terms of the contract, subject to the personal representative’s obligation to administer the estate for the benefit of interested persons who are not parties to the contract, and to pay costs of administration. Trustees of a testamentary trust are interested persons for the purposes of this section. Nothing in this section relieves trustees of any duties owed to beneficiaries of trusts.
History.—s. 1, ch. 74-106; s. 94, ch. 75-220; s. 1024, ch. 97-102; s. 165, ch. 2001-226.
733.816 Disposition of unclaimed property held by personal representatives.—
(1) In all cases in which there is unclaimed property in the hands of a personal representative that cannot be distributed or paid because of the inability to find the lawful owner or because no lawful owner is known or because the lawful owner refuses to accept the property after a reasonable attempt to distribute it and after notice to that lawful owner, the court shall order the personal representative to sell the property and deposit the proceeds and cash already in hand, after retaining those amounts provided for in subsection (4), with the clerk and receive a receipt, and the clerk shall deposit the funds in the registry of the court to be disposed of as follows:
(a) If the value of the funds is $500 or less, the clerk shall post a notice for 30 days at the courthouse door giving the amount involved, the name of the personal representative, and the other pertinent information that will put interested persons on notice.
(b) If the value of the funds is over $500, the clerk shall publish the notice once a month for 2 consecutive months in a newspaper of general circulation in the county.
After the expiration of 6 months from the posting or first publication, the clerk shall deposit the funds with the Chief Financial Officer after deducting the clerk’s fees and the costs of publication.
(2) Upon receipt of the funds, the Chief Financial Officer shall deposit them to the credit of the State School Fund, to become a part of the school fund. All interest and all income that may accrue from the money while so deposited shall belong to the fund. The funds so deposited shall constitute and be a permanent appropriation for payments by the Chief Financial Officer in obedience to court orders entered as provided by subsection (3).
(3) Within 10 years from the date of deposit with the Chief Financial Officer, on written petition to the court that directed the deposit of the funds and informal notice to the Department of Legal Affairs, and after proof of entitlement, any person entitled to the funds before or after payment to the Chief Financial Officer and deposit as provided by subsection (1) may obtain a court order directing the payment of the funds to that person. All funds deposited with the Chief Financial Officer and not claimed within 10 years from the date of deposit shall escheat to the state for the benefit of the State School Fund.
(4) The personal representative depositing assets with the clerk is permitted to retain from the funds a sufficient amount to pay final costs of administration chargeable to the assets accruing between the deposit of the funds with the clerk of the court and the order of discharge. Any funds so retained which are surplus shall be deposited with the clerk prior to discharge of the personal representative.
(5)(a) If a person entitled to the funds assigns the right to receive payment or part payment to an attorney or private investigative agency which is duly licensed to do business in this state pursuant to a written agreement with that person, the Department of Financial Services is authorized to make distribution in accordance with the assignment.
(b) Payments made to an attorney or private investigative agency shall be promptly deposited into a trust or escrow account which is regularly maintained by the attorney or private investigative agency in a financial institution located in this state and authorized to accept these deposits.
(c) Distribution by the attorney or private investigative agency to the person entitled to the funds shall be made within 10 days following final credit of the deposit into the trust or escrow account at the financial institution, unless a party to the agreement protests the distribution in writing before it is made.
(d) The department shall not be civilly or criminally liable for any funds distributed pursuant to this subsection, provided the distribution is made in good faith.
History.—s. 1, ch. 74-106; s. 95, ch. 75-220; s. 6, ch. 85-79; s. 5, ch. 89-291; s. 10, ch. 89-299; s. 21, ch. 95-401; s. 1025, ch. 97-102; s. 166, ch. 2001-226; s. 1897, ch. 2003-261.
Note.—Created from former s. 734.221.
733.817 Apportionment of estate taxes.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Fiduciary” means a person, other than the personal representative in possession of property included in the measure of the tax, who is liable to the applicable taxing authority for payment of the entire tax to the extent of the value of the property in possession.
(b) “Generation-skipping transfer tax” means the generation-skipping transfer tax imposed by chapter 13 of the Internal Revenue Code on direct skips of interests includable in the federal gross estate or a corresponding tax imposed by any state or country or political subdivision of the foregoing. The term does not include the generation-skipping transfer tax on taxable distributions, taxable terminations, or any other generation-skipping transfer. The terms “direct skip,” “taxable distribution,” and “taxable termination” have the same meanings as provided in s. 2612 of the Internal Revenue Code.
(c) “Governing instrument” means a will, trust instrument, or any other document that controls the transfer of property on the occurrence of the event with respect to which the tax is being levied.
(d) “Gross estate” means the gross estate, as determined by the Internal Revenue Code with respect to the federal estate tax and the Florida estate tax, and as that concept is otherwise determined by the estate, inheritance, or death tax laws of the particular state, country, or political subdivision whose tax is being apportioned.
(e) “Included in the measure of the tax” means for each separate tax that an interest may incur, only interests included in the measure of that particular tax are considered. As used in this section, the term does not include:
1. Any interest, whether passing under the will or not, to the extent the interest is initially deductible from the gross estate, without regard to any subsequent reduction of the deduction by reason of the charge of any part of the applicable tax to the interest. If an election is required for deductibility, an interest is not initially deductible unless the election for deductibility is allowed.
2. Interests or amounts that are not included in the gross estate but are included in the amount upon which the applicable tax is computed, such as adjusted taxable gifts pursuant to s. 2001 of the Internal Revenue Code.
3. Gift taxes included in the gross estate pursuant to s. 2035 of the Internal Revenue Code and the portion of any inter vivos transfer included in the gross estate pursuant to s. 529 of the Internal Revenue Code, notwithstanding inclusion in the gross estate.
(f) “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
(g) “Net tax” means the net tax payable to the particular state, country, or political subdivision whose tax is being apportioned, after taking into account all credits against the applicable tax except as provided in this section. With respect to the federal estate tax, net tax is determined after taking into account all credits against the tax except for the credit for foreign death taxes and except for the credit or deduction for state taxes imposed by states other than this state.
(h) “Nonresiduary devise” means any devise that is not a residuary devise.
(i) “Nonresiduary interest,” in connection with a trust, means any interest in a trust which is not a residuary interest.
(j) “Recipient” means, with respect to property or an interest in property included in the gross estate, an heir at law in an intestate estate; devisee in a testate estate; beneficiary of a trust; beneficiary of a life insurance policy, annuity, or other contractual right; surviving tenant; taker as a result of the exercise or in default of the exercise of a general power of appointment; person who receives or is to receive the property or an interest in the property; or person in possession of the property, other than a creditor.
(k) “Residuary devise” has the meaning in s. 731.201.
(l) “Residuary interest,” in connection with a trust, means an interest in the assets of a trust which remain after provision for any distribution that is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount.
(m) “Revocable trust” means a trust as described in s. 733.707(3).
(n) “Section 2044 interest” means an interest included in the measure of the tax by reason of s. 2044 of the Internal Revenue Code.
(o) “State” means any state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.
(p) “Tax” means any estate tax, inheritance tax, generation-skipping transfer tax, or other tax levied or assessed under the laws of this or any other state, the United States, any other country, or any political subdivision of the foregoing, as finally determined, which is imposed as a result of the death of the decedent. The term also includes any interest or penalties imposed in addition to the tax. Unless the context indicates otherwise, the term means each separate tax. The term does not include any additional estate tax imposed by s. 2032A(c) or s. 2057(f) of the Internal Revenue Code or a corresponding tax imposed by any state or country or political subdivision of the foregoing. The additional estate tax imposed shall be apportioned as provided in s. 2032A or s. 2057 of the Internal Revenue Code.
(q) “Temporary interest” means an interest in income or an estate for a specific period of time, for life, or for some other period controlled by reference to extrinsic events, whether or not in trust.
(r) “Tentative Florida tax” with respect to any property means the net Florida estate tax that would have been attributable to that property if no tax were payable to any other state in respect of that property.
(s) “Value” means the pecuniary worth of the interest involved as finally determined for purposes of the applicable tax after deducting any debt, expense, or other deduction chargeable to it for which a deduction was allowed in determining the amount of the applicable tax. A lien or other encumbrance is not regarded as chargeable to a particular interest to the extent that it will be paid from other interests. The value of an interest is not reduced by reason of the charge against it of any part of the tax, except as provided in paragraph (3)(a).
(2) ALLOCATION OF TAX.—Except as effectively directed in the governing instrument pursuant to subsection (4), the net tax attributable to the interests included in the measure of each tax shall be determined by the proportion that the value of each interest included in the measure of the tax bears to the total value of all interests included in the measure of the tax. Notwithstanding the foregoing provision of this subsection and except as effectively directed in the governing instrument:
(a) The net tax attributable to section 2044 interests shall be determined in the manner provided for the federal estate tax in s. 2207A of the Internal Revenue Code, and the amount so determined shall be deducted from the tax to determine the net tax attributable to all other interests included in the measure of the tax.
(b) The foreign tax credit allowed with respect to the federal estate tax shall be allocated among the recipients of interests finally charged with the payment of the foreign tax in reduction of any federal estate tax chargeable to the recipients of the foreign interests, whether or not any federal estate tax is attributable to the foreign interests. Any excess of the foreign tax credit shall be applied to reduce proportionately the net amount of federal estate tax chargeable to the remaining recipients of the interests included in the measure of the federal estate tax.
(c) The reduction in the net tax attributable to the deduction for state death taxes allowed by s. 2058 of the Internal Revenue Code shall be allocated to the recipients of the interests that produced the deduction. For this purpose, the reduction in the net tax shall be calculated in the manner provided for interests other than those described in paragraph (a).
(d) The reduction in the Florida tax, if one is imposed, on the estate of a Florida resident for tax paid to another state shall be allocated as follows:
1. If the net tax paid to another state is greater than or equal to the tentative Florida tax attributable to the property subject to tax in the other state, none of the Florida tax shall be attributable to that property.
2. If the net tax paid to another state is less than the tentative Florida tax attributable to the property subject to tax in the other state, the net Florida tax attributable to the property subject to tax in the other state shall be the excess of the amount of the tentative Florida tax attributable to the property over the net tax payable to the other state with respect to the property.
3. Any remaining net Florida tax shall be attributable to property included in the measure of the Florida tax exclusive of the property subject to tax in another state.
4. The net federal tax attributable to the property subject to tax in the other state shall be determined as if the property were located in that state.
(e) The net tax attributable to a temporary interest, if any, is regarded as attributable to the principal that supports the temporary interest.
(3) APPORTIONMENT OF TAX.—Except as otherwise effectively directed in the governing instrument pursuant to subsection (4), the net tax attributable to each interest shall be apportioned as follows:
(a) Generation-skipping transfer tax.—Any federal or state generation-skipping transfer tax shall be apportioned as provided in s. 2603 of the Internal Revenue Code after the application of the remaining provisions of this subsection to taxes other than the generation-skipping transfer tax.
(b) Section 2044 interests.—The net tax attributable to section 2044 interests shall be apportioned among the recipients of the section 2044 interests in the proportion that the value of each section 2044 interest bears to the total of all section 2044 interests. The net tax apportioned by this paragraph to section 2044 interests that pass in the manner described in paragraph (c) or paragraph (d) shall be apportioned to the section 2044 interests in the manner described in those paragraphs before the apportionment of the net tax attributable to the other interests passing as provided in those paragraphs. The net tax attributable to the interests other than the section 2044 interests which pass in the manner described in paragraph (c) or paragraph (d) shall be apportioned only to such other interests pursuant to those paragraphs.
(c) Wills.—The net tax attributable to property passing under the decedent’s will shall be apportioned in the following order of priority:
1. The net tax attributable to nonresiduary devises shall be charged to and paid from the residuary estate, whether or not all interests in the residuary estate are included in the measure of the tax. If the residuary estate is insufficient to pay the net tax attributable to all nonresiduary devises, the balance of the net tax attributable to nonresiduary devises shall be apportioned among the recipients of the nonresiduary devises in the proportion that the value of each nonresiduary devise included in the measure of the tax bears to the total of all nonresiduary devises included in the measure of the tax.
2. The net tax attributable to residuary devises shall be apportioned among the recipients of the residuary devises included in the measure of the tax in the proportion that the value of each residuary devise included in the measure of the tax bears to the total of all residuary devises included in the measure of the tax. If the residuary estate is insufficient to pay the net tax attributable to all residuary devises, the balance of the net tax attributable to residuary devises shall be apportioned among the recipients of the nonresiduary devises in the proportion that the value of each nonresiduary devise included in the measure of the tax bears to the total of all nonresiduary devises included in the measure of the tax.
(d) Trusts.—The net tax attributable to property passing under the terms of any trust other than a trust created in the decedent’s will shall be apportioned in the following order of priority:
1. The net tax attributable to nonresiduary interests of the trust shall be charged to and paid from the residuary portion of the trust, whether or not all interests in the residuary portion are included in the measure of the tax. If the residuary portion is insufficient to pay the net tax attributable to all nonresiduary interests, the balance of the net tax attributable to nonresiduary interests shall be apportioned among the recipients of the nonresiduary interests in the proportion that the value of each nonresiduary interest included in the measure of the tax bears to the total of all nonresiduary interests included in the measure of the tax.
2. The net tax attributable to residuary interests of the trust shall be apportioned among the recipients of the residuary interests of the trust included in the measure of the tax in the proportion that the value of each residuary interest included in the measure of the tax bears to the total of all residuary interests of the trust included in the measure of the tax. If the residuary portion is insufficient to pay the net tax attributable to all residuary interests, the balance of the net tax attributable to residuary interests shall be apportioned among the recipients of the nonresiduary interests in the proportion that the value of each nonresiduary interest included in the measure of the tax bears to the total of all nonresiduary interests included in the measure of the tax.
Except as provided in paragraph (g), this paragraph applies separately for each trust.
(e) Protected homestead, exempt property, and family allowance.—
1. The net tax attributable to an interest in protected homestead, exempt property, and the family allowance determined under s. 732.403 shall be apportioned against the recipients of other interests in the estate or passing under any revocable trust in the following order of priority:
a. Class I.—Recipients of interests passing by intestacy that are included in the measure of the federal estate tax.
b. Class II.—Recipients of residuary devises, residuary interests, and pretermitted shares under ss. 732.301 and 732.302 that are included in the measure of the federal estate tax.
c. Class III.—Recipients of nonresiduary devises and nonresiduary interests that are included in the measure of the federal estate tax.
2. Any net tax apportioned to a class pursuant to this paragraph shall be apportioned among each recipient in the class in the proportion that the value of the interest of each bears to the total value of all interests included in that class. A tax may not be apportioned under this paragraph to the portion of any interest applied in satisfaction of the elective share whether or not included in the measure of the tax. For purposes of this paragraph, if the value of the interests described in s. 732.2075(1) exceeds the amount of the elective share, the elective share shall be treated as satisfied first from interests other than those described in classes I, II, and III, and to the extent that those interests are insufficient to satisfy the elective share, from the interests passing to or for the benefit of the surviving spouse described in classes I, II, and III, beginning with those described in class I, until the elective share is satisfied. This paragraph has priority over paragraphs (a) and (h).
3. The balance of the net tax attributable to any interest in protected homestead, exempt property, and the family allowance determined under s. 732.403 which is not apportioned under the preceding provisions of this paragraph shall be apportioned to the recipients of those interests included in the measure of the tax in the proportion that the value of each bears to the total value of those interests included in the measure of the tax.
(f) Construction.—For purposes of this subsection:
1. If the decedent’s estate is the beneficiary of a life insurance policy, annuity, or contractual right included in the decedent’s gross estate, or is the taker as a result of the exercise or default in exercise of a general power of appointment held by the decedent, that interest shall be regarded as passing under the terms of the decedent’s will for the purposes of paragraph (c) or by intestacy if not disposed of by will. Additionally, any interest included in the measure of the tax by reason of s. 2041 of the Internal Revenue Code passing to the decedent’s creditors or the creditors of the decedent’s estate shall be regarded as passing to the decedent’s estate for the purpose of this subparagraph.
2. If a trust is the beneficiary of a life insurance policy, annuity, or contractual right included in the decedent’s gross estate, or is the taker as a result of the exercise or default in exercise of a general power of appointment held by the decedent, that interest shall be regarded as passing under the trust for purposes of paragraph (d).
(g) Common instrument construction.—In the application of this subsection, paragraphs (b)-(f) shall be applied to apportion the net tax to the recipients under certain governing instruments as if all recipients under those instruments, other than the estate or revocable trust itself, were taking under a common instrument. This construction applies to the following:
1. The decedent’s will and revocable trust if the estate is a beneficiary of the revocable trust or if the revocable trust is a beneficiary of the estate.
2. A revocable trust of the decedent and another revocable trust of the decedent if either trust is the beneficiary of the other trust.
(h) Other interests.—The net tax that is not apportioned to interests under paragraphs (b)-(g), including, but not limited to, the net tax attributable to interests passing by intestacy, interests applied in satisfaction of the elective share pursuant to s. 732.2075(2), interests passing by reason of the exercise or nonexercise of a general power of appointment, jointly held interests passing by survivorship, life insurance, properties in which the decedent held a reversionary or revocable interest, annuities, and contractual rights, shall be apportioned among the recipients of the remaining interests included in the measure of the tax in the proportion that the value of each such interest bears to the total value of all remaining interests included in the measure of the tax.
(i) Assessment of liability by court.—If the court finds that:
1. It is inequitable to apportion interest or penalties, or both, in the manner provided in paragraphs (a)-(h), the court may assess liability for the payment thereof in the manner that the court finds equitable.
2. The payment of any tax was not effectively directed in the governing instrument pursuant to subsection (4) and that such tax is not apportioned by this subsection, the court may assess liability for the payment of such tax in the manner that the court finds equitable.
(4) DIRECTION AGAINST APPORTIONMENT.—
(a) Except as provided in this subsection, a governing instrument may not direct that taxes be paid from property other than that passing under the governing instrument.
(b) For a direction in a governing instrument to be effective to direct payment of taxes attributable to property passing under the governing instrument in a manner different from that provided in this section, the direction must be express.
(c) For a direction in a governing instrument to be effective to direct payment of taxes attributable to property not passing under the governing instrument from property passing under the governing instrument, the governing instrument must expressly direct that the property passing under the governing instrument bear the burden of taxation for property not passing under the governing instrument. Except as provided in paragraph (d), a direction in the governing instrument to the effect that all taxes are to be paid from property passing under the governing instrument whether attributable to property passing under the governing instrument or otherwise shall be effective to direct payment from property passing under the governing instrument of taxes attributable to property not passing under the governing instrument.
(d) In addition to satisfying the other provisions of this subsection:
1.a. For a direction in the decedent’s will or revocable trust to be effective in waiving the right of recovery provided in s. 2207A of the Internal Revenue Code for the tax attributable to section 2044 interests, and for any tax imposed by Florida based upon such section 2044 interests, the direction must expressly waive that right of recovery. An express direction that property passing under the will or revocable trust bear the tax imposed by s. 2044 of the Internal Revenue Code is deemed an express waiver of the right of recovery provided in s. 2207A of the Internal Revenue Code. A reference to “qualified terminable interest property,” “QTIP,” or property in which the decedent had a “qualifying income interest for life” is deemed to be a reference to property upon which tax is imposed by s. 2044 of the Internal Revenue Code which is subject to the right of recovery provided in s. 2207A of the Internal Revenue Code.
b. If property is included in the gross estate pursuant to ss. 2041 and 2044 of the Internal Revenue Code, the property is deemed included under s. 2044, and not s. 2041, for purposes of allocation and apportionment of the tax.
2. For a direction in the decedent’s will or revocable trust to be effective in waiving the right of recovery provided in s. 2207B of the Internal Revenue Code for tax imposed by reason of s. 2036 of the Internal Revenue Code, and any tax imposed by Florida based upon s. 2036 of the Internal Revenue Code, the direction must expressly waive that right of recovery. An express direction that property passing under the will or revocable trust bear the tax imposed by s. 2036 of the Internal Revenue Code is deemed an express waiver of the right of recovery provided in s. 2207B of the Internal Revenue Code. If property is included in the gross estate pursuant to ss. 2036 and 2038 of the Internal Revenue Code, the property is deemed included under s. 2038, not s. 2036, for purposes of allocation and apportionment of the tax, and there is no right of recovery under s. 2207B of the Internal Revenue Code.
3. A general statement in the decedent’s will or revocable trust waiving all rights of reimbursement or recovery under the Internal Revenue Code is not an express waiver of the rights of recovery provided in s. 2207A or s. 2207B of the Internal Revenue Code.
4. For a direction in a governing instrument to be effective to direct payment of generation-skipping transfer tax in a manner other than as provided in s. 2603 of the Internal Revenue Code, and any tax imposed by Florida based on s. 2601 of the Internal Revenue Code, the direction must specifically reference the tax imposed by s. 2601 of the Internal Revenue Code. A reference to the generation-skipping transfer tax or s. 2603 of the Internal Revenue Code is deemed to be a reference to property upon which tax is imposed by reason of s. 2601 of the Internal Revenue Code.
(e) If the decedent expressly directs by will, the net tax attributable to property over which the decedent held a general power of appointment may be determined in a manner other than as provided in subsection (2) if the net tax attributable to that property does not exceed the difference between the total net tax determined pursuant to subsection (2), determined without regard to this paragraph, and the total net tax that would have been payable if the value of the property subject to such power of appointment had not been included in the decedent’s gross estate. If tax is attributable to one or more section 2044 interests pursuant to subsection (2), the net tax attributable to the section 2044 interests shall be calculated before the application of this paragraph unless the decedent expressly directs otherwise by will.
(f) If the decedent’s will expressly provides that the tax is to be apportioned as provided in the decedent’s revocable trust by specific reference to the revocable trust, an express direction in the revocable trust is deemed to be a direction contained in the will as well as the revocable trust.
(g) An express direction in the decedent’s will to pay tax from the decedent’s revocable trust by specific reference to the revocable trust is effective unless a contrary express direction is contained in the revocable trust.
(h) If governing instruments contain effective directions that conflict as to payment of taxes, the most recently executed tax apportionment provision controls to the extent of the conflict. For the purpose of this subsection, if a will or other governing instrument is amended, the date of the codicil to the will or amendment to the governing instrument is regarded as the date of the will or other governing instrument only if the codicil or amendment contains an express tax apportionment provision or an express modification of the tax apportionment provision. A general statement ratifying or republishing all provisions not otherwise amended does not meet this condition. If the decedent’s will and another governing instrument were executed on the same date, the will is deemed executed after the other governing instrument. The earlier conflicting governing instrument controls as to any tax remaining unpaid after the application of the later conflicting governing instrument.
(i) A grant of permission or authority in a governing instrument to request payment of tax from property passing under another governing instrument is not a direction apportioning the tax to the property passing under the other governing instrument. A grant of permission or authority in a governing instrument to pay tax attributable to property not passing under the governing instrument is not a direction apportioning the tax to property passing under the governing instrument.
(j) This section applies to any tax remaining to be paid after the application of any effective express directions. An effective express direction for payment of tax on specific property or a type of property in a manner different from that provided in this section is not effective as an express direction for payment of tax on other property or other types of property included in the measure of the tax.
(5) TRANSFER OF PROPERTY.—A personal representative or fiduciary shall not be required to transfer to a recipient any property reasonably anticipated to be necessary for the payment of taxes. Further, the personal representative or fiduciary is not required to transfer any property to the recipient until the amount of the tax due from the recipient is paid by the recipient. If property is transferred before final apportionment of the tax, the recipient shall provide a bond or other security for his or her apportioned liability in the amount and form prescribed by the personal representative or fiduciary.
(6) ORDER OF APPORTIONMENT.—
(a) The personal representative may petition at any time for an order of apportionment. If administration of the decedent’s estate has not commenced at any time after 90 days from the decedent’s death, any fiduciary may petition for an order of apportionment in the court in which venue would be proper for administration of the decedent’s estate. Notice of the petition for order of apportionment must be served on all interested persons in the manner provided for service of formal notice. At any time after 6 months from the decedent’s death, any recipient may petition the court for an order of apportionment.
(b) The court shall determine all issues concerning apportionment. If the tax to be apportioned has not been finally determined, the court shall determine the probable tax due or to become due from all interested persons, apportion the probable tax, and retain jurisdiction over the parties and issues to modify the order of apportionment as appropriate until after the tax is finally determined.
(7) DEFICIENCY.—
(a) If the personal representative or fiduciary does not have possession of sufficient property otherwise distributable to the recipient to pay the tax apportioned to the recipient, whether under this section, the Internal Revenue Code, or the governing instrument, if applicable, the personal representative or fiduciary shall recover the deficiency in tax so apportioned to the recipient:
1. From the fiduciary in possession of the property to which the tax is apportioned, if any; and
2. To the extent of any deficiency in collection from the fiduciary, or to the extent collection from the fiduciary is excused pursuant to subsection (8) and in all other cases, from the recipient of the property to which the tax is apportioned, unless relieved of this duty as provided in subsection (8).
(b) In any action to recover the tax apportioned, the order of apportionment is prima facie correct.
(c) In any action for the enforcement of an order of apportionment, the court shall award taxable costs as in chancery actions, including reasonable attorney fees, and may award penalties and interest on the unpaid tax in accordance with equitable principles.
(d) This subsection does not authorize the recovery of any tax from a company issuing life insurance included in the gross estate, or from a bank, trust company, savings and loan association, or similar institution with respect to any account in the name of the decedent and any other person which passed by operation of law at the decedent’s death.
(8) RELIEF FROM DUTY.—
(a) A personal representative or fiduciary who has the duty under this section of collecting the apportioned tax from recipients may be relieved of the duty to collect the tax by an order of the court finding that:
1. The estimated court costs and attorney fees in collecting the apportioned tax from a person against whom the tax has been apportioned will approximate or exceed the amount of the recovery;
2. The person against whom the tax has been apportioned is a resident of a foreign country other than Canada and refuses to pay the apportioned tax on demand; or
3. It is impracticable to enforce contribution of the apportioned tax against a person against whom the tax has been apportioned in view of the improbability of obtaining a judgment or the improbability of collection under any judgment that might be obtained, or otherwise.
(b) A personal representative or fiduciary is not liable for failure to attempt to enforce collection if the personal representative or fiduciary reasonably believes that collection would have been economically impracticable.
(9) UNCOLLECTED TAX.—Any apportioned tax that is not collected shall be reapportioned in accordance with this section as if the portion of the property to which the uncollected tax had been apportioned had been exempt.
(10) CONTRIBUTION.—This section does not limit the right of any person who has paid more than the amount of the tax apportionable to that person, calculated as if all apportioned amounts would be collected, to obtain contribution from those who have not paid the full amount of the tax apportionable to them, calculated as if all apportioned amounts would be collected, and that right is hereby conferred. In any action to enforce contribution, the court shall award taxable costs as in chancery actions, including reasonable attorney fees.
(11) FOREIGN TAX.—This section does not require the personal representative or fiduciary to pay any tax levied or assessed by a foreign country unless specific directions to that effect are contained in the will or other instrument under which the personal representative or fiduciary is acting.
History.—s. 1, ch. 74-106; s. 95, ch. 75-220; s. 41, ch. 77-87; s. 273, ch. 79-400; s. 20, ch. 92-200; s. 1026, ch. 97-102; s. 9, ch. 97-240; s. 13, ch. 2000-159; s. 167, ch. 2001-226; s. 39, ch. 2006-217; s. 122, ch. 2010-5; s. 6, ch. 2015-27.
Note.—Created from former s. 734.041.
PART IX
CLOSING ESTATES733.901 Final discharge.
733.903 Subsequent administration.
733.901 Final discharge.—
(1) After administration has been completed, the personal representative shall be discharged.
(2) The discharge of the personal representative shall release the personal representative and shall bar any action against the personal representative, as such or individually, and the surety.
History.—s. 1, ch. 74-106; s. 96, ch. 75-220; s. 42, ch. 77-87; s. 1, ch. 77-174; s. 6, ch. 81-27; s. 29, ch. 95-401; s. 1027, ch. 97-102; s. 168, ch. 2001-226.
Note.—Created from former s. 734.22.
733.903 Subsequent administration.—The final settlement of an estate and the discharge of the personal representative shall not prevent further administration. The order of discharge may not be revoked based upon the discovery of a will or later will.
History.—s. 1, ch. 74-106; s. 96, ch. 75-220; s. 1, ch. 88-110; s. 169, ch. 2001-226.
Note.—Created from former s. 734.26.