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2023 Florida Statutes (including 2023C)
Chapter 735
PROBATE CODE: SMALL ESTATES
PROBATE CODE: SMALL ESTATES
CHAPTER 735
PROBATE CODE: SMALL ESTATES
PART I
SUMMARY ADMINISTRATION(ss. 735.201-735.2063)
PART II
DISPOSITION OF PERSONAL PROPERTY WITHOUTADMINISTRATION
(ss. 735.301-735.304)
PART I
SUMMARY ADMINISTRATION735.201 Summary administration; nature of proceedings.
735.202 May be administered in the same manner as other estates.
735.203 Petition for summary administration.
735.2055 Filing of petition.
735.206 Summary administration distribution.
735.2063 Notice to creditors.
735.201 Summary administration; nature of proceedings.—Summary administration may be had in the administration of either a resident or nonresident decedent’s estate, when it appears:
(1) In a testate estate, that the decedent’s will does not direct administration as required by chapter 733.
(2) That the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years.
History.—s. 1, ch. 74-106; s. 105, ch. 75-220; s. 2, ch. 80-203; s. 13, ch. 89-340; s. 179, ch. 2001-226.
735.202 May be administered in the same manner as other estates.—The estate may be administered in the same manner as the administration of any other estate, or it may be administered as provided in this part.
History.—s. 1, ch. 74-106.
Note.—Created from former s. 735.02.
735.203 Petition for summary administration.—
(1) A petition for summary administration may be filed by any beneficiary or person nominated as personal representative in the decedent’s will offered for probate. The petition must be signed and verified by the surviving spouse, if any, and any beneficiaries except that the joinder in a petition for summary administration is not required of a beneficiary who will receive a full distributive share under the proposed distribution. However, formal notice of the petition must be served on a beneficiary not joining in the petition.
(2) If a person named in subsection (1) has died, is incapacitated, or is a minor, or has conveyed or transferred all interest in the property of the estate, then, as to that person, the petition must be signed and verified by:
(a) The personal representative, if any, of a deceased person or, if none, the surviving spouse, if any, and the beneficiaries;
(b) The guardian of an incapacitated person or a minor; or
(c) The grantee or transferee of any of them shall be authorized to sign and verify the petition instead of the beneficiary or surviving spouse.
(3) If each trustee of a trust that is a beneficiary of the estate of the deceased person is also a petitioner, formal notice of the petition for summary administration shall be served on each qualified beneficiary of the trust as defined in s. 736.0103 unless joinder in, or consent to, the petition is obtained from each qualified beneficiary of the trust.
History.—s. 1, ch. 74-106; s. 107, ch. 75-220; s. 1, ch. 77-174; s. 180, ch. 2001-226; s. 12, ch. 2009-115; s. 16, ch. 2010-132.
Note.—Created from former s. 735.05.
735.2055 Filing of petition.—The petition for summary administration may be filed at any stage of the administration of an estate if it appears that at the time of filing the estate would qualify.
History.—s. 47, ch. 77-87.
735.206 Summary administration distribution.—
(1) Upon the filing of the petition for summary administration, the will, if any, shall be proved in accordance with chapter 733 and be admitted to probate.
(2) Prior to entry of the order of summary administration, the petitioner shall make a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors, serve a copy of the petition on those creditors, and make provision for payment for those creditors to the extent that assets are available.
(3) The court may enter an order of summary administration allowing immediate distribution of the assets to the persons entitled to them.
(4) The order of summary administration and distribution so entered shall have the following effect:
(a) Those to whom specified parts of the decedent’s estate, including exempt property, are assigned by the order shall be entitled to receive and collect the parts and to have the parts transferred to them. They may maintain actions to enforce the right.
(b) Debtors of the decedent, those holding property of the decedent, and those with whom securities or other property of the decedent are registered are authorized and empowered to comply with the order by paying, delivering, or transferring to those specified in the order the parts of the decedent’s estate assigned to them by the order, and the persons so paying, delivering, or transferring shall not be accountable to anyone else for the property.
(c) After the entry of the order, bona fide purchasers for value from those to whom property of the decedent may be assigned by the order shall take the property free of all claims of creditors of the decedent and all rights of the surviving spouse and all other beneficiaries.
(d) Property of the decedent that is not exempt from claims of creditors and that remains in the hands of those to whom it may be assigned by the order shall continue to be liable for claims against the decedent until barred as provided in the code. Any known or reasonably ascertainable creditor who did not receive notice and for whom provision for payment was not made may enforce the claim and, if the creditor prevails, shall be awarded reasonable attorney’s fees as an element of costs against those who joined in the petition.
(e) The recipients of the decedent’s property under the order of summary administration shall be personally liable for a pro rata share of all lawful claims against the estate of the decedent, but only to the extent of the value of the estate of the decedent actually received by each recipient, exclusive of the property exempt from claims of creditors under the constitution and statutes of Florida.
(f) After 2 years from the death of the decedent, neither the decedent’s estate nor those to whom it may be assigned shall be liable for any claim against the decedent, unless proceedings have been taken for the enforcement of the claim.
(g) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of summary administration and distribution may enforce all rights in appropriate proceedings against those who procured the order and, if successful, shall be awarded reasonable attorney’s fees as an element of costs.
History.—s. 1, ch. 74-106; s. 108, ch. 75-220; s. 48, ch. 77-87; s. 1, ch. 77-174; s. 14, ch. 89-340; s. 1035, ch. 97-102; s. 181, ch. 2001-226.
Note.—Created from former s. 735.07.
735.2063 Notice to creditors.—
(1) Any person who has obtained an order of summary administration may publish a notice to creditors according to the relevant requirements of s. 733.2121, notifying all persons having claims or demands against the estate of the decedent that an order of summary administration has been entered by the court. The notice shall specify the total value of the estate and the names and addresses of those to whom it has been assigned by the order.
(2) If proof of publication of the notice is filed with the court, all claims and demands of creditors against the estate of the decedent who are not known or are not reasonably ascertainable shall be forever barred unless the claims and demands are filed with the court within 3 months after the first publication of the notice.
History.—s. 3, ch. 80-203; s. 182, ch. 2001-226; s. 13, ch. 2003-154.
PART II
DISPOSITION OF PERSONAL PROPERTYWITHOUT ADMINISTRATION
735.301 Disposition without administration.
735.302 Income tax refunds in certain cases.
735.303 Payment to successor without court proceedings.
735.304 Disposition without administration of intestate property in small estates.
735.301 Disposition without administration.—
(1) No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the State Constitution, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
(2) Upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that subsection (1) is applicable, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.
(3) Any person, firm, or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from liability thereon.
History.—s. 1, ch. 74-106; s. 111, ch. 75-220; s. 50, ch. 77-87; s. 1, ch. 77-174; s. 275, ch. 79-400; s. 52, ch. 98-421; s. 184, ch. 2001-226.
735.302 Income tax refunds in certain cases.—
(1) In any case when the United States Treasury Department determines that an overpayment of federal income tax exists and the person in whose favor the overpayment is determined is dead at the time the overpayment of tax is to be refunded, and irrespective of whether the decedent had filed a joint and several or separate income tax return, the amount of the overpayment, if not in excess of $2,500, may be refunded as follows:
(a) Directly to the surviving spouse on his or her verified application; or
(b) If there is no surviving spouse, to one of the decedent’s children who is designated in a verified application purporting to be executed by all of the decedent’s children over the age of 14 years.
In either event, the application must show that the decedent was not indebted, that provision has been made for the payment of the decedent’s debts, or that the entire estate is exempt from the claims of creditors under the constitution and statutes of the state, and that no administration of the estate, including summary administration, has been initiated and that none is planned, to the knowledge of the applicant.
(2) If a refund is made to the surviving spouse or designated child pursuant to the application, the refund shall operate as a complete discharge to the United States from liability from any action, claim, or demand by any beneficiary of the decedent or other person. This section shall be construed as establishing the ownership or rights of the payee in the refund.
History.—s. 1, ch. 74-106; s. 112, ch. 75-220; s. 51, ch. 77-87; s. 1, ch. 77-174; s. 185, ch. 2001-226.
Note.—Created from former s. 735.15.
735.303 Payment to successor without court proceedings.—
(1) As used in this section, the term:
(a) “Family member” means:
1. The surviving spouse of the decedent;
2. An adult child of the decedent if the decedent left no surviving spouse;
3. An adult descendant of the decedent if the decedent left no surviving spouse and no surviving adult child; or
4. A parent of the decedent if the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant.
(b) “Qualified account” means a depository account or certificate of deposit held by a financial institution in the sole name of the decedent without a pay-on-death or any other survivor designation.
(2) A financial institution in this state may pay to the family member of a decedent, without any court proceeding, order, or judgment, the funds on deposit in all qualified accounts of the decedent at the financial institution if the total amount of the combined funds in the qualified accounts at the financial institution do not exceed an aggregate total of $1,000. The financial institution may not make such payment earlier than 6 months after the date of the decedent’s death.
(3) In order to receive the funds described in subsection (2), the family member must provide to the financial institution a certified copy of the decedent’s death certificate and a sworn affidavit that includes all of the following:
(a) A statement attesting that the affiant is the surviving spouse, adult child, adult descendant, or parent of the decedent.
1. If the affiant is an adult child of the decedent, the affidavit must attest that the decedent left no surviving spouse.
2. If the affiant is an adult descendant of the decedent, the affidavit must attest that the decedent left no surviving spouse and no surviving adult child.
3. If the affiant is a parent of the decedent, the affidavit must attest that the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant.
(b) The date of death and the address of the decedent’s last residence.
(c) A statement attesting that the total amount in all qualified accounts held by the decedent in all financial institutions known to the affiant does not exceed an aggregate total of $1,000.
(d) A statement acknowledging that a personal representative has not been appointed to administer the decedent’s estate and attesting that no probate proceeding or summary administration procedure has been commenced with respect to the estate.
(e) A statement acknowledging that the affiant has no knowledge of the existence of any last will and testament or other document or agreement relating to the distribution of the decedent’s estate.
(f) A statement acknowledging that the payment of the funds constitutes a full release and discharge of the financial institution’s obligation regarding the amount paid.
(g) A statement acknowledging that the affiant understands that he or she is personally liable to the creditors of the decedent and other persons rightfully entitled to the funds under the Florida Probate Code, to the extent the amount paid exceeds the amount properly attributable to the affiant’s share.
(h) A statement acknowledging that the affiant understands that making a false statement in the affidavit may be punishable as a criminal offense.
(4) The family member may use an affidavit in substantially the following form to fulfill the requirements of subsection (3):
AFFIDAVIT UNDER
SECTION 735.303, FLORIDA STATUTES,
TO OBTAIN BANK PROPERTY OF DECEASED
ACCOUNT HOLDER: (Name of decedent)
State of
County of
Before the undersigned authority personally appeared (name of affiant) , of (residential address of affiant) , who has been sworn and says the following statements are true:
(a) The affiant is (initial one of the following responses):
The surviving spouse of the decedent.
A surviving adult child of the decedent, and the decedent left no surviving spouse.
A surviving adult descendant of the decedent, and the decedent left no surviving spouse and no surviving adult child.
A surviving parent of the decedent, and the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant.
(b) As shown in the certified death certificate, the date of death of the decedent was (date of death) , and the address of the decedent’s last residence was (address of last residence) .
(c) The affiant is entitled to payment of the funds in the decedent’s depository accounts and certificates of deposit held by the financial institution (name of financial institution) . The total amount in all qualified accounts held by the decedent in all financial institutions known to the affiant does not exceed an aggregate total of $1,000. The affiant requests full payment from the financial institution.
(d) A personal representative has not been appointed to administer the decedent’s estate, and no probate proceeding or summary administration procedure has been commenced with respect to the estate.
(e) The affiant has no knowledge of any last will and testament or other document or agreement relating to the distribution of the decedent’s estate.
(f) The payment of the funds constitutes a full release and discharge of the financial institution regarding the amount paid.
(g) The affiant understands that he or she is personally liable to the creditors of the decedent and other persons rightfully entitled to the funds under the Florida Probate Code, to the extent the amount paid exceeds the amount properly attributable to the affiant’s share.
(h) The affiant understands that making a false statement in this affidavit may be punishable as a criminal offense.
By (signature of affiant)
Sworn to and subscribed before me this day of by (name of affiant) , who is personally known to me or produced as identification, and did take an oath.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
My commission expires: (date of expiration of commission)
(5) The financial institution is not required to determine whether the contents of the sworn affidavit are truthful. The payment of the funds by the financial institution to the affiant constitutes the financial institution’s full release and discharge regarding the amount paid. A person does not have a right or cause of action against the financial institution for taking an action, or for failing to take an action, in connection with the affidavit or the payment of the funds.
(6) The family member who withdraws the funds under this section is personally liable to the creditors of the decedent and any other person rightfully entitled to the funds under the Florida Probate Code, to the extent the amount paid exceeds the amount properly attributable to the family member’s share.
(7) The financial institution shall maintain a copy or an image of the affidavit in accordance with its customary retention policies. If a surviving spouse or descendant of the decedent requests a copy of the affidavit during such time, the financial institution may provide a copy of the affidavit to the requesting surviving spouse or descendant of the decedent.
(8) In addition to any other penalty provided by law, a person who knowingly makes a false statement in a sworn affidavit given to a financial institution to receive a decedent’s funds under this section commits theft, punishable as provided in s. 812.014.
History.—s. 2, ch. 2020-110.
735.304 Disposition without administration of intestate property in small estates.—
(1) No administration shall be required or formal proceedings instituted upon the estate of a decedent who has died intestate leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the State Constitution, and nonexempt personal property the value of which does not exceed the sum of $10,000 and the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness, provided the decedent has been deceased for more than 1 year and no administration of the decedent’s estate is pending in this state.
(2) Any heir at law of the decedent entitled to a share of the intestate estate pursuant to s. 732.102 or s. 732.103 may by affidavit request distribution of assets of the decedent through informal application under this section. The affidavit must be signed and verified by the surviving spouse, if any, and any heirs at law, except that joinder in the affidavit is not required of an heir who will receive a full intestate share under the proposed distribution of the personal property. Before the filing of the affidavit, the affiant must make a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors, and the proposed distribution must make provision for payment of those creditors to the extent that assets are available or the creditors must consent to the proposed distribution. The affidavit must be served in the manner of formal notice upon all heirs at law who have not joined in the affidavit; upon all known or reasonably ascertainable creditors of the decedent; and, if the decedent at the time of death was over the age of 55 years of age, upon the Agency for Health Care Administration.
(3) If the court is satisfied that subsection (1) is applicable and the affidavit filed by the heir at law meets the requirements of subsection (2), the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, disposition, delivery, or assignment of the tangible or intangible personal property to those persons entitled.
(a) Any individual, corporation, or other person paying, transferring, delivering, or assigning personal property under the authorization shall be forever discharged from liability thereon.
(b) Bona fide purchasers for value from those to whom personal property of the decedent has been paid, transferred, delivered, or assigned shall take the property free of all claims of creditors of the decedent and all rights of the surviving spouse and all other beneficiaries or heirs at law of the decedent.
(c) Personal property of the decedent that is not exempt from claims of creditors and that remains in the possession of those to whom it has been paid, delivered, transferred, or assigned shall continue to be liable for claims against the decedent until barred as provided in the Florida Probate Code. Any known or reasonably ascertainable creditor who did not consent to the proposed distribution and for whom provision for payment was not made may enforce the claim and, if the creditor prevails, shall be awarded costs, including reasonable attorney fees, against those who joined in the affidavit.
(d) Recipients of the decedent’s personal property under this section shall be personally liable for a pro rata share of all lawful claims against the estate of the decedent, but only to the extent of the value on the date of distribution of the personal property actually received by each recipient, exclusive of the property exempt from claims of creditors under the constitution and statutes of Florida.
(e) Except as otherwise provided in s. 733.710, after 2 years from the death of the decedent, neither the decedent’s estate nor those to whom it may be distributed shall be liable for any claim against the decedent, unless within that time proceedings have been taken for the enforcement of the claim.
(f) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the distribution under this section may enforce all rights in appropriate proceedings against those who signed the affidavit or received distribution of personal property and, if successful, shall be awarded costs including reasonable attorney fees as in chancery actions.
History.—s. 3, ch. 2020-110.