Senate Bill sb0402

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2001                                   SB 402

    By Senator Burt





    16-476-01                                           See HB 137

  1                      A bill to be entitled

  2         An act relating to probate; amending s. 63.172,

  3         F.S.; providing for the right of inheritance

  4         with respect to adoption; amending s. 409.9101,

  5         F.S.; revising provisions with respect to

  6         recovery of payments made on behalf of certain

  7         Medicaid-eligible persons; amending s. 655.936,

  8         F.S., relating to the opening of a decedent's

  9         safe-deposit box; amending s. 731.005, F.S.,

10         relating to the Florida Probate Code; amending

11         s. 731.011, F.S.; providing reference to the

12         Florida Probate Rules with respect to the

13         determination of substantive rights under the

14         Florida Probate Code; amending s. 731.104,

15         F.S.; revising provisions with respect to the

16         verification of documents; amending s. 731.106,

17         F.S., relating to the assets of

18         nondomiciliaries; repealing s. 731.107, F.S.,

19         relating to adversary proceedings; amending s.

20         731.110, F.S.; revising provisions with respect

21         to proceedings concerning caveat; repealing s.

22         731.111, F.S., relating to notice to creditors;

23         amending s. 731.201, F.S.; revising general

24         definitions with respect to the Florida Probate

25         Code; amending s. 731.301, F.S.; revising

26         provisions with respect to notice; amending s.

27         731.303, F.S., relating to representation;

28         amending s. 732.101, F.S., relating to

29         intestate estates; amending s. 732.102, F.S.;

30         revising provisions with respect to the share

31         of the spouse; increasing the monetary amount

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         of certain shares; amending s. 732.103, F.S.,

  2         relating to the share of certain heirs;

  3         amending s. 732.107, F.S.; revising provisions

  4         with respect to escheat; amending s. 732.1101,

  5         F.S.; providing that aliens shall have the same

  6         right of inheritance as citizens; amending s.

  7         732.2025, F.S.; redefining the term "qualifying

  8         special needs trust" or "supplemental needs

  9         trust"; amending s. 732.2085, F.S., relating to

10         liability of direct recipients and

11         beneficiaries; amending s. 732.2125, F.S.;

12         revising provisions with respect to the right

13         of election; amending s. 732.2135, F.S.;

14         revising provisions with respect to time of

15         election, extensions, and withdrawal; amending

16         s. 732.2145, F.S.; revising provisions with

17         respect to the order of contribution; amending

18         s. 732.2155, F.S.; revising provisions with

19         respect to the effective date of certain

20         trusts; amending s. 732.218, F.S.; revising

21         provisions with respect to rebuttable

22         presumptions; amending s. 732.219, F.S.,

23         relating to disposition upon death; amending s.

24         732.221, F.S.; revising provisions with respect

25         to perfection of title of personal

26         representative or beneficiary; amending s.

27         732.222, F.S., relating to the purchaser for

28         value or lender; amending s. 732.223, F.S.;

29         revising provisions with respect to perfection

30         of title of surviving spouse; amending s.

31         732.302, F.S.; revising provisions with respect

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         to pretermitted children; amending s. 732.401,

  2         F.S.; revising provisions with respect to

  3         descent of homestead; amending s. 732.4015,

  4         F.S.; revising provisions with respect to the

  5         definition of the terms "owner" and "devise"

  6         concerning homestead; amending s. 732.402,

  7         F.S.; revising provisions with respect to

  8         exempt property; amending s. 732.403, F.S.;

  9         revising provisions with respect to family

10         allowance; amending s. 732.501, F.S.; revising

11         provisions with respect to who may make a will;

12         amending s. 732.502, F.S.; revising provisions

13         with respect to execution of wills; amending s.

14         732.503, F.S.; revising provisions with respect

15         to self-proof of will; amending s. 732.505,

16         F.S.; revising provisions with respect to

17         revocation by writing; amending s. 732.507,

18         F.S.; revising provisions with respect to

19         effect of subsequent marriage, birth, or

20         dissolution of marriage; amending s. 732.513,

21         F.S.; revising provisions with respect to

22         devises to trustees; amending s. 732.514, F.S.,

23         relating to vesting of devises; amending s.

24         732.515, F.S.; revising provisions with respect

25         to separate writing identifying devises of

26         tangible property; amending s. 732.6005, F.S.,

27         relating to rules of construction and

28         intention; amending s. 732.601, F.S.; revising

29         provisions with respect to the Simultaneous

30         Death Law; amending s. 732.603, F.S.; revising

31         provisions with respect to antilapse, deceased

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         devises, and class gifts; amending s. 732.604,

  2         F.S., relating to the failure of a testamentary

  3         provision; amending s. 732.605, F.S., relating

  4         to change in securities, accessions, and

  5         nonademption; amending s. 732.606, F.S.,

  6         relating to nonademption of specific devises in

  7         certain cases; amending s. 732.701, F.S.;

  8         providing for agreements concerning succession

  9         executed by a nonresident under certain

10         circumstances; amending s. 732.702, F.S.;

11         revising provisions with respect to waiver of

12         spousal rights; amending s. 732.801, F.S.;

13         revising provisions with respect to disclaimer

14         of interests in property passing by will or

15         intestate succession or under certain powers of

16         appointment; amending s. 732.804, F.S.;

17         providing for provisions relating to

18         disposition of the body; amending s. 732.901,

19         F.S., relating to production of wills,

20         eliminating provisions with respect to willful

21         failure to deposit the will; transferring and

22         renumbering ss. 732.910, 732.911, 732.912,

23         732.913, 732.914, 732.915, 732.916, 732.917,

24         732.918, 732.9185, 732.919, 732.921, 732.9215,

25         732.92155, 732.9216, and 732.922, F.S., to

26         chapter 765, F.S.; amending s. 733.101, F.S.,

27         relating to the venue of probate proceedings;

28         amending s. 733.103, F.S., relating to the

29         effect of probate; amending s. 733.104, F.S.;

30         revising provisions with respect to the

31         suspension of the statute of limitations in

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         favor of the personal representative; amending

  2         s. 733.105, F.S.; revising provisions with

  3         respect to the determination of beneficiaries;

  4         amending s. 733.106, F.S.; revising provisions

  5         with respect to costs and attorney fees;

  6         amending s. 733.107, F.S., relating to the

  7         burden of proof in contests; amending s.

  8         733.109, F.S.; revising provisions with respect

  9         to the revocation of probate; amending s.

10         733.201, F.S., relating to proof of wills;

11         amending s. 733.202, F.S.; providing that any

12         interested person may petition for

13         administration; repealing s. 733.203, F.S.,

14         relating to when notice is required; amending

15         s. 733.204, F.S.; revising provisions with

16         respect to the probate of a will written in a

17         foreign language; amending s. 733.205, F.S.,

18         relating to the probate of a notarial will;

19         amending s. 733.206, F.S., relating to the

20         probate of a resident after foreign probate;

21         amending s. 733.207, F.S.; revising

22         requirements with respect to the establishment

23         and probate of a lost or destroyed will;

24         amending s. 733.208, F.S.; revising provisions

25         with respect to the discovery of a later will;

26         amending s. 733.209, F.S.; providing

27         requirements with respect to the estates of

28         missing persons; amending s. 733.212, F.S.;

29         revising provisions with respect to the notice

30         of administration and filing of objections;

31         creating s. 733.2121, F.S.; providing for

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         notice to creditors and the filing of claims;

  2         amending s. 733.2123, F.S., relating to

  3         adjudication before issuance of letters;

  4         amending s. 733.213, F.S.; providing that a

  5         will may not be construed until after it has

  6         been admitted to probate; amending s. 733.301,

  7         F.S.; revising provisions with respect to

  8         preference in the appointment of the personal

  9         representative; amending s. 733.302, F.S.;

10         revising provisions with respect to who may be

11         appointed personal representative; amending s.

12         733.305, F.S., relating to trust companies and

13         other corporations and associations; amending

14         s. 733.306, F.S.; revising provisions with

15         respect to the effect of the appointment of a

16         debtor; amending s. 733.307, F.S., relating to

17         succession of administration; amending s.

18         733.308, F.S., relating to the administrator ad

19         litem; amending s. 733.309, F.S., relating to

20         the executor de son tort; creating s. 733.310,

21         F.S.; providing for when a personal

22         representative is not qualified; repealing s.

23         733.401, F.S., relating to the issuance of

24         letters; amending s. 733.402, F.S.; revising

25         provisions with respect to the bond of a

26         fiduciary; amending s. 733.403, F.S.; revising

27         provisions with respect to the amount of the

28         bond; amending s. 733.404, F.S., relating to

29         the liability of the surety; amending s.

30         733.405, F.S.; revising provisions with respect

31         to the release of surety; amending s. 733.406,

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         F.S.; revising provisions with respect to bond

  2         premium allowable as an expense of

  3         administration; amending s. 733.501, F.S.;

  4         revising provisions with respect to curators;

  5         amending s. 733.502, F.S.; revising provisions

  6         with respect to the resignation of the personal

  7         representative; amending s. 733.503, F.S.;

  8         providing for the appointment of a successor

  9         upon the resignation of the personal

10         representative; creating s. 733.5035, F.S.;

11         providing for the surrender of assets after

12         resignation; creating s. 733.5036, F.S.;

13         providing for accounting and discharge

14         following resignation; amending s. 733.504,

15         F.S.; revising provisions with respect to the

16         removal of the personal representative;

17         amending s. 733.505, F.S.; providing that a

18         petition for removal shall be filed in the

19         court having jurisdiction of the

20         administration; amending s. 733.506, F.S.;

21         revising provisions with respect to proceedings

22         for removal; creating s. 733.5061, F.S.;

23         providing for the appointment of a successor

24         upon removal of the personal representative;

25         repealing s. 733.507, F.S., relating to

26         administration following resignation or

27         removal; amending s. 733.508, F.S.; providing

28         for accounting and discharge upon removal;

29         amending s. 733.509, F.S.; revising provisions

30         with respect to surrender of assets upon

31         removal; amending s. 733.601, F.S.; revising

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         provisions with respect to time of accrual of

  2         duties and powers; amending s. 733.602, F.S.,

  3         relating to the general duties of a personal

  4         representative; amending s. 733.603, F.S.,

  5         relating to when a personal representative may

  6         proceed without court order; amending s.

  7         733.604, F.S.; revising provisions with respect

  8         to inventory; repealing s. 733.605, F.S.,

  9         relating to appraisers; creating s. 733.6065,

10         F.S.; providing for the opening of a

11         safe-deposit box; amending s. 733.607, F.S.;

12         revising provisions with respect to the

13         possession of the estate; amending s. 733.608,

14         F.S.; revising provisions with respect to the

15         general power of the personal representative;

16         amending s. 733.609, F.S.; revising provisions

17         with respect to improper exercise of power and

18         the breech of fiduciary duty; amending s.

19         733.610, F.S., relating to the sale,

20         encumbrance, or transaction involving a

21         conflict of interest; amending s. 733.611,

22         F.S.; revising provisions with respect to

23         persons dealing with the personal

24         representative; amending s. 733.612, F.S.;

25         revising provisions with respect to

26         transactions authorized for the personal

27         representatives and exceptions thereto;

28         amending s. 733.6121, F.S., relating to powers

29         of the personal representative with respect to

30         environmental or human health laws affecting

31         property subject to administration; amending s.

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         733.613, F.S.; revising provisions with respect

  2         to the personal representative's right to sell

  3         real property; amending s. 733.614, F.S.,

  4         relating to the powers and duties of a

  5         successor personal representative; amending s.

  6         733.615, F.S.; revising provisions with respect

  7         to joint personal representatives; amending s.

  8         733.616, F.S.; revising provisions with respect

  9         to the powers of the surviving personal

10         representatives; amending s. 733.617, F.S.;

11         revising provisions with respect to

12         compensation of the personal representative;

13         amending s. 733.6171, F.S.; revising provisions

14         with respect to compensation of the attorney

15         for the personal representative; amending s.

16         733.6175, F.S.; revising provisions with

17         respect to proceedings for review of employment

18         of agents and compensation of personal

19         representatives and employees of the estate;

20         amending s. 733.619, F.S., relating to the

21         individual liability of the personal

22         representative; amending s. 733.701, F.S.;

23         revising provisions with respect to notifying

24         creditors; conforming cross-references;

25         amending s. 733.702, F.S.; revising provisions

26         with respect to limitations on presentation of

27         claims; amending s. 733.703, F.S.; revising

28         provisions with respect to the form and manner

29         of presenting a claim; amending s. 733.704,

30         F.S., relating to amendment of claims; amending

31         s. 733.705, F.S.; revising provisions with

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         respect to payment of and objection to claims;

  2         amending s. 733.707, F.S.; revising provisions

  3         with respect to the order of payment of

  4         expenses and obligations; amending s. 733.708,

  5         F.S.; revising provisions with respect to

  6         compromise; amending s. 733.710, F.S., relating

  7         to claims against estates; amending s. 733.801,

  8         F.S.; providing that the personal

  9         representative shall pay as an expense of

10         administration certain costs; amending s.

11         733.802, F.S.; revising provisions with respect

12         to proceedings for compulsory payment of

13         devises or distributive interest; amending s.

14         733.803, F.S., relating to encumbered property;

15         amending s. 733.805, F.S.; revising provisions

16         with respect to the order in which assets are

17         appropriated; amending s. 733.806, F.S.,

18         relating to advancement; amending s. 733.808,

19         F.S.; revising provisions with respect to death

20         benefits and disposition of proceeds; amending

21         s. 733.809, F.S., relating to right of

22         retainer; amending s. 733.810, F.S.; revising

23         provisions with respect to distribution in kind

24         and valuation; amending s. 733.811, F.S.;

25         revising provisions with respect to the right

26         or title of distributee; amending s. 733.812,

27         F.S.; providing for improper distribution or

28         payment and liability of distributee; amending

29         s. 733.813, F.S., relating to protection of the

30         purchaser from the distributee; amending s.

31         733.814, F.S.; revising provisions with respect

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         to partition for the purpose of distribution;

  2         amending s. 733.815, F.S.; providing for

  3         private contracts among certain interested

  4         persons; amending s. 733.816, F.S., relating to

  5         the distribution of unclaimed property held by

  6         the personal representative; amending s.

  7         733.817, F.S.; revising provisions with respect

  8         to apportionment of estate taxes; amending s.

  9         733.901, F.S.; providing requirements with

10         respect to final discharge; amending s.

11         733.903, F.S.; revising provisions with respect

12         to subsequent administration; amending s.

13         734.101, F.S., relating to the foreign personal

14         representative; amending s. 734.102, F.S.;

15         revising provisions with respect to ancillary

16         administration; amending s. 734.1025, F.S.;

17         revising provisions with respect to the

18         nonresident decedent's testate estate with

19         property not exceeding a certain value in this

20         state; providing for the determination of

21         claims; amending s. 734.104, F.S., relating to

22         foreign wills; amending s. 734.201, F.S.,

23         relating to jurisdiction by act of a foreign

24         personal representative; amending s. 734.202,

25         F.S., relating to jurisdiction by act of

26         decedent; repealing s. 735.101, F.S., relating

27         to family administration and the nature of the

28         proceedings; repealing s. 735.103, F.S.,

29         relating to petition for family administration;

30         repealing s. 735.107, F.S., relating to family

31         administration distribution; amending s.

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         735.201, F.S.; increasing a monetary amount

  2         with respect to summary administration;

  3         amending s. 735.203, F.S.; revising provisions

  4         with respect to the petition for summary

  5         administration; amending s. 735.206, F.S.;

  6         revising provisions with respect to summary

  7         administration distribution; amending s.

  8         735.2063, F.S.; revising provisions with

  9         respect to notice to creditors; repealing s.

10         735.209, F.S., relating to joinder of heirs,

11         devisees, or surviving spouse in summary

12         administration; amending s. 735.301, F.S.,

13         relating to disposition without administration;

14         amending s. 735.302, F.S.; revising provisions

15         with respect to income tax refunds in certain

16         circumstances; amending s. 737.3054, F.S.;

17         revising provisions with respect to trustee's

18         duty to pay expenses and obligations of

19         grantor's estate; amending s. 737.306, F.S.;

20         revising provisions with respect to personal

21         liability of trustee; creating s. 737.3061,

22         F.S.; providing for limitation on actions

23         against certain trusts; amending s. 737.308,

24         F.S.; revising provisions with respect to

25         notice of trust; amending ss. 215.965, 660.46,

26         and 737.111, F.S.; conforming cross-references;

27         directing the Division of Statutory Revision

28         and Indexing to change the title of certain

29         parts of the Probate Code; providing an

30         effective date.

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




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

  2

  3         Section 1.  Paragraphs (b) and (c) of subsection (1) of

  4  section 63.172, Florida Statutes, are amended to read:

  5         63.172  Effect of judgment of adoption.--

  6         (1)  A judgment of adoption, whether entered by a court

  7  of this state, another state, or of any other place, has the

  8  following effect:

  9         (b)  It terminates all legal relationships between the

10  adopted person and the adopted person's relatives, including

11  the birth parents, except a birth parent who is a petitioner

12  or who is married to a petitioner, so that the adopted person

13  thereafter is a stranger to his or her former relatives for

14  all purposes, including inheritance and the interpretation or

15  construction of documents, statutes, and instruments, whether

16  executed before or after entry of the adoption judgment, that

17  do not expressly include the adopted person by name or by some

18  designation not based on a parent and child or blood

19  relationship, except that rights of inheritance shall be as

20  provided in the Florida Probate Code.

21         (c)  Except for rights of inheritance, it creates the

22  relationship between the adopted person and the petitioner and

23  all relatives of the petitioner that would have existed if the

24  adopted person were a blood descendant of the petitioner born

25  within wedlock. This relationship shall be created for all

26  purposes, including inheritance and applicability of statutes,

27  documents, and instruments, whether executed before or after

28  entry of the adoption judgment, that do not expressly exclude

29  an adopted person from their operation or effect.

30         Section 2.  Section 409.9101, Florida Statutes, is

31  amended to read:

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         409.9101  Recovery for payments made on behalf of

  2  Medicaid-eligible persons.--

  3         (1)  This section may be cited as the "Medicaid Estate

  4  Recovery Act."

  5         (2)  It is the intent of the Legislature by this

  6  section to supplement Medicaid funds that are used to provide

  7  medical services to eligible persons. Medicaid estate recovery

  8  shall generally be accomplished by the agency through the

  9  filing a statement of claim claims against the estate of a

10  estates of deceased Medicaid recipient recipients as provided

11  in part VII of chapter 733. Recovery The recoveries shall be

12  made pursuant to federal authority in s. 13612 of the Omnibus

13  Budget Reconciliation Act of 1993, which amends s. 1917(b)(1)

14  of the Social Security Act, 42 U.S.C. s. 1396p(b)(1).

15         (3)  Pursuant to s. 733.212(4)(a), the personal

16  representative of the estate of the decedent shall serve the

17  agency with a copy of the notice of administration of the

18  estate within 3 months after the first publication of the

19  notice, unless the agency has already filed a claim pursuant

20  to this section.

21         (3)(4)  The acceptance of public medical assistance, as

22  defined by Title XIX (Medicaid) of the Social Security Act,

23  including mandatory and optional supplemental payments under

24  the Social Security Act, shall create a debt to claim, as

25  defined in s. 731.201, in favor of the agency in as an

26  interested person as defined in s. 731.201. The claim amount

27  is calculated as the total amount paid to or for the benefit

28  of the recipient for medical assistance on behalf of the

29  recipient after the recipient he or she reached 55 years of

30  age. Payment of benefits to a person under the age of 55 years

31  does not create a debt. Upon filing of a statement of claim in

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  the probate proceeding, the agency shall be an interested

  2  person as defined in s. 731.201 to the same extent as other

  3  estate claimants There is no claim under this section against

  4  estates of recipients who had not yet reached 55 years of age.

  5         (4)(5)  At the time of filing the claim, The agency may

  6  reserve the right to amend the claim as a matter of right up

  7  to 6 months after the service of a notice to creditors on the

  8  agency amounts based on medical claims submitted by providers

  9  subsequent to the agency's initial claim calculation.

10         (5)(6)  The claim of the agency shall be the current

11  total allowable amount of Medicaid payments as denoted in the

12  agency's provider payment processing system at the time the

13  agency's claim or amendment is filed. The agency's provider

14  processing system reports shall be admissible as prima facie

15  evidence in substantiating the agency's claim.

16         (7)  The claim of the agency under this section shall

17  constitute a Class 3 claim under s. 733.707(1)(c), as provided

18  in s. 414.28(1).

19         (6)(8)  The debt claim created under this section shall

20  not be enforced if the recipient is survived by:

21         (a)  A spouse;

22         (b)  A child or children under 21 years of age; or

23         (c)  A child or children who are blind or permanently

24  and totally disabled pursuant to the eligibility requirements

25  of Title XIX of the Social Security Act.

26         (7)(9)  In accordance with s. 4, Art. X of the State

27  Constitution, No debt claim under this section shall be

28  enforced against any property that is determined to be exempt

29  from the claims of creditors under the constitution or laws of

30  this state the homestead of the deceased Medicaid recipient

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  and is determined to be exempt from the claims of creditors of

  2  the deceased Medicaid recipient.

  3         (8)(10)  The agency shall not recover from an estate if

  4  doing so would cause undue hardship for a beneficiary the

  5  qualified heirs, as defined in s. 731.201. The personal

  6  representative of an estate and any beneficiary heir may

  7  request that the agency waive recovery of any or all of the

  8  debt when recovery would create a hardship. A hardship does

  9  not exist solely because recovery will prevent any

10  beneficiaries heirs from receiving an anticipated inheritance.

11  The following criteria shall be considered by the agency in

12  reviewing a hardship request:

13         (a)  The beneficiary heir:

14         1.  Currently resides in the residence of the

15  decedent,;

16         2.  Resided there at the time of the death of the

17  decedent,;

18         3.  Has made the residence his or her primary residence

19  for the 12 months immediately preceding the death of the

20  decedent,; and

21         4.  Owns no other residence;

22         (b)  The beneficiary heir would be deprived of food,

23  clothing, shelter, or medical care necessary for the

24  maintenance of life or health;

25         (c)  The beneficiary heir can document that he or she

26  provided full-time care to the recipient which delayed the

27  recipient's entry into a nursing home. The beneficiary heir

28  must be either the decedent's sibling or the son or daughter

29  of the decedent and must have resided with the recipient for

30  at least 1 year prior to the recipient's death; or

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (d)  The cost involved in the sale of the property

  2  would be equal to or greater than the value of the property.

  3         (9)(11)  Instances arise in Medicaid estate-recovery

  4  cases where the assets include a settlement of a claim against

  5  a liable third party. The agency's claim under s. 409.910 must

  6  be satisfied prior to including the settlement proceeds as

  7  estate assets. The remaining settlement proceeds shall be

  8  included in the estate and be available to satisfy the

  9  Medicaid estate-recovery claim. The Medicaid estate-recovery

10  share shall be one-half of the settlement proceeds included in

11  the estate. Nothing in this subsection is intended to limit

12  the agency's rights against other assets in the estate not

13  related to the settlement. However, in no circumstances shall

14  the agency's recovery exceed the total amount of Medicaid

15  medical assistance provided to the recipient.

16         (10)(12)  In instances where there are no liquid assets

17  to satisfy the Medicaid estate-recovery claim, if there is

18  nonexempt personal property or nonhomestead real property

19  which is not protected homestead and the costs of sale will

20  not exceed the proceeds, the property shall be sold to satisfy

21  the Medicaid estate-recovery claim. Real property shall not be

22  transferred to the agency in any instance.

23         (11)(13)  The agency is authorized to adopt rules to

24  implement the provisions of this section.

25         Section 3.  Subsection (4) of section 655.936, Florida

26  Statutes, is amended to read:

27         655.936  Delivery of safe-deposit box contents or

28  property held in safekeeping to personal representative.--

29         (4)  The initial opening of the decedent's safe-deposit

30  box shall be conducted in the presence of any two of the

31  following persons:  an employee of the institution where the

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  box is located, the personal representative, or the personal

  2  representative's attorney of record.  Each person who is

  3  present must verify the contents of the box by signing a copy

  4  of the inventory under penalties of perjury.  The personal

  5  representative shall file the safe-deposit box inventory,

  6  together with a copy of the box entry record from a date which

  7  is 6 months prior to the date of death to the date of

  8  inventory, with the court within 10 days after the box is

  9  opened.  Unless otherwise ordered by the court, this inventory

10  and the attached box entry record is subject to inspection

11  only by persons entitled to inspect an inventory under s.

12  733.604(1).  The personal representative may remove the

13  contents of the box. Notwithstanding other provisions of this

14  section, the initial opening of any safe-deposit box of the

15  decedent must be conducted in the presence of an employee of

16  the institution where the box is located and the personal

17  representative.  The inventory of the contents of the box also

18  must be conducted in the presence of the employee and the

19  personal representative, each of whom must verify the contents

20  of the box by signing a copy of the inventory.  The personal

21  representative shall file the safe-deposit box inventory with

22  the court within 10 days after the box is opened.

23         Section 4.  Section 731.005, Florida Statutes, is

24  amended to read:

25         731.005  Short title.--Chapters 731-735 shall be known

26  and may be cited as the Florida Probate Code and herein

27  referred to as "the "code" in this act.

28         Section 5.  Section 731.011, Florida Statutes, is

29  amended to read:

30         731.011  Determination of substantive rights;

31  procedures.--The code became Florida Probate Code shall become

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  effective on January 1, 1976.  The substantive rights of all

  2  persons that have vested prior to January 1, 1976, shall be

  3  determined as provided in former chapters 731-737 and 744-746

  4  as they existed prior to January 1, 1976.  The procedures for

  5  the enforcement of vested substantive rights that have vested

  6  before January 1, 1976, shall be as provided in the Florida

  7  Probate Rules this code.

  8         Section 6.  Section 731.104, Florida Statutes, is

  9  amended to read:

10         731.104  Verification of documents.--When verification

11  of a document is required in this code or by rule, the

12  document filed shall include an oath or affirmation as

13  provided in the Florida Probate Rules or the following

14  statement:  "Under penalties of perjury, I declare that I have

15  read the foregoing, and the facts alleged are true, to the

16  best of my knowledge and belief."  Any person who shall

17  willfully includes include a false statement in the document

18  shall be guilty of perjury and upon conviction shall be

19  punished accordingly.

20         Section 7.  Section 731.106, Florida Statutes, is

21  amended to read:

22         731.106  Assets of nondomiciliaries.--

23         (1)  For purposes of aiding the determination

24  concerning location of assets that may be relevant in cases

25  involving nondomiciliaries, A debt in favor of a

26  nondomiciliary, other than one evidenced by investment or

27  commercial paper or other instrument, is located in the county

28  where the debtor resides or, if the debtor is not a person

29  other than an individual, at the place where the debtor has

30  its principal office.  Commercial paper, investment paper, and

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  other instruments are located where the instrument is at the

  2  time of death.

  3         (2)  When a nonresident decedent, whether or not who is

  4  a citizen of the United States, or a citizen or subject of a

  5  foreign country provides by in her or his will that the

  6  testamentary disposition of her or his tangible or intangible

  7  personal property having a situs within this state, or of her

  8  or his real property in this state, shall be construed and

  9  regulated by the laws of this state, the validity and effect

10  of the dispositions shall be determined by Florida law. The

11  court may, and in the case of a decedent who was at the time

12  of death a resident of a foreign country the court shall,

13  direct the personal representative appointed in this state to

14  make distribution directly to those designated by the

15  decedent's will as beneficiaries of the tangible or intangible

16  property or to the persons entitled to receive the decedent's

17  personal estate under the laws of the decedent's domicile, as

18  the case may be.

19         Section 8.  Section 731.107, Florida Statutes, is

20  repealed.

21         Section 9.  Section 731.110, Florida Statutes, is

22  amended to read:

23         731.110  Caveat; proceedings.--

24         (1)  Any person, including a creditor, who If any

25  creditor of the estate of a decedent is apprehensive that an

26  estate, either testate or intestate, will be administered

27  without the creditor's knowledge, or if any person other than

28  a creditor is apprehensive that an estate may be administered,

29  or that a will may be admitted to probate, without the

30  person's knowledge, he or she may file a caveat with the

31  court.

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    16-476-01                                           See HB 137




  1         (2)  A No caveat shall contain be effective unless it

  2  contains the decedent's social security number, last known

  3  residence address, and or date of birth, if they are known, as

  4  an identification number, a statement of the interest of the

  5  caveator in the estate, the name and specific residence

  6  address of the caveator, and, if the caveator, other than a

  7  state agency, is a nonresident of the county, the additional

  8  name and specific residence address of some person residing in

  9  the county, or office address of a member of The Florida Bar

10  residing in Florida, designated as the agent of the caveator,

11  upon whom service may be made.

12         Section 10.  Section 731.111, Florida Statutes, is

13  repealed.

14         Section 11.  Section 731.201, Florida Statutes, is

15  amended to read:

16         731.201  General definitions.--Subject to additional

17  definitions in subsequent chapters that are applicable to

18  specific chapters or parts, and unless the context otherwise

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

20  738, and 744:

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

22  documents or judicial proceedings required to be filed with

23  the court under this code, shall mean a certified copy or a

24  copy authenticated according to the Federal Rules of Civil

25  Procedure 28 U.S.C. s. 1733 or s. 1741.

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

27  estate, and devisee, in a testate estate.  The term

28  "beneficiary" does not apply to an heir at law or a devisee

29  after that person's his or her interest in the estate has been

30  satisfied.  In the case of a devise to an existing trust or

31  trustee, or to a trust or trustee described by will, in the

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  absence of a conflict of interest of the trust, the trustee is

  2  a beneficiary of the estate. An owner of a beneficial interest

  3  in the trust is a beneficiary of the trust and is, in the

  4  absence of a conflict of interest of the trust, not a

  5  beneficiary of the estate.

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

  7  child under this code by intestate succession from the parent

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

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

10  remote descendant.

11         (4)  "Claim Claims" means a liability liabilities of

12  the decedent, whether arising in contract, tort, or otherwise,

13  and funeral expense expenses.  The term does not include an

14  expense expenses of administration or estate, inheritance,

15  succession, or other death taxes.

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

17  court.

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

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

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

21  issued.

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

23  testamentary disposition of real or personal property and,

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

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

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

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

28  code, or in the will, or the trust.

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

30  trust to receive a devise.  In the case of a devise to an

31  existing trust or trustee, or to a trustee of a trust

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  described by will, the trust or trustee is the devisee. The

  2  beneficiaries of the trust are not devisees.

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

  4  estate property from a personal representative or other

  5  fiduciary other than as a creditor or purchaser. A

  6  testamentary trustee is a distributee only to the extent of

  7  distributed assets or increments to them remaining in the

  8  trustee's his or her hands.  A beneficiary of a testamentary

  9  trust to whom the trustee has distributed property received

10  from a personal representative is a distributee.  For purposes

11  of this provision, "testamentary trustee" includes a trustee

12  to whom assets are transferred by will, to the extent of the

13  devised assets.

14         (11)  "Domicile" means shall be a person's usual place

15  of dwelling and shall be synonymous with "residence."

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

17  the subject of administration.

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

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

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

21         (15)  "Foreign personal representative" means a

22  personal representative of another state or a foreign country.

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

24  Florida Probate Rules s. 731.301(1).

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

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

27  creates or adds to a trust.

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

29  including the surviving spouse, who are entitled under the

30  statutes of intestate succession to the property of a

31  decedent.

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




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

  2  adjudicated incompetent.

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

  4  notice under the Florida Probate Rules s. 731.301(2).

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

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

  7  particular proceeding involved.  In any proceeding affecting

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

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

10  interested person.  In any proceeding affecting the expenses

11  of the administration and obligations of a decedent's estate

12  of the estate, or any claims described in s. 733.702(1), the

13  trustee of a trust described in s. 733.707(3) is an interested

14  person in the administration of the grantor's estate.  The

15  term does not include a beneficiary an heir at law or a

16  devisee who has received complete his or her distribution.

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

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

19  particular purpose of, and matter involved in, any

20  proceedings.

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

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

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

24  testamentary and letters of administration. All letters shall

25  be designated "letters of administration."

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

27  States other than Florida and includes the District of

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

29  or possession subject to the legislative authority of the

30  United States.

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




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

  2  stepparent, foster parent, or grandparent.

  3         (25)  "Personal representative" means the fiduciary

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

  5  what has been known as an administrator, administrator cum

  6  testamento annexo, administrator de bonis non, ancillary

  7  administrator, ancillary executor, or executor.

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

  9  for an order.

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

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

12  probate.

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

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

15  ownership.

16         (29)  "Protected homestead" means the property

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

18  exemption for which inures at the death of the owner to the

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

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

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

22         (30)(29)  "Residence" means a person's usual place of

23  dwelling. and is synonymous with "domicile."

24         (31)(30)  "Residuary devise" means a devise of the

25  assets of the estate which remain after the provision for any

26  devise which is to be satisfied by reference to a specific

27  property or type of property, fund, sum, or statutory amount.

28  If the will contains no devise which is to be satisfied by

29  reference to a specific property or type of property, fund,

30  sum, or statutory amount, "residuary devise" or "residue"

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  means a devise of all assets remaining after satisfying the

  2  obligations of the estate.

  3         (32)(31)  "Security" means a security as defined in s.

  4  517.021.

  5         (33)(32)  "Security interest" means a security interest

  6  as defined in s. 671.201.

  7         (34)(33)  "Trust" means an express trust, private or

  8  charitable, with additions to it, wherever and however

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

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

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

12  constructive trusts, and it excludes resulting trusts;

13  conservatorships; personal representatives; custodial

14  arrangements pursuant to the Florida Uniform Transfers Gifts

15  to Minors Act; business trusts providing for certificates to

16  be issued to beneficiaries; common trust funds; land trusts

17  under s. 689.05; trusts created by the form of the account or

18  by the deposit agreement at a financial institution; voting

19  trusts; security arrangements; liquidation trusts; trusts for

20  the primary purpose of paying debts, dividends, interest,

21  salaries, wages, profits, pensions, or employee benefits of

22  any kind; and any arrangement under which a person is nominee

23  or escrowee for another.

24         (35)(34)  "Trustee" includes an original, additional,

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

26  confirmed by court.

27         (36)(35)  "Will" means an instrument, including a

28  codicil, executed by a person in the manner prescribed by this

29  code, which disposes of the person's property on or after his

30  or her death and includes an instrument which merely appoints

31  a personal representative or revokes or revises another will.

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         Section 12.  Section 731.301, Florida Statutes, is

  2  amended to read:

  3         731.301  Notice; method and time; proof.--

  4         (1)  FORMAL NOTICE.--

  5         (a)  When formal notice to an interested person of a

  6  petition or other proceeding is required, the notice shall be

  7  given to the petitioner shall serve a copy of the petition to

  8  any interested person or that person's her or his attorney as

  9  provided in the Florida Probate Rules, if the interested

10  person has appeared by attorney or requested that notice be

11  sent to her or his attorney.  The petition shall be served:

12         1.  By any form of mail or by any commercial delivery

13  service approved by the chief judge of each judicial circuit,

14  requiring a signed receipt, as follows:

15         a.  On the interested person's attorney of record, if

16  any, or to the post-office address given in her or his demand

17  for notice, if any;

18         b.  On an individual, other than an incompetent, by

19  mailing a copy to the individual's dwelling house or usual

20  place of abode or to the place where she or he regularly

21  conducts her or his business or profession;

22         c.  On an incompetent person, by mailing a copy to the

23  incompetent, to the person having custody of the incompetent,

24  and to any legal guardian of the incompetent, at their

25  respective dwelling houses, usual places of abode, or regular

26  places of business or profession;

27         d.  On a corporation, by mailing a copy to the

28  corporation at its last known address; or

29         2.  As provided in chapter 48; or

30         3.  In the circumstances provided in chapter 49, in the

31  manner provided therein.

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (b)  If there is no answer served on the petitioner

  2  within 20 days from the service of the petition, the petition

  3  shall be considered ex parte. If an answer is served, a

  4  hearing shall be set and reasonable notice given.

  5         (c)  If service is made under subparagraph (a)2. or

  6  subparagraph (a)3., proof shall be made as provided in chapter

  7  48 or chapter 49.  If service is made by mail under

  8  subparagraph (a)1., proof shall be by a verified statement of

  9  the person mailing service who shall attach the signed receipt

10  or other evidence satisfactory to the court that delivery was

11  made to, or refused by, the addressee or the addressee's

12  agent.

13         (2)(d)  Formal notice shall be sufficient to acquire

14  jurisdiction over the person receiving formal notice to the

15  extent of the person's interest in the estate.

16         (2)  INFORMAL NOTICE.--

17         (a)  When informal notice of a petition or other

18  proceeding is required or permitted, it shall be served on the

19  person or the person's attorney as provided in the Florida

20  Rules of Civil Procedure relating to service of pleadings.

21         (b)  Proof of service shall be made by filing an

22  attorney's certificate of service or, if filed by a person who

23  is not a member of The Florida Bar, by a verified statement.

24         (3)  EFFECT OF NOTICE.--Persons given notice of any

25  proceeding petition shall be bound by all orders entered in

26  that proceeding on the petition.

27         (4)  INFORMAL NOTICE REQUIRED.--Unless otherwise

28  specifically provided, informal notice of every petition

29  affecting property rights or interests must be given to

30  interested persons.

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         Section 13.  Section 731.303, Florida Statutes, is

  2  amended to read:

  3         731.303  Representation.--In proceedings involving

  4  estates of decedents or trusts, the following apply:

  5         (1)  Interests to be affected shall be described in

  6  pleadings that give information by name or class, by reference

  7  to the instrument creating the interests, or in another

  8  appropriate manner.

  9         (1)(2)  Persons are bound by orders binding others in

10  the following cases:

11         (a)  Orders binding the sole holder or all coholders of

12  a power of revocation or a general, special, or limited power

13  of appointment, including one in the form of a power of

14  amendment or revocation to the extent that the power has not

15  become unexercisable in fact, bind all persons to the extent

16  that their interests, as persons who may take by virtue of the

17  exercise or nonexercise of the power, are subject to the

18  power.

19         (b)  To the extent there is no conflict of interest

20  between them or among the persons represented:

21         1.  Orders binding a guardian of the property bind the

22  ward whose estate he or she controls.

23         2.  Orders binding a trustee bind beneficiaries of the

24  trust in proceedings to probate a will, in establishing or

25  adding to a trust, in reviewing the acts or accounts of a

26  prior fiduciary, and in proceedings involving creditors or

27  other third parties.

28         3.  Orders binding a personal representative bind

29  persons interested in the undistributed assets of a decedent's

30  estate, in actions or proceedings by or against the estate.

31

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    Florida Senate - 2001                                   SB 402
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  1         (c)  An unborn or unascertained person, or a minor or

  2  any other person under a legal disability, who is not

  3  otherwise represented is bound by an order to the extent that

  4  person's his or her interest is represented by another party

  5  having the same or greater quality of interest in the

  6  proceeding.

  7         (2)(3)  Orders binding a guardian of the person shall

  8  not bind the ward.

  9         (3)(4)  Notice is required as follows:

10         (a)  Notice as prescribed by the Florida Probate Rules

11  s. 731.301 shall be given to every interested person, or to

12  one who can bind the interested person as described in

13  paragraph (1)(2)(a) or paragraph (1)(2)(b). Notice may be

14  given both to the interested person and to another who can

15  bind him or her.

16         (b)  Notice is given to unborn or unascertained persons

17  who are not represented pursuant to paragraph (1)(2)(a) or

18  paragraph (1)(2)(b) by giving notice to all known persons

19  whose interests in the proceedings are the same as, or of a

20  greater quality than, those of the unborn or unascertained

21  persons.

22         (4)(5)  If the court determines that representation of

23  the interest would otherwise be inadequate, the court may, at

24  any time, appoint a guardian ad litem to represent the

25  interests of an incapacitated incompetent person, an unborn or

26  unascertained person, a minor or any other person otherwise

27  under a legal disability, or a person whose identity or

28  address is unknown.  If not precluded by conflict of interest,

29  a guardian ad litem may be appointed to represent several

30  persons or interests.

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (5)(6)  Agreements, waivers, consents, approvals,

  2  accounts, or other statements that fully disclose the matters

  3  that which are the subject of the such accounts or statements

  4  and that bind the sole holder or all coholders of a general,

  5  special, or limited power of appointment, including a power of

  6  amendment or revocation to the extent that the power has not

  7  become unexercisable in fact, bind all persons to the extent

  8  that their interests, as persons who may take by virtue of the

  9  exercise or nonexercise of the power, are subject to the

10  power.

11         Section 14.  Subsection (2) of section 732.101, Florida

12  Statutes, is amended to read:

13         732.101  Intestate estate.--

14         (2)  The decedent's death is the event that vests the

15  heirs' right to the decedent's intestate property.

16         Section 15.  Section 732.102, Florida Statutes, is

17  amended to read:

18         732.102  Spouse's share of intestate estate Share of

19  spouse.--

20         (1)  The intestate share of the surviving spouse is:

21         (1)(a)  If there is no surviving lineal descendant of

22  the decedent, the entire intestate estate.

23         (2)(b)  If there are surviving lineal descendants of

24  the decedent, all of whom are also lineal descendants of the

25  surviving spouse also, the first $60,000 $20,000 of the

26  intestate estate, plus one-half of the balance of the

27  intestate estate. Property allocated hereunder to the

28  surviving spouse to satisfy the $60,000 $20,000 shall be

29  valued at the fair market value on the date of distribution

30  the decedent's death.

31

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    16-476-01                                           See HB 137




  1         (3)(c)  If there are surviving lineal descendants, one

  2  or more of whom are not lineal descendants of the surviving

  3  spouse, one-half of the intestate estate.

  4         (2)  The court shall allot the property to which the

  5  spouse is entitled, treating all beneficiaries equitably.

  6         Section 16.  Paragraph (c) of subsection (4) and

  7  subsection (5) of section 732.103, Florida Statutes, are

  8  amended to read:

  9         732.103  Share of other heirs.--The part of the

10  intestate estate not passing to the surviving spouse under s.

11  732.102, or the entire intestate estate if there is no

12  surviving spouse, descends as follows:

13         (4)  If there is none of the foregoing, the estate

14  shall be divided, one-half of which shall go to the decedent's

15  paternal, and the other half to the decedent's maternal,

16  kindred in the following order:

17         (c)  If there is either no paternal kindred or if there

18  is no maternal kindred, the estate shall go to such of the

19  other kindred who as shall survive, in the order stated above

20  aforesaid.

21         (5)  If there is no kindred of either part, the whole

22  of the such property shall go to the kindred of the last

23  deceased spouse of the decedent as if the deceased spouse had

24  survived the decedent and then died intestate entitled to the

25  estate.

26         Section 17.  Section 732.107, Florida Statutes, is

27  amended to read:

28         732.107  Escheat.--

29         (1)  When a person dies leaving an estate dies without

30  being survived by any person entitled to a part of it, that

31  part the property shall escheat to the state.

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    16-476-01                                           See HB 137




  1         (2)(a)  In this event, or when doubt exists about the

  2  existence of any person entitled to the estate, the personal

  3  representative shall institute a proceeding for the

  4  determination of beneficiaries, as provided in this code,

  5  within 1 year after letters have been issued to him or her,

  6  and notice shall be served on the Department of Legal Affairs.

  7  If the personal representative fails to institute the

  8  proceeding within the time fixed, it may be instituted by the

  9  Department of Legal Affairs.

10         (b)  On or before January 15 of each year, each court

11  shall furnish to the department a list of all estates being

12  administered in which no person appears to be entitled to the

13  property and the personal representative has not instituted a

14  proceeding for the determination of beneficiaries.

15         (3)  If the court determines that there is no person

16  entitled to the estate and that the estate escheats, the

17  property Property that escheats shall be sold as provided in

18  the Florida Probate Rules and the proceeds paid to the

19  Treasurer of the state and deposited by him or her in the

20  State School Fund within a reasonable time to be fixed by the

21  court.

22         (3)(4)  At any time within 10 years after the payment

23  to the Treasurer granting of letters, a person claiming to be

24  entitled to the proceeds estate of the decedent may petition

25  to reopen the administration to and assert entitlement his or

26  her rights to the proceeds escheated property. If the claimant

27  is entitled to any of the estate of the decedent, the court

28  shall fix the amount to which he or she is entitled, and it

29  shall be repaid to him or her with interest at the legal rate

30  by the officials charged with the disbursement of state school

31  funds. Any entitlement shall include interest at the legal

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  1  rate. If no claim is timely asserted within the time fixed,

  2  the title of the state's rights to state to the property and

  3  the proceeds shall become absolute.

  4         (4)(5)  The Department of Legal Affairs shall represent

  5  the state in all proceedings concerning escheated estates.

  6         (5)(6)(a)  If a person entitled to the proceeds funds

  7  assigns the his or her rights to receive payment to an

  8  attorney or private investigative agency which is duly

  9  licensed to do business in this state pursuant to a written

10  agreement with that such person, the Department of Banking and

11  Finance is authorized to make distribution in accordance with

12  the such assignment.

13         (b)  Payments made to an attorney or private

14  investigative agency shall be promptly deposited into a trust

15  or escrow account which is regularly maintained by the

16  attorney or private investigative agency in a financial

17  institution authorized to accept such deposits and located in

18  this state.

19         (c)  Distribution by the attorney or private

20  investigative agency to the person entitled to the proceeds

21  funds shall be made within 10 days following final credit of

22  the deposit into the trust or escrow account at the financial

23  institution, unless a party to the agreement protests the in

24  writing such distribution in writing before it is made.

25         (d)  The department shall not be civilly or criminally

26  liable for any proceeds funds distributed pursuant to this

27  subsection, provided such distribution is made in good faith.

28         (7)  Except as herein provided, escheated estates shall

29  be administered as other estates.

30         Section 18.  Section 732.1101, Florida Statutes, is

31  amended to read:

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  1         732.1101  Aliens.--Aliens shall have the same rights of

  2  inheritance as citizens No person is disqualified to take as

  3  an heir because he or she, or a person through whom he or she

  4  claims, is, or has been, an alien.

  5         Section 19.  Subsection (8) of section 732.2025,

  6  Florida Statutes, is amended to read:

  7         732.2025  Definitions.--As used in ss.

  8  732.2025-732.2155, the term:

  9         (8)  "Qualifying special needs trust" or "supplemental

10  needs trust" means a trust established for an ill or disabled

11  surviving spouse with court approval before or after a

12  decedent's death for such incapacitated surviving spouse, if,

13  commencing on the decedent's death:

14         (a)  The income and principal are distributable to or

15  for the benefit of the spouse for life in the discretion of

16  one or more trustees less than half of whom are ineligible

17  family trustees.  For purposes of this paragraph, ineligible

18  family trustees include the decedent's grandparents and any

19  descendants of the decedent's grandparents who are not also

20  descendants of the surviving spouse; and

21         (b)  During the spouse's life, no person other than the

22  spouse has the power to distribute income or principal to

23  anyone other than the spouse.

24         (c)  The requirement for court approval and the

25  limitation on ineligible family trustees shall not apply if

26  the aggregate of the trust property as of the applicable

27  valuation date in a qualifying special needs trust is less

28  than $100,000.

29         Section 20.  Paragraph (a) of subsection (3) of section

30  732.2085, Florida Statutes, is amended to read:

31

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  1         732.2085  Liability of direct recipients and

  2  beneficiaries.--

  3         (3)  If a person pays the value of the property on the

  4  date of a sale or exchange or contributes all of the property

  5  received, as provided in paragraph (2)(b):

  6         (a)  No further contribution toward satisfaction of the

  7  elective share shall be required with respect to that such

  8  property.

  9         Section 21.  Subsection (2) of section 732.2125,

10  Florida Statutes, is amended to read:

11         732.2125  Right of election; by whom exercisable.--The

12  right of election may be exercised:

13         (2)  With approval of the court having jurisdiction of

14  the probate proceeding by an attorney in fact or a guardian of

15  the property of the surviving spouse, with approval of the

16  court having jurisdiction of the probate proceeding. The court

17  shall determine the election as the best interests of the

18  surviving spouse, during the spouse's probable lifetime,

19  require.

20         Section 22.  Section 732.2135, Florida Statutes, is

21  amended to read:

22         732.2135  Time of election; extensions; withdrawal.--

23         (1)  Except as provided in subsection (2), the election

24  must be filed within the earlier of 6 months of the date of

25  service of a copy of the first publication of notice of

26  administration on the surviving spouse, or an attorney in fact

27  or guardian of the property of the surviving spouse, or 2

28  years after the date of the decedent's death.

29         (2)  Within the period provided in subsection (1), the

30  surviving spouse or an attorney in fact or guardian of the

31  property of the surviving spouse may petition the court for an

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  1  extension of time for making an election. After notice and

  2  hearing, the court For good cause shown the court may extend

  3  the time for election. If the court grants the petition for an

  4  extension, the election must be filed within the time allowed

  5  by the extension.

  6         (3)  The surviving spouse or an attorney in fact,

  7  guardian of the property, or personal representative of the

  8  surviving spouse may withdraw an election at any time within 8

  9  months of the decedent's death and before the court's order of

10  contribution. If an election is withdrawn, the court may

11  assess attorney's fees and costs against the surviving spouse

12  or the surviving spouse's estate.

13         (4)  A petition for an extension of the time for making

14  the election or for approval to make the election shall toll

15  the time for making the election.

16         Section 23.  Subsections (1) and (4) of section

17  732.2145, Florida Statutes, are amended to read:

18         732.2145  Order of contribution; personal

19  representative's duty to collect contribution.--

20         (1)  The court shall determine the elective share and

21  shall order contribution. All Contributions shall are to bear

22  interest at the statutory rate provided in s. 55.03(1)

23  beginning 90 days after from the date of the order of

24  contribution. The order of contribution is prima facie correct

25  in proceedings in any court or jurisdiction.

26         (4)  Nothing in this section limits the independent

27  right of the surviving spouse to collect the elective share as

28  provided in the order of contribution, and that right is

29  hereby conferred. If the surviving spouse brings an action to

30  enforce the an order of contribution, the judgment shall

31

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  1  include the surviving spouse's costs and reasonable attorney's

  2  fees.

  3         Section 24.  Subsection (4) of section 732.2155,

  4  Florida Statutes, is amended to read:

  5         732.2155  Effective date; effect of prior waivers;

  6  transition rules.--

  7         (4)  Notwithstanding anything in s. 732.2045(1)(a) to

  8  the contrary, any trust created by the decedent before the

  9  effective date of ss. 732.201-732.2145 which this section that

10  meets the requirements of an elective share trust is treated

11  as if the decedent created the trust after the effective date

12  of these sections this subsection and in satisfaction of the

13  elective share.

14         Section 25.  Subsection (2) of section 732.218, Florida

15  Statutes, is amended to read:

16         732.218  Rebuttable presumptions.--In determining

17  whether ss. 732.216-732.228 apply to specific property, the

18  following rebuttable presumptions apply:

19         (2)  Real property located in this state, other than

20  homestead and real property held as tenants by the entirety

21  and homestead, and personal property wherever located acquired

22  by a married person while domiciled in a jurisdiction under

23  whose laws property could not then be acquired as community

24  property and title to which was taken in a form which created

25  rights of survivorship are presumed not to be property to

26  which these sections do not apply.

27         Section 26.  Section 732.219, Florida Statutes, is

28  amended to read:

29         732.219  Disposition upon death.--Upon the death of a

30  married person, one-half of the property to which ss.

31  732.216-732.228 apply is the property of the surviving spouse

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  1  and is not subject to testamentary disposition by the decedent

  2  or distribution under the laws of succession of this state.

  3  One-half of that property is the property of the decedent and

  4  is subject to testamentary disposition or distribution under

  5  the laws of succession of this state.  The decedent's one-half

  6  of that the property is not in the elected estate subject to

  7  the surviving spouse's right to elect against the will.

  8         Section 27.  Section 732.221, Florida Statutes, is

  9  amended to read:

10         732.221  Perfection of title of personal representative

11  or beneficiary, heir, or devisee.--If the title to any

12  property to which ss. 732.216-732.228 apply is held by the

13  surviving spouse at the time of the decedent's death, the

14  personal representative or a beneficiary an heir or devisee of

15  the decedent may institute an action to perfect title to the

16  property.  The personal representative has no fiduciary duty

17  to discover whether any property held by the surviving spouse

18  is property to which ss. 732.216-732.228 these sections apply,

19  unless a written demand is made by a beneficiary an heir,

20  devisee, or creditor of the decedent within 3 6 months after

21  service of a copy the first publication of the notice of

22  administration on the beneficiary or by a creditor within 3

23  months after the first publication of the notice to creditors.

24         Section 28.  Subsections (1) and (2) of section

25  732.222, Florida Statutes, are amended to read:

26         732.222  Purchaser for value or lender.--

27         (1)  If a surviving spouse has apparent title to

28  property to which ss. 732.216-732.228 apply, a purchaser for

29  value or a lender taking a security interest in the property

30  takes the his or her interest in the property free of any

31

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  1  rights of the personal representative or a beneficiary an heir

  2  or devisee of the decedent.

  3         (2)  If a personal representative or a beneficiary an

  4  heir or devisee of the decedent has apparent title to property

  5  to which ss. 732.216-732.228 apply, a purchaser for value or a

  6  lender taking a security interest in the property takes that

  7  his or her interest in the property free of any rights of the

  8  surviving spouse.

  9         Section 29.  Section 732.223, Florida Statutes, is

10  amended to read:

11         732.223  Perfection of title of surviving spouse.--If

12  the title to any property to which ss. 732.216-732.228 apply

13  was held by the decedent at the time of the decedent's his or

14  her death, title of the surviving spouse may be perfected by

15  an order of the probate court or by execution of an instrument

16  by the personal representative or the beneficiaries heirs or

17  devisees of the decedent with the approval of the probate

18  court.  The probate court in which the decedent's estate is

19  being administered has no duty to discover whether property

20  held by the decedent is property to which ss. 732.216-732.228

21  apply.  The personal representative has no duty to discover

22  whether property held by the decedent is property to which ss.

23  732.216-732.228 apply unless a written demand is made by the

24  surviving spouse or the spouse's successor in interest within

25  3 6 months after service of a copy of the first publication of

26  the notice of administration on the surviving spouse or the

27  spouse's successor in interest.

28         Section 30.  Section 732.302, Florida Statutes, is

29  amended to read:

30         732.302  Pretermitted children.--When a testator omits

31  to provide by in his or her will for any of his or her

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  1  children born or adopted after making the will and the child

  2  has not received a part of the testator's property equivalent

  3  to a child's part by way of advancement, the child shall

  4  receive a share of the estate equal in value to that which the

  5  child he or she would have received if the testator had died

  6  intestate, unless:

  7         (1)  It appears from the will that the omission was

  8  intentional; or

  9         (2)  The testator had one or more children when the

10  will was executed and devised substantially all the estate to

11  the other parent of the pretermitted child and that other

12  parent survived the testator and is entitled to take under the

13  will.

14

15  The share of the estate that is assigned to the pretermitted

16  child shall be obtained in accordance with s. 733.805.

17         Section 31.  Section 732.401, Florida Statutes, is

18  amended to read:

19         732.401  Descent of homestead.--

20         (1)  If not devised as permitted by law and the Florida

21  Constitution, the homestead shall descend in the same manner

22  as other intestate property; but if the decedent is survived

23  by a spouse and lineal descendants, the surviving spouse shall

24  take a life estate in the homestead, with a vested remainder

25  to the lineal descendants in being at the time of the

26  decedent's death per stirpes.

27         (2)  Subsection (1) shall not apply to If the decedent

28  was domiciled in Florida and resided on real property that the

29  decedent and the surviving spouse owned as tenants by the

30  entirety, the real property shall not be homestead property.

31

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  1         Section 32.  Subsection (2) of section 732.4015,

  2  Florida Statutes, is amended to read:

  3         732.4015  Devise of homestead.--

  4         (2)  For the purposes of subsection (1), the term:

  5         (a)  "Owner" includes the grantor settlor of a trust

  6  described in s. 733.707(3) that is evidenced by a written

  7  instrument that is in existence at the time of the grantor's

  8  settlor's death as if the interest held in trust were owned by

  9  the grantor pursuant to which the settlor retained the right

10  either alone or in conjunction with any other person to amend

11  or revoke the trust at any time before his or her death.

12         (b)  "Devise" includes a disposition by trust of that

13  portion of the trust estate which, if titled in the name of

14  the grantor settlor of the trust, would be the grantor's

15  settlor's homestead.

16         Section 33.  Subsections (4) and (6) of section

17  732.402, Florida Statutes, are amended, and subsection (7) is

18  added to that section to read:

19         732.402  Exempt property.--

20         (4)  Exempt property shall be in addition to protected

21  homestead, statutory entitlements, and any property passing

22  under to the surviving spouse or heirs of the decedent under

23  s. 4, Art. X of the State Constitution or the decedent's will,

24  or by intestate succession, elective share, or family

25  allowance.

26         (6)  Persons entitled to exempt property shall be

27  deemed to have waived their rights under this section unless a

28  petition for determination of exempt property is filed by or

29  on behalf of the persons entitled to the exempt property

30  within 4 months after the date of service the first

31  publication of the notice of administration or within 40 days

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  1  from the date of termination of any proceeding involving the

  2  construction, admission to probate, or validity of the will or

  3  involving any other matter affecting any part of the estate

  4  subject to this section.

  5         (7)  Property determined as exempt under this section

  6  shall be excluded from the value of the estate before

  7  residuary, intestate, or pretermitted or elective shares are

  8  determined.

  9         Section 34.  Section 732.403, Florida Statutes, is

10  amended to read:

11         732.403  Family allowance.--In addition to protected

12  homestead and statutory entitlements exempt property, if the

13  decedent was domiciled in Florida at the time of death, the

14  surviving spouse and the decedent's lineal heirs whom the

15  decedent was supporting or was obligated to support or who

16  were in fact being supported by him or her are entitled to a

17  reasonable allowance in money out of the estate for their

18  maintenance during administration.  After notice and hearing,

19  The court may order this allowance to be paid as a lump sum or

20  in periodic installments.  The allowance shall not exceed a

21  total of $18,000 $6,000.  It shall be paid to the surviving

22  spouse, if living, for the use of the spouse and dependent

23  lineal heirs.  If the surviving spouse is not living, it shall

24  be paid to the lineal heirs or to the persons having their

25  care and custody. If any lineal heir is not living with the

26  surviving spouse, the allowance may be made partly to the

27  lineal heir or his or her guardian or other person having the

28  lineal heir's care and custody and partly to the surviving

29  spouse, as the needs of the dependent lineal heir and the

30  surviving spouse appear. The family allowance shall have the

31  priority established by s. 733.707.  The family allowance is

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  1  not chargeable against any benefit or share otherwise passing

  2  to the surviving spouse or to the dependent lineal heirs by

  3  intestate succession, elective share, or the will of the

  4  decedent, unless the will otherwise provides. The death of any

  5  person entitled to a family allowance terminates the his or

  6  her right to that the part of the allowance not paid.  For

  7  purposes of this section, the term "lineal heir" or "lineal

  8  heirs" means lineal ascendants and lineal descendants of the

  9  decedent.

10         Section 35.  Section 732.501, Florida Statutes, is

11  amended to read:

12         732.501  Who may make a will.--Any person who is of

13  sound mind and who is either 18 or more years of age or an

14  emancipated minor 18 or more years of age who is of sound mind

15  may make a will.

16         Section 36.  Paragraph (a) of subsection (1) and

17  subsection (2) of section 732.502, Florida Statutes, are

18  amended to read:

19         732.502  Execution of wills.--Every will must be in

20  writing and executed as follows:

21         (1)(a)  Testator's signature.--

22         1.  The testator must sign the will at the end; or

23         2.  The testator's name must be subscribed at the end

24  of the will by some other person in the testator's presence

25  and by the testator's his or her direction.

26         (2)  Any will, other than a holographic or nuncupative

27  will, executed by a nonresident of Florida, either before or

28  after this law takes effect, is valid as a will in this state

29  if valid under the laws of the state or country where the will

30  was executed testator was at the time of execution.  A will in

31  the testator's handwriting that has been executed in

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  1  accordance with subsection (1) shall not be considered a

  2  holographic will.

  3         Section 37.  Section 732.503, Florida Statutes, is

  4  amended to read:

  5         732.503  Self-proof of will.--

  6         (1)  A will or codicil executed in conformity with s.

  7  732.502(1) and (2) may be made self-proved at the time of its

  8  execution or at any subsequent date by the acknowledgment of

  9  it by the testator and the affidavits of the witnesses, each

10  made before an officer authorized to administer oaths and

11  evidenced by the officer's certificate attached to or

12  following the will, in substantially the following form:

13

14  STATE OF FLORIDA

15  COUNTY OF ....

16         I,               , declare to the officer taking my

17  acknowledgment of this instrument, and to the subscribing

18  witnesses, that I signed this instrument as my will.

19

20

21                     ________________________

22                             Testator

23

24         We,         and         , have been sworn by the

25  officer signing below, and declare to that officer on our

26  oaths that the testator declared the instrument to be the

27  testator's will and signed it in our presence and that we each

28  signed the instrument as a witness in the presence of the

29  testator and of each other.

30

31

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  1                     ________________________

  2                             Witness

  3

  4                     ________________________

  5                             Witness

  6

  7         Acknowledged and subscribed before me by the testator,

  8  ...(type or print testator's name)..., who is personally known

  9  to me or who has produced ...(state type of identification -

10  see s. 117.05(5)(b)2.)... as identification, and sworn to and

11  subscribed before me by the witnesses, ...(type or print name

12  of first witness)... who is personally known to me or who has

13  produced ...(state type of identification - see s.

14  117.05(5)(b)2.)... as identification and ...(type or print

15  name of second witness)... who is personally known to me or

16  who has produced ...(state type of identification - see s.

17  117.05(5)(b)2.)... as identification, and subscribed by me in

18  the presence of the testator and the subscribing witnesses,

19  all on ...(date)...

20                                    ...(Signature of Officer)...

21  ...(Print, type, or stamp commissioned name and affix official

22  seal)...

23

24         (2)  A will or codicil made self-proved under former

25  law, or executed in another state and made self-proved under

26  the laws of that state, shall be considered as self-proved

27  under this section.

28

29  STATE OF ....

30  COUNTY OF ....

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         We, ...., ...., and .... the testator and the

  2  witnesses, respectively, whose names are signed to the

  3  attached or foregoing instrument, having been sworn, declared

  4  to the undersigned officer that the testator, in the presence

  5  of witnesses, signed the instrument as the testator's last

  6  will (codicil), that the testator (signed) (or directed

  7  another to sign for him or her), and that each of the

  8  witnesses, in the presence of the testator and in the presence

  9  of each other, signed the will as a witness.

10                                                ...(Testator)...

11                                                 ...(Witness)...

12                                                 ...(Witness)...

13         Subscribed and sworn to before me by ...., the testator

14  who is personally known to me or who has produced ...(type of

15  identification)... as identification, and by ...., a witness

16  who is personally known to me or who has produced ...(type of

17  identification)... as identification, and by ...., a witness

18  who is personally known to me or who has produced ...(type of

19  identification)... as identification, on ...., ...(year)....

20                              ...(Signature of Notary Public)...

21  ...(Print, type, or stamp commissioned name of Notary

22  Public)...

23

24         Section 38.  Section 732.505, Florida Statutes, is

25  amended to read:

26         732.505  Revocation by writing.--A will or codicil, or

27  any part of either, is revoked:

28         (1)  By a subsequent inconsistent will or codicil, even

29  though the subsequent inconsistent will or codicil does not

30  expressly revoke all previous wills or codicils, but the

31  revocation extends only so far as the inconsistency exists.

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (2)  By a subsequent written will, codicil, or other

  2  writing executed with the same formalities required for the

  3  execution of wills declaring the revocation, if the same

  4  formalities required for the execution of wills are observed

  5  in the execution of the will, codicil, or other writing.

  6         Section 39.  Section 732.507, Florida Statutes, is

  7  amended to read:

  8         732.507  Effect of subsequent marriage, birth, or

  9  dissolution of marriage.--

10         (1)  Neither subsequent marriage, nor subsequent

11  marriage and birth, nor or adoption of lineal descendants

12  shall revoke the prior will of any person, but the

13  pretermitted child or spouse shall inherit as set forth in ss.

14  732.301 and 732.302, regardless of the prior will.

15         (2)  Any provision provisions of a will executed by a

16  married person, which provision affects the spouse of that

17  person, shall become void upon the divorce of that person or

18  upon the dissolution or annulment of the marriage.  After the

19  dissolution, divorce, or annulment, the any such will shall be

20  administered and construed as if the former spouse had died at

21  the time of the dissolution, divorce, or annulment of the

22  marriage, unless the will or the dissolution or divorce

23  judgment expressly provides otherwise.

24         Section 40.  Paragraph (d) of subsection (2), and

25  subsections (3) and (6) of section 732.513, Florida Statutes,

26  are amended to read:

27         732.513  Devises to trustee.--

28         (2)  The devise shall not be invalid for any or all of

29  the following reasons:

30         (d)  Because the only res of the trust is the possible

31  expectancy of receiving, as a named beneficiary, a devise

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  under a will or death benefits as described in s. 733.808, and

  2  even though the testator or other person has reserved any or

  3  all rights of ownership in the such death benefit policy,

  4  contract, or plan, including the right to change the

  5  beneficiary.

  6         (3)  The devise shall dispose of property under the

  7  terms of the instrument that created the trust as previously

  8  or subsequently theretofore or thereafter amended.

  9         (6)  This section shall be cumulative to all laws

10  touching upon the subject matter.

11         Section 41.  Section 732.514, Florida Statutes, is

12  amended to read:

13         732.514  Vesting of devises.--The death of the testator

14  is the event that vests the right to devises unless the

15  testator in the his or her will has provided that some other

16  event must happen before a devise vests shall vest.

17         Section 42.  Section 732.515, Florida Statutes, is

18  amended to read:

19         732.515  Separate writing identifying devises of

20  tangible property.--A will may refer to a written statement or

21  list referred to in the decedent's will shall to dispose of

22  items of tangible personal property, other than property used

23  in trade or business, not otherwise specifically disposed of

24  by the will, other than money and property used in trade or

25  business.  To be admissible under this section as evidence of

26  the intended disposition, the writing must be signed by the

27  testator and must describe the items and the devisees with

28  reasonable certainty.  The writing may be referred to as one

29  in existence at the time of the testator's death.  It may be

30  prepared before or after the execution of the will.  It may be

31  altered by the testator after its preparation.  It may be a

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  writing that has no significance apart from its effect upon

  2  the dispositions made by the will.

  3         Section 43.  Subsection (1) of section 732.6005,

  4  Florida Statutes, is amended to read:

  5         732.6005  Rules of construction and intention.--

  6         (1)  The intention of the testator as expressed in the

  7  his or her will controls the legal effect of the testator's

  8  dispositions.  The rules of construction expressed in this

  9  part shall apply unless a contrary intention is indicated by

10  the will.

11         Section 44.  Section 732.601, Florida Statutes, is

12  amended to read:

13         732.601  Simultaneous Death Law.--Unless a contrary

14  intention appears in the governing instrument:

15         (1)  When title to property or its devolution depends

16  on priority of death and there is insufficient evidence that

17  the persons have died otherwise than simultaneously, the

18  property of each person shall be disposed of as if that person

19  he or she had survived, except as provided otherwise in this

20  law.

21         (2)  When two or more beneficiaries are designated to

22  take successively by reason of survivorship under another

23  person's disposition of property and there is insufficient

24  evidence that the beneficiaries died otherwise than

25  simultaneously, the property thus disposed of shall be divided

26  into as many equal parts as there are successive beneficiaries

27  and the parts shall be distributed to those who would have

28  taken if each designated beneficiary had survived.

29         (3)  When there is insufficient evidence that two joint

30  tenants or tenants by the entirety died otherwise than

31  simultaneously, the property so held shall be distributed

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  one-half as if one had survived and one-half as if the other

  2  had survived. If there are more than two joint tenants and all

  3  of them so died, the property thus distributed shall be in the

  4  proportion that one bears to the whole number of joint

  5  tenants.

  6         (4)  When the insured and the beneficiary in a policy

  7  of life or accident insurance have died and there is

  8  insufficient evidence that they died otherwise than

  9  simultaneously, the proceeds of the policy shall be

10  distributed as if the insured had survived the beneficiary.

11         (5)  This law shall not apply in the case of wills,

12  living trusts, deeds, or contracts of insurance in which

13  provision has been made for distribution of property different

14  from the provisions of this law.

15         Section 45.  Section 732.603, Florida Statutes, is

16  amended to read:

17         732.603  Antilapse; deceased devisee; class

18  gifts.--Unless a contrary intention appears in the will:

19         (1)  If a devisee or a beneficiary of a trust created

20  by a will who is a grandparent, or a lineal descendant of a

21  grandparent, of the testator:

22         (a)  Is dead at the time of the execution of the will

23  or at the termination of a trust interest created by a will,

24         (b)  Fails to survive the testator, or

25         (c)  Is required by the will to be treated as having if

26  he or she predeceased the testator,

27

28  then the descendants of the devisee or beneficiary take per

29  stirpes in place of the deceased devisee or beneficiary.  A

30  person who would have been a devisee under a class gift if

31  that person he or she had survived the testator shall be a

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  devisee for purposes of this section whether that person died

  2  his or her death occurred before or after the execution of the

  3  will.

  4         (2)  If a devisee or a beneficiary of a trust created

  5  by a will who is not a grandparent, or a descendant of a

  6  grandparent, of the testator:

  7         (a)  Is dead at the time of the execution of the will

  8  or at the termination of a trust interest created in a will,

  9         (b)  Fails to survive the testator, or

10         (c)  Is required by the will to be treated as having if

11  he or she predeceased the testator,

12

13  then the testamentary disposition to the devisee or

14  beneficiary shall lapse unless an intention to substitute

15  another in his or her place appears in the will.

16         Section 46.  Subsection (2) of section 732.604, Florida

17  Statutes, is amended to read:

18         732.604  Failure of testamentary provision.--

19         (2)  Except as provided in s. 732.603, if the residue

20  is devised to two or more persons and the devise to share of

21  one of the residuary devisees fails for any reason, that

22  devise his or her share passes to the other residuary devisee,

23  or to the other residuary devisees in proportion to their

24  interests in the residue.

25         Section 47.  Section 732.605, Florida Statutes, is

26  amended to read:

27         732.605  Change in securities; accessions;

28  nonademption.--

29         (1)  If the testator intended a specific devise of

30  certain securities rather than their equivalent value, the

31  specific devisee is entitled only to:

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (a)  As much of the devised securities as is a part of

  2  the estate at the time of the testator's death.

  3         (b)  Any additional or other securities of the same

  4  entity owned by the testator because of action initiated by

  5  the entity, excluding any acquired by exercise of purchase

  6  options.

  7         (c)  Securities of another entity owned by the testator

  8  as a result of a merger, consolidation, reorganization, or

  9  other similar action initiated by the entity.

10         (d)  Securities of the same entity acquired as a result

11  of a plan of reinvestment.

12         (2)  Distributions before death with respect to of a

13  specifically devised security, whether in cash or otherwise,

14  which are not provided for in subsection (1) are not part of

15  the specific devise.

16         Section 48.  Subsection (1) and paragraph (d) of

17  subsection (2) of section 732.606, Florida Statutes, are

18  amended to read:

19         732.606  Nonademption of specific devises in certain

20  cases; sale by guardian of the property; unpaid proceeds of

21  sale, condemnation, or insurance.--

22         (1)  If specifically devised property is sold by a

23  guardian of the property for the care and maintenance of the

24  ward or if a condemnation award or insurance proceeds are paid

25  to a guardian of the property as a result of condemnation,

26  fire, or casualty, the specific devisee has the right to a

27  general pecuniary devise equal to the net sale price, the

28  condemnation award, or the insurance proceeds.  This

29  subsection does not apply if, subsequent to the sale,

30  condemnation, or casualty, it is adjudicated that the

31  disability of the testator has ceased and the testator

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  survives the adjudication by 1 year. The right of the specific

  2  devisee under this subsection is reduced by any right

  3  described in he or she has under subsection (2).

  4         (2)  A specific devisee has the right to the remaining

  5  specifically devised property and:

  6         (d)  Property owned by the testator at his or her death

  7  as a result of foreclosure, or obtained instead of

  8  foreclosure, of the security for the specifically devised

  9  obligation.

10         Section 49.  Subsection (1) of section 732.701, Florida

11  Statutes, is amended to read:

12         732.701  Agreements concerning succession.--

13         (1)  No agreement to make a will, to give a devise, not

14  to revoke a will, not to revoke a devise, not to make a will,

15  or not to make a devise shall be binding or enforceable unless

16  the agreement is in writing and signed by the agreeing party

17  in the presence of two attesting witnesses. Such an agreement

18  executed by a nonresident of Florida, either before or after

19  this law takes effect, is valid in this state if valid when

20  executed under the laws of the state or country where the

21  agreement was executed, whether or not the agreeing party is a

22  Florida resident at the time of death.

23         Section 50.  Section 732.702, Florida Statutes, is

24  amended to read:

25         732.702  Waiver of spousal right to elect and of other

26  rights.--

27         (1)  The rights right of election of a surviving

28  spouse, the rights of the surviving spouse as intestate

29  successor or as a pretermitted spouse, and the rights of the

30  surviving spouse to an elective share, intestate share,

31  pretermitted share, homestead, exempt property, and family

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  allowance, and preference in appointment as personal

  2  representative of an intestate estate or any of those rights

  3  them, may be waived, wholly or partly, before or after

  4  marriage, by a written contract, agreement, or waiver, signed

  5  by the waiving party in the presence of two subscribing

  6  witnesses. The requirement of witnesses shall be applicable

  7  only to contracts, agreements, or waivers signed by Florida

  8  residents after the effective date of this law. Any contract,

  9  agreement, or waiver executed by a nonresident of Florida,

10  either before or after this law takes effect, is valid in this

11  state if valid when executed under the laws of the state or

12  country where it was executed, whether or not he or she is a

13  Florida resident at the time of death. Unless the waiver it

14  provides to the contrary, a waiver of "all rights," or

15  equivalent language, in the property or estate of a present or

16  prospective spouse, or a complete property settlement entered

17  into after, or in anticipation of, separation, dissolution of

18  marriage, or divorce, is a waiver of all rights to elective

19  share, intestate share, pretermitted share, homestead

20  property, exempt property, and family allowance, and

21  preference in appointment as personal representative of an

22  intestate estate, by the waiving party each spouse in the

23  property of the other and a renunciation by the waiving party

24  each of all benefits that would otherwise pass to the waiving

25  party either from the other by intestate succession or by the

26  provisions of any will executed before the written contract,

27  agreement, or waiver or property settlement.

28         (2)  Each spouse shall make a fair disclosure to the

29  other of that spouse's his or her estate if the agreement,

30  contract, or waiver is executed after marriage.  No disclosure

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  shall be required for an agreement, contract, or waiver

  2  executed before marriage.

  3         (3)  No consideration other than the execution of the

  4  agreement, contract, or waiver shall be necessary to its

  5  validity, whether executed before or after marriage.

  6         Section 51.  Subsections (2), (3), (4), (5), (6), and

  7  (7) of section 732.801, Florida Statutes, are amended to read:

  8         732.801  Disclaimer of interests in property passing by

  9  will or intestate succession or under certain powers of

10  appointment.--

11         (2)  SCOPE OF RIGHT TO DISCLAIM.--

12         (a)  A beneficiary may disclaim his or her succession

13  to any interest in property that, unless disclaimed, would

14  pass to the beneficiary:

15         1.  By intestate succession or devise.

16         2.  Under descent of homestead, exempt property, or

17  family allowance or under s. 222.13.

18         3.  Through exercise or nonexercise of a power of

19  appointment exercisable by will.

20         4.  Through testamentary exercise or nonexercise of a

21  power of appointment exercisable by either deed or will.

22         5.  As beneficiary of a testamentary trust.

23         6.  As a beneficiary of a testamentary gift to any

24  nontestamentary trust.

25         7.  As donee of a power of appointment created by will.

26         8.  By succession in any manner described in this

27  subsection to a disclaimed interest.

28         9.  In any manner not specifically enumerated herein

29  under a testamentary instrument.

30         (b)  Disclaimer may be made for a minor, incompetent,

31  incapacitated person, or deceased beneficiary by the guardian

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  or personal representative if the court having jurisdiction of

  2  the estate of the minor, incompetent, incapacitated person, or

  3  deceased beneficiary upon petition finds that the disclaimer:

  4         1.  Is in the best interests of those interested in the

  5  estate of the beneficiary and of those who take the

  6  beneficiary's interest by virtue of the disclaimer and

  7         2.  Is not detrimental to the best interests of the

  8  beneficiary.

  9

10  The determination shall be made on a petition filed for that

11  purpose and served on all interested persons.  If ordered by

12  the court, the guardian or personal representative shall

13  execute and record the disclaimer on behalf of the beneficiary

14  within the time and in the manner in which the beneficiary

15  could disclaim if he or she were living, of legal age, and

16  competent.

17         (3)  DISPOSITION OF DISCLAIMED INTERESTS.--

18         (a)  Unless the decedent or a donee of a power of

19  appointment has otherwise provided by will or other

20  appropriate instrument with reference to the possibility of a

21  disclaimer by the beneficiary, the interest disclaimed shall

22  descend, be distributed, or otherwise be disposed of in the

23  same manner as if the disclaimant had died immediately

24  preceding the death or other event that caused him or her to

25  become finally ascertained as a beneficiary and the

26  disclaimant's interest to become indefeasibly fixed both in

27  quality and quantity.  The disclaimer shall relate to that

28  date for all purposes, whether recorded before or after the

29  death or other event.  An interest in property disclaimed

30  shall never vest in the disclaimant.  If the provisions of s.

31  732.603 would have been applicable had the disclaimant in fact

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  1  died immediately preceding the death or other event, they

  2  shall be applicable to the disclaimed interest.

  3         (b)  Unless the his or her disclaimer instrument so

  4  provides, a beneficiary who disclaims any interest that would

  5  pass to him or her in any manner described in subsection (2)

  6  shall not be excluded from sharing in any other interest to

  7  which he or she may be entitled in any manner described in the

  8  subsection, including subparagraph (2)(a)8., even though the

  9  interest includes disclaimed assets by virtue of the

10  beneficiary's disclaimer.

11         (4)  FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER

12  INSTRUMENTS.--

13         (a)  To be A disclaimer shall be in, a writing and

14  shall declare the disclaimer and its extent, describe the

15  interest in property disclaimed, and be executed signed,

16  witnessed, and acknowledged in the manner provided for the

17  conveyance of real property.

18         (b)  A disclaimer shall be effective and irrevocable

19  when the instrument is recorded by the clerk where the estate

20  of the decedent is or has been administered.  If no

21  administration has been commenced, it may be recorded

22  recording may be made with the clerk of any county where venue

23  of administration is proper.

24         (c)  The person disclaiming shall deliver or mail a

25  copy of the disclaimer instrument to the personal

26  representative, trustee, or other person having legal title

27  to, or possession of, the property in which the disclaimed

28  interest exists.  No representative, trustee, or other person

29  shall be liable for any otherwise proper distribution or other

30  disposition made without actual notice of the disclaimer or,

31  if the disclaimer is waived or barred as hereinafter provided,

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    16-476-01                                           See HB 137




  1  for any otherwise proper distribution or other disposition

  2  made in reliance on the disclaimer, if the distribution or

  3  disposition is made without actual notice of the facts

  4  constituting the waiver or bar of barring the right to

  5  disclaim.

  6         (5)  TIME FOR RECORDING DISCLAIMER.--To be effective a

  7  disclaimer shall be recorded at any time after the creation of

  8  the interest, but in any event within 9 months after the event

  9  giving rise to the right to disclaim, including the death of

10  the decedent; or, if the disclaimant is not finally

11  ascertained as a beneficiary or the disclaimant's interest has

12  not become indefeasibly fixed both in quality and quantity at

13  the death of the decedent, then the disclaimer shall be

14  recorded not later than 6 months after the event that would

15  cause the him or her to become finally ascertained and his or

16  her interest to become indefeasibly fixed both in quality and

17  quantity.  However, a disclaimer may be effective if recorded

18  at any time after the creation of the interest, upon the

19  written consent of all interested parties as provided in s.

20  731.302.

21         (6)  WAIVER OR BAR TO RIGHT TO DISCLAIM.--

22         (a)  The right to disclaim otherwise conferred by this

23  section shall be barred if the disclaimant beneficiary is

24  insolvent at the time of recording the disclaimer the event

25  giving rise to the right to disclaim and also by:

26         1.  Making a voluntary assignment or transfer of, a

27  contract to assign or transfer, or an encumbrance of, an

28  interest in real or personal property.

29         2.  Giving a written waiver of the right to disclaim

30  the succession to an interest in real or personal property.

31

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  1         3.  Making any sale or other disposition of an interest

  2  in real or personal property pursuant to judicial process by

  3  the beneficiary before recording he or she has recorded a

  4  disclaimer.

  5         (b)  The acceptance, assignment, transfer, encumbrance,

  6  or written waiver of the right to disclaim a part of an

  7  interest in property, or the sale pursuant to judicial process

  8  of a part of an interest in property, shall not bar the right

  9  to disclaim any other part of the interest in property.

10         (7)  EFFECT OF RESTRAINTS.--The right to disclaim

11  granted by this section is shall exist irrespective of any

12  limitation imposed on the interest of the disclaimant in the

13  nature of an express or implied spendthrift provision or

14  similar restriction.

15         Section 52.  Section 732.804, Florida Statutes, is

16  amended to read:

17         732.804  Provisions relating to disposition of the body

18  cremation.--Before issuance of letters, any person may carry

19  out written instructions of the decedent relating to the

20  decedent's body and funeral and burial arrangements. The fact

21  that cremation occurred pursuant to a written direction

22  provision of a will or any written contract signed by the

23  decedent that the in which he or she expressed the intent that

24  his or her body be cremated is a complete defense to a cause

25  of action against any person acting or relying on that

26  direction the personal representative or person providing the

27  services.

28         Section 53.  Section 732.901, Florida Statutes, is

29  amended to read:

30         732.901  Production of wills.--

31

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  1         (1)  The custodian of a will must deposit the will with

  2  the clerk of the court having venue of the estate of the

  3  decedent within 10 days after receiving information that the

  4  testator is dead.  The custodian must supply the testator's

  5  date of death or social security number to the clerk upon

  6  deposit.  Willful failure to deposit the will with the clerk

  7  within the time period specified shall render the custodian

  8  responsible for all costs and damages sustained by anyone if

  9  the court finds that the custodian had no just or reasonable

10  cause for withholding the deposit of the will.

11         (2)  Upon By petition and notice of it served on him or

12  her, the custodian of any will may be compelled to produce and

13  deposit the will as provided in subsection (1).  All costs,

14  damages, and a reasonable attorney's fee shall be adjudged to

15  petitioner against the delinquent custodian if the court finds

16  that the custodian had no just or reasonable cause for failing

17  to withholding the deposit of the will.

18         Section 54.  Section 732.910, Florida Statutes, is

19  transferred and renumbered as section 765.510, Florida

20  Statutes.

21         Section 55.  Section 732.911, Florida Statutes, is

22  transferred and renumbered as section 765.511, Florida

23  Statutes.

24         Section 56.  Section 732.912, Florida Statutes, is

25  transferred and renumbered as section 765.512, Florida

26  Statutes.

27         Section 57.  Section 732.913, Florida Statutes, is

28  transferred and renumbered as section 765.513, Florida

29  Statutes.

30

31

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  1         Section 58.  Section 732.914, Florida Statutes, is

  2  transferred and renumbered as section 765.514, Florida

  3  Statutes.

  4         Section 59.  Section 732.915, Florida Statutes, is

  5  transferred and renumbered as section 765.515, Florida

  6  Statutes.

  7         Section 60.  Section 732.916, Florida Statutes, is

  8  transferred and renumbered as section 765.516, Florida

  9  Statutes.

10         Section 61.  Section 732.917, Florida Statutes, is

11  transferred and renumbered as section 765.517, Florida

12  Statutes.

13         Section 62.  Section 732.918, Florida Statutes, is

14  transferred and renumbered as section 765.518, Florida

15  Statutes.

16         Section 63.  Section 732.9185, Florida Statutes, is

17  transferred and renumbered as section 765.5185, Florida

18  Statutes.

19         Section 64.  Section 732.919, Florida Statutes, is

20  transferred and renumbered as section 765.519, Florida

21  Statutes.

22         Section 65.  Section 732.921, Florida Statutes, is

23  transferred and renumbered as section 765.521, Florida

24  Statutes.

25         Section 66.  Section 732.9215, Florida Statutes, is

26  transferred and renumbered as section 765.5215, Florida

27  Statutes.

28         Section 67.  Section 732.92155, Florida Statutes, is

29  transferred and renumbered as section 765.52155, Florida

30  Statutes.

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         Section 68.  Section 732.9216, Florida Statutes, is

  2  transferred and renumbered as section 765.5216, Florida

  3  Statutes.

  4         Section 69.  Section 732.922, Florida Statutes, is

  5  transferred and renumbered as section 765.522, Florida

  6  Statutes.

  7         Section 70.  Section 733.101, Florida Statutes, is

  8  amended to read:

  9         733.101  Venue of probate proceedings.--

10         (1)  The venue for of probate of all wills and granting

11  of letters shall be:

12         (a)  In the county in this state where the decedent was

13  domiciled had his or her domicile.

14         (b)  If the decedent had no domicile in this state,

15  then in any county where the decedent's decedent was possessed

16  of any property is located.

17         (c)  If the decedent had no domicile in this state and

18  possessed no property in this state, then in the county where

19  any debtor of the decedent resides.

20         (2)  For the purpose of this section, a married woman

21  whose husband is an alien or a nonresident of Florida may

22  establish or designate a separate domicile in this state.

23         (3)  Whenever a When any proceeding is filed laying

24  venue in an improper the wrong county, the court may transfer

25  the action in the same manner as provided in the Florida Rules

26  of Civil Procedure.  Any action taken by the court or the

27  parties before the transfer is not affected by because of the

28  improper venue.

29         Section 71.  Subsection (2) of section 733.103, Florida

30  Statutes, is amended to read:

31         733.103  Effect of probate.--

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    16-476-01                                           See HB 137




  1         (2)  In any collateral action or proceeding relating to

  2  devised property, the probate of a will in Florida shall be

  3  conclusive of its due execution; that it was executed by a

  4  competent testator, free of fraud, duress, mistake, and undue

  5  influence; and of the fact that the will was unrevoked on the

  6  testator's death.

  7         Section 72.  Section 733.104, Florida Statutes, is

  8  amended to read:

  9         733.104  Suspension of statutes of limitation in favor

10  of the personal representative.--

11         (1)  If a person entitled to bring an action dies

12  before the expiration of the time limited for the commencement

13  of the action and the cause of action survives, the action may

14  be commenced by that person's his or her personal

15  representative before the later of the expiration of the

16  statute or 12 months after the expiration and within 12 months

17  from the date of the decedent's death.

18         (2)  If a person against whom a cause of action exists

19  dies before the expiration of the time limited for

20  commencement of the action and the cause of action survives,

21  claim shall be filed on the cause of action, and it shall then

22  proceed as other claims against the estate, notwithstanding

23  the expiration of the time limited for commencement of the

24  action shall not apply if a claim is timely filed.

25         Section 73.  Section 733.105, Florida Statutes, is

26  amended to read:

27         733.105  Determination of beneficiaries.--

28         (1)  When property passes by intestate succession or

29  under a will to a person not sufficiently identified in the

30  will is unclear and there is the personal representative is in

31  doubt about:

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    16-476-01                                           See HB 137




  1         (a)  Who is entitled to receive any part of the

  2  property it or part of it, or

  3         (b)  The shares and amounts that any person is entitled

  4  to receive,

  5

  6  any interested person the personal representative may petition

  7  the court to determine beneficiaries or their shares file a

  8  petition setting forth the names, residences, and post office

  9  addresses of all persons in interest, except creditors of the

10  decedent, so far as known or ascertainable by diligent search

11  and inquiry, and the nature of their respective interests,

12  designating those who are believed by the personal

13  representative to be minors or incompetents and stating

14  whether those so designated are under legal guardianship in

15  this state.  If the personal representative believes that

16  there are, or may be, persons whose names are not known to him

17  or her who have claims against, or interest in, the estate as

18  heirs or devisees, the petition shall so state.

19         (2)  After formal notice and hearing, the court shall

20  enter an order determining the heirs or devisees or the shares

21  and amounts they are entitled to receive, or both.  Any

22  personal representative who makes distribution or takes any

23  other action pursuant to an the order determining

24  beneficiaries shall be fully protected.

25         (3)  When it is necessary to determine who are or were

26  the heirs or devisees, the court may make a determination, on

27  the petition of any interested person, in like proceedings and

28  after formal notice, irrespective of whether the estate of the

29  deceased person is administered or, if administered, whether

30  the administration of the estate has been closed or the

31  personal representative discharged.  A separate civil action

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  to determine beneficiaries may be brought under this

  2  subsection when an estate has not been is not being

  3  administered.

  4         Section 74.  Subsections (2), (3), and (4) of section

  5  733.106, Florida Statutes, are amended to read:

  6         733.106  Costs and attorney's attorney fees.--

  7         (2)  A person nominated as personal representative of

  8  the last known will, or any proponent of a the will if the

  9  person so nominated does not act within a reasonable time, if

10  in good faith justified in offering the will in due form for

11  probate, shall receive his or her costs and attorney's

12  attorney fees from out of the estate even though probate is

13  denied or revoked he or she is unsuccessful.

14         (3)  Any attorney who has rendered services to an

15  estate is entitled to compensation from an estate may apply

16  for an order awarding attorney fees, and after informal notice

17  to the personal representative and all persons bearing the

18  impact of the payment the court shall enter its order on the

19  petition.

20         (4)  When costs and attorney's attorney fees are to be

21  paid from out of the estate, the court may, in its discretion,

22  direct from what part of the estate they shall be paid.

23         Section 75.  Section 733.107, Florida Statutes, is

24  amended to read:

25         733.107  Burden of proof in contests.--In all

26  proceedings contesting the validity of a will, the burden

27  shall be upon the proponent of the will to establish prima

28  facie its formal execution and attestation.  Thereafter, the

29  contestant shall have the burden of establishing the grounds

30  on which the probate of the will is opposed or revocation is

31  sought.

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    16-476-01                                           See HB 137




  1         Section 76.  Section 733.109, Florida Statutes, is

  2  amended to read:

  3         733.109  Revocation of probate.--

  4         (1)  A proceeding to revoke the probate of a will shall

  5  be brought in the court having jurisdiction over the

  6  administration. Any interested person, including a beneficiary

  7  under a prior will, unless except those barred under s.

  8  733.212 or s. 733.2123, may commence the proceeding, before

  9  final discharge of the personal representative, petition the

10  court in which the will was admitted to probate for revocation

11  of probate.

12         (a)  The petition shall state the interest of the

13  petitioner and the grounds for revocation.

14         (b)  The petition shall be served upon the personal

15  representative and all interested persons by formal notice,

16  and thereafter proceedings shall be conducted as an adversary

17  proceeding under the rules of civil procedure.

18         (2)  Pending the determination of any petition for

19  revocation of probate, the personal representative shall

20  proceed with the administration of the estate as if no

21  revocation proceeding had been commenced, except that no

22  distribution may be made to beneficiaries devisees in

23  contravention of the rights of those who, but for the will,

24  would be entitled to the property disposed of.

25         (3)  Revocation of probate of a will shall not affect

26  or impair the title to the property theretofore purchased in

27  good faith for value from the personal representative prior to

28  an order of revocation.

29         Section 77.  Subsection (3) of section 733.201, Florida

30  Statutes, is amended to read:

31         733.201  Proof of wills.--

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    16-476-01                                           See HB 137




  1         (3)  If it appears to the court that the attesting

  2  witnesses cannot be found or that they have become incompetent

  3  after the execution of the will or their testimony cannot be

  4  obtained within a reasonable time, a will may be admitted to

  5  probate upon the oath of the personal representative nominated

  6  by the will as provided in subsection (2), whether or not the

  7  nominated personal representative he or she is interested in

  8  the estate, or upon the oath of any person having no interest

  9  in the estate under the will stating, that the person he or

10  she believes the writing exhibited to be the true last will of

11  the decedent.

12         Section 78.  Section 733.202, Florida Statutes, is

13  amended to read:

14         733.202  Petition.--Any interested person may petition

15  for administration.

16         (1)  A verified petition for administration may be

17  filed by any interested person.

18         (2)  The petition for administration shall contain:

19         (a)  A statement of the interest of the petitioner, the

20  petitioner's name and address, and the name and office address

21  of his or her attorney.

22         (b)  The name, last known address, social security

23  number, and date and place of death of the decedent and the

24  state and county of the decedent's domicile.

25         (c)  So far as is known, the names and addresses of the

26  beneficiaries and the dates of birth of any who are minors.

27         (d)  A statement showing venue.

28         (e)  The priority under part III of the person whose

29  appointment as the personal representative is sought.

30         (f)  A statement of the approximate value and nature of

31  the assets so the clerk can ascertain the amount of the filing

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  1  fee and the court can determine the amount of any bond

  2  authorized by this code.

  3         (3)  If the decedent was a nonresident of this state,

  4  the petition shall state whether domiciliary proceedings are

  5  pending in another state or country, if known, and, if so, the

  6  name and address of the foreign personal representative and

  7  the court issuing letters.

  8         (4)  In an intestate estate, the petition shall:

  9         (a)  State that after the exercise of reasonable

10  diligence the petitioner is unaware of any unrevoked wills or

11  codicils or, if the petitioner is aware of any unrevoked wills

12  or codicils, why the wills or codicils are not being probated,

13  or

14         (b)  Otherwise give the facts concerning the will or

15  codicil.

16         (5)  In a testate estate, the petition shall:

17         (a)  Identify all unrevoked wills and codicils being

18  presented for probate.

19         (b)  State that the petitioner is unaware of any other

20  unrevoked will or codicil or, if the petitioner is aware of

21  any other unrevoked will or codicil, why the other will or

22  codicil is not being probated.

23         (c)  State that the original of the decedent's last

24  will is in the possession of the court or accompanies the

25  petition or that an authenticated copy of a will probated in

26  another jurisdiction accompanies the petition.

27         Section 79.  Section 733.203, Florida Statutes, is

28  repealed.

29         Section 80.  Subsection (2) of section 733.204, Florida

30  Statutes, is amended to read:

31

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    16-476-01                                           See HB 137




  1         733.204  Probate of a will written in a foreign

  2  language.--

  3         (2)  In admitting the will to probate, the court shall

  4  establish its correct English translation.  If the original

  5  will is not or cannot be filed, a photographic copy of the

  6  original will shall be filed.  At any time during the

  7  administration any interested person may have the correctness

  8  of the translation, or any part, redetermined after formal

  9  notice to all other interested persons. No personal

10  representative who complies in good faith with the English

11  translation of the will as may then be established by the

12  court shall thereafter be held liable for doing as a result of

13  having done so.

14         Section 81.  Section 733.205, Florida Statutes, is

15  amended to read:

16         733.205  Probate of notarial will.--

17         (1)  When a copy of a notarial will in the possession

18  of a notary entitled to its custody in a foreign state or

19  country, the laws of which state or country require that the

20  will remain in the custody of the such notary, duly

21  authenticated by the notary, whose official position,

22  signature, and seal of office are further authenticated by an

23  American consul, vice consul, or other American consular

24  officer within whose jurisdiction the notary is a resident, is

25  presented to the court, it may be admitted to probate if the

26  original could have been admitted to probate in this state.

27         (2)  The duly authenticated copy shall be prima facie

28  evidence of its purported execution and of the facts stated in

29  the certificate in compliance with subsection (1).

30         (3)  Any interested person notified may oppose the

31  probate of such a notarial will or may petition for revocation

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    16-476-01                                           See HB 137




  1  of probate of such a notarial will, as in the case of original

  2  probate of a will in this state.

  3         Section 82.  Subsection (3) of section 733.206, Florida

  4  Statutes, is amended to read:

  5         733.206  Probate of will of resident after foreign

  6  probate.--

  7         (3)  Any interested person may oppose the probate of

  8  the will, or may petition for revocation of the probate of the

  9  will, as in the case of the original probate of a will in this

10  state.

11         Section 83.  Section 733.207, Florida Statutes, is

12  amended to read:

13         733.207  Establishment and probate of lost or destroyed

14  will.--Any interested person may establish the full and

15  precise terms of a lost or destroyed will and offer the will

16  for probate.

17         (1)  The establishment and probate of a lost or

18  destroyed will shall be in one proceeding.  The court shall

19  recite, and thereby establish and preserve, the full and

20  precise terms and provisions of the will in the order

21  admitting it to probate.

22         (2)  The petition for probate of a lost or destroyed

23  will shall contain a copy of the will or its substance. The

24  testimony of each witness must be reduced to writing and filed

25  and shall be evidence in any contest of the will if the

26  witness has died or moved from the state.

27         (3)  No lost or destroyed will shall be admitted to

28  probate unless formal notice has been given to those who, but

29  for the will, would be entitled to the property thereby

30  devised.  The specific content of the will must be clearly and

31  distinctly proved by the testimony of two disinterested

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  witnesses, or, if a correct copy is provided, it shall be

  2  proved by one disinterested witness.

  3         Section 84.  Section 733.208, Florida Statutes, is

  4  amended to read:

  5         733.208  Discovery of later will.--On the discovery of

  6  a later will or codicil expressly or impliedly revoking the

  7  probated will in whole or in part, pending or during

  8  administration, any interested person may petition to revoke

  9  the probate of the earlier will or to probate the later will

10  or codicil offer the later will for probate.  The proceedings

11  shall be similar to those for revocation of probate.  No later

12  will or codicil may be offered after the testate or intestate

13  estate has been completely administered and the personal

14  representative discharged closing of the estate.

15         Section 85.  Section 733.209, Florida Statutes, is

16  amended to read:

17         733.209  Estates of missing persons.--Any interested

18  person may petition to administer the estate of a missing

19  person; however, no personal representative shall be appointed

20  until the court determines that the missing person is dead.

21  The estates of missing persons shall be administered in the

22  same manner as other estates.  A petition for administration

23  of the estate shall request entry of an order declaring the

24  death of a missing person prior to appointing a personal

25  representative and commencing administration.

26         Section 86.  Section 733.212, Florida Statutes, is

27  amended to read:

28         733.212  Notice of administration; filing of objections

29  and claims.--

30         (1)  The personal representative shall promptly publish

31  a notice of administration.  The notice shall contain the name

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  of the decedent, the file number of the estate, the

  2  designation and address of the court in which the proceedings

  3  are pending, the name and address of the personal

  4  representative, and the name and address of the personal

  5  representative's attorney and state the date of first

  6  publication. The notice shall require all interested persons

  7  to file with the court:

  8         (a)  All claims against the estate within the time

  9  periods set forth in s. 733.702, or be forever barred.

10         (b)  Any objection by an interested person on whom

11  notice was served that challenges the validity of the will,

12  the qualifications of the personal representative, venue, or

13  jurisdiction of the court within the later of 3 months after

14  the date of the first publication of the notice or 30 days

15  after the date of service of a copy of the notice on the

16  objecting person.

17         (2)  Publication shall be once a week for 2 consecutive

18  weeks, two publications being sufficient, in a newspaper

19  published in the county where the estate is administered or,

20  if there is no newspaper published in the county, in a

21  newspaper of general circulation in that county.

22         (1)(3)  The personal representative shall promptly

23  serve a copy of the notice of administration on the following

24  persons who are known to the personal representative:

25         (a)  The decedent's surviving spouse;

26         (b)  Beneficiaries; and

27         (c)  The trustee of any trust described in s.

28  733.707(3); and, of which the decedent was grantor

29         (d)  Persons who may be entitled to exempt property,

30

31

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  1  in the manner provided for service of formal notice, unless

  2  served under s. 733.2123.  The personal representative may

  3  similarly serve a copy of the notice on any devisees under a

  4  known prior will or heirs or others who claim or may claim an

  5  interest in the estate.

  6         (2)  The notice shall state the name of the decedent,

  7  the file number of the estate, the designation and address of

  8  the court in which the proceedings are pending, whether the

  9  estate is testate or intestate, and, if testate, the date of

10  the will and any codicils, the name and address of the

11  personal representative, and the name and address of the

12  personal representative's attorney.  The notice shall state

13  that interested persons are required to file with the court

14  any objection by an interested person on whom the notice was

15  served which challenges the validity of the will, the

16  qualifications of the personal representative, venue, or

17  jurisdiction of the court within 3 months after the date of

18  service of a copy of the notice of administration on the

19  objecting person.

20         (3)  Any interested person on whom a copy of the notice

21  of administration was served must object to the validity of

22  the will, the qualifications of the personal representative,

23  venue, or jurisdiction of the court by filing a petition or

24  other pleading requesting relief in accordance with the

25  Florida Probate Rules within 3 months after the date of

26  service of a copy of the notice of administration on the

27  objecting person or those objections are forever barred. The

28  appointment of a personal representative or a successor

29  personal representative shall not extend or renew the period

30  for filing objections under this section, unless a new will or

31  codicil is admitted.

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  1         (4)(a)  The personal representative shall promptly make

  2  a diligent search to determine the names and addresses of

  3  creditors of the decedent who are reasonably ascertainable and

  4  shall serve on those creditors a copy of the notice within 3

  5  months after the first publication of the notice. Under s.

  6  409.9101, the Agency for Health Care Administration is

  7  considered a reasonably ascertainable creditor in instances

  8  where the decedent had received Medicaid assistance for

  9  medical care after reaching 55 years of age. Impracticable and

10  extended searches are not required.  Service is not required

11  on any creditor who has filed a claim as provided in this

12  part; a creditor whose claim has been paid in full; or a

13  creditor whose claim is listed in a personal representative's

14  timely proof of claim if the personal representative notified

15  the creditor of that listing.

16         (4)(b)  The personal representative is not individually

17  liable to any person for giving notice under this section

18  subsection, regardless of whether it is later determined that

19  such notice was not required by this section.  The service of

20  notice in accordance with this section subsection shall not be

21  construed as conferring any right admitting the validity or

22  enforceability of a claim.

23         (5)(c)  If the personal representative in good faith

24  fails to give notice required by this section subsection, the

25  personal representative is not liable to any person for the

26  failure. Liability, if any, for the failure in such a case is

27  on the estate.

28         (5)  Objections under paragraph (1)(b), by persons on

29  whom notice was served, that are not filed within the later of

30  3 months after the date of first publication of the notice or

31

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    16-476-01                                           See HB 137




  1  30 days after the date of service of a copy of the notice on

  2  the objecting person are forever barred.

  3         (6)  If a will or codicil is subsequently admitted to

  4  probate, the personal representative shall promptly serve a

  5  copy of a new notice of administration as required for an

  6  initial will admission. Claims under paragraph (1)(a) are

  7  barred as provided in s. 733.702.

  8         Section 87.  Section 733.2121, Florida Statutes, is

  9  created to read:

10         733.2121  Notice to creditors; filing of claims.--

11         (1)  Unless creditors' claims are otherwise barred by

12  s. 733.710, the personal representative shall promptly publish

13  a notice to creditors.  The notice shall contain the name of

14  the decedent, the file number of the estate, the designation

15  and address of the court in which the proceedings are pending,

16  the name and address of the personal representative, the name

17  and address of the personal representative's attorney, and the

18  date of first publication.  The notice shall state that

19  creditors must file claims against the estate with the court

20  within the time periods set forth in ss. 733.702 and 733.710,

21  or be forever barred.

22         (2)  Publication shall be once a week for 2 consecutive

23  weeks, in a newspaper published in the county where the estate

24  is administered or, if there is no newspaper published in the

25  county, in a newspaper of general circulation in that county.

26         (3)(a)  The personal representative shall promptly make

27  a diligent search to determine the names and addresses of

28  creditors of the decedent who are reasonably ascertainable,

29  even if the claims are unmatured, contingent, or unliquidated,

30  and shall promptly serve a copy of the notice on those

31  creditors.  Impracticable and extended searches are not

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  1  required.  Service is not required on any creditor who has

  2  filed a claim as provided in this part, whose claim has been

  3  paid in full, or whose claim is listed in a personal

  4  representative's timely filed proof of claim.

  5         (b)  The personal representative is not individually

  6  liable to any person for giving notice under this section,

  7  even if it is later determined that notice was not required.

  8  The service of notice to creditors in accordance with this

  9  section shall not be construed as admitting the validity or

10  enforceability of a claim.

11         (c)  If the personal representative in good faith fails

12  to give notice required by this section, the personal

13  representative is not liable to any person for the failure.

14  Liability, if any, for the failure is on the estate.

15         (d)  If a decedent at the time of death was 55 years of

16  age or older, and was not survived by a spouse, a child or

17  children under 21 years of age at the time of death, or a

18  child or children who are blind or permanently and totally

19  disabled pursuant to the eligibility requirements of Title XIX

20  (Medicaid) of the Social Security Act, the personal

21  representative shall promptly serve a copy of the notice to

22  creditors on the Agency for Health Care Administration within

23  3 months after the first publication of the notice to

24  creditors, unless the agency has already filed a statement of

25  claim in the estate proceedings.

26         (e)  If the Department of Revenue has not previously

27  been served with a copy of the notice to creditors, then

28  service of the inventory on the Department of Revenue shall be

29  the equivalent of service of a copy of the notice to

30  creditors.

31

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  1         (4)  Claims are barred as provided in ss. 733.702 and

  2  733.710.

  3         Section 88.  Section 733.2123, Florida Statutes, is

  4  amended to read:

  5         733.2123  Adjudication before issuance of letters.--A

  6  petitioner may serve formal notice of the his or her petition

  7  for administration on interested persons. A copy of the will

  8  offered for proposed to be admitted to probate shall be

  9  attached to the notice. No person who is served with formal

10  notice of the petition for administration prior to the

11  issuance of letters or who has waived notice may challenge the

12  validity of the will, testacy of the decedent, qualifications

13  of the personal representative, venue, or jurisdiction of the

14  court, except in connection with the proceedings before

15  issuance of letters.

16         Section 89.  Section 733.213, Florida Statutes, is

17  amended to read:

18         733.213  Probate as prerequisite to judicial petition

19  for construction of will.--A will may not be construed until

20  it has been admitted to probate No pleading seeking

21  construction of a will may be maintained until the will has

22  first been probated.

23         Section 90.  Section 733.301, Florida Statutes, is

24  amended to read:

25         733.301  Preference in appointment of personal

26  representative.--

27         (1)  In the granting of letters of administration, the

28  following order of preference preferences shall be observed:

29         (a)(1)  In testate estates:

30

31

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  1         1.(a)  The personal representative, or his or her

  2  successor, nominated by the will or pursuant to a power

  3  conferred in the will.

  4         2.(b)  The person selected by a majority in interest of

  5  the persons entitled to the estate.

  6         3.(c)  A devisee under the will.  If more than one

  7  devisee applies, the court may select exercise its discretion

  8  in selecting the one best qualified.

  9         (b)(2)  In intestate estates:

10         1.(a)  The surviving spouse.

11         2.(b)  The person selected by a majority in interest of

12  the heirs.

13         3.(c)  The heir nearest in degree.  If more than one

14  applies, the court may select exercise its discretion in

15  selecting the one best qualified for the office.

16         (2)(3)  A guardian of the property of a ward who if

17  competent would be entitled to appointment as, or to select,

18  the a personal representative may exercise the right to select

19  the personal representative.

20         (3)(4)  In either a testate or an intestate estate, if

21  no application is made by any of the persons described named

22  in subsection (1) or subsection (2), the court shall appoint a

23  capable person; but no person may be appointed under this

24  subsection:

25         (a)  Who works for, or holds public office under, the

26  court.

27         (b)  Who is employed by, or holds office under, any

28  judge exercising probate jurisdiction.

29         (4)(5)  After letters have been granted in either a

30  testate or an intestate estate, if a person who was entitled

31  to, and has not waived, preference over the person appointed

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  1  at the time of the his or her appointment and on whom formal

  2  notice was not served seeks the appointment, the letters

  3  granted may be revoked and the person entitled to preference

  4  may have letters granted to him or her after formal notice and

  5  hearing.

  6         (5)(6)  After letters have been granted in either a

  7  testate or an intestate estate, if any will is subsequently

  8  admitted to probate the letters shall be revoked and new

  9  letters granted as provided in subsection (1).

10         Section 91.  Section 733.302, Florida Statutes, is

11  amended to read:

12         733.302  Who may be appointed personal

13  representative.--Subject to the limitations in this part, any

14  person who is sui juris and who is a resident of Florida at

15  the time of the death of the person whose estate is to be

16  administered he or she seeks to administer is qualified to act

17  as personal representative in Florida.  A person who has been

18  convicted of a felony or who, from sickness, intemperance, or

19  want of understanding, is incompetent to discharge the duties

20  of a personal representative is not qualified.

21         Section 92.  Subsections (1) and (2) of section

22  733.305, Florida Statutes, are amended to read:

23         733.305  Trust companies and other corporations and

24  associations.--

25         (1)  All trust companies incorporated under the laws of

26  Florida the state, all state banking corporations and state

27  savings associations authorized and qualified to exercise

28  fiduciary powers in Florida, and all national banking

29  associations and federal savings and loan associations

30  authorized and qualified to exercise fiduciary powers in

31

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    16-476-01                                           See HB 137




  1  Florida shall be entitled to act as personal representatives

  2  and curators of estates.

  3         (2)  When a qualified corporation has been named as a

  4  personal representative in a will and subsequently thereafter

  5  transfers its business and assets to, consolidates or merges

  6  with, or is in any manner provided by law succeeded by,

  7  another qualified corporation, on the death of the testator,

  8  the successor corporation may qualify as personal

  9  representative, and the court may issue letters to the

10  successor corporation unless the will provides otherwise.

11         Section 93.  Section 733.306, Florida Statutes, is

12  amended to read:

13         733.306  Effect of appointment of debtor.--The

14  appointment of a debtor as personal representative shall not

15  extinguish the debt due to the decedent.  This section shall

16  not prevent a testator from releasing a debtor by will.

17         Section 94.  Section 733.307, Florida Statutes, is

18  amended to read:

19         733.307  Succession of administration.--The No personal

20  representative of the estate of a deceased personal

21  representative is not as such shall be authorized to

22  administer the estate of the first decedent.  On the death of

23  a the sole or surviving personal representative, the court

24  shall appoint a successor personal representative to complete

25  the administration of the estate.

26         Section 95.  Section 733.308, Florida Statutes, is

27  amended to read:

28         733.308  Administrator ad litem.--When it is necessary

29  that an estate must be represented and the there is no

30  personal representative is unable to do so of the estate, the

31  court shall appoint an administrator ad litem without bond to

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  represent the estate in that for that particular proceeding.

  2  The fact that the personal representative is seeking

  3  reimbursement for claims against the decedent paid by the

  4  personal representative does not require appointment of an

  5  administrator ad litem.

  6         Section 96.  Section 733.309, Florida Statutes, is

  7  amended to read:

  8         733.309  Executor de son tort.--No person shall be

  9  liable to a creditor of a decedent as executor de son tort,

10  but any person taking, converting, or intermeddling with the

11  property of a decedent shall be liable to the personal

12  representative or curator, when appointed, for the value of

13  all the property so taken or converted and for all damages to

14  the estate caused by the his or her wrongful action. This

15  section shall not be construed to prevent a creditor of a

16  decedent from suing anyone in possession of property

17  fraudulently conveyed by the decedent to set aside the

18  fraudulent conveyance.

19         Section 97.  Section 733.310, Florida Statutes, is

20  created to read:

21         733.310  Personal representative not qualified.--At any

22  time when a personal representative knows or should have known

23  that he or she would not be entitled to appointment if

24  application for appointment were then made, the personal

25  representative shall promptly file and serve a notice setting

26  forth the reasons. A personal representative who fails to

27  comply with this section shall be personally liable for costs,

28  including attorney's fees, incurred in any removal proceeding,

29  if the personal representative is removed. This liability

30  shall be cumulative to any other provided by law.

31

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    16-476-01                                           See HB 137




  1         Section 98.  Section 733.401, Florida Statutes, is

  2  repealed.

  3         Section 99.  Section 733.402, Florida Statutes, is

  4  amended to read:

  5         733.402  Bond of fiduciary personal representative;

  6  when required; form.--

  7         (1)  Unless the bond requirement has been waived by the

  8  will or by the court testator waived the requirement, every

  9  fiduciary person to whom letters are granted shall execute and

10  file a bond with surety, as defined in s. 45.011, to be

11  approved by the clerk without a service fee. The bond shall be

12  payable to the Governor and the Governor's successors in

13  office, conditioned on the performance of all duties as

14  personal representative according to law.  The bond must be

15  joint and several.

16         (2)  No bond executed by a personal representative or

17  curator shall be void or invalid because of an informality in

18  it or an informality or illegality in the appointment of the

19  fiduciary. The bond shall have the same force as if the

20  appointment had been legally made and the bond executed in

21  proper form.

22         (3)  The requirements of this section shall not apply

23  to banks and trust companies authorized by law to act as

24  personal representative.

25         (4)  On petition by any interested person or on the

26  court's own motion, the court may waive the requirement of

27  filing a bond, require a bond, increase or decrease the bond,

28  or require additional surety.

29         Section 100.  Section 733.403, Florida Statutes, is

30  amended to read:

31         733.403  Amount of bond.--

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  1         (1)  All bonds required by this part shall be in the

  2  penal sum that the court deems sufficient after consideration

  3  of the gross value of the estate, the relationship of the

  4  personal representative to the beneficiaries, exempt property

  5  and any family allowance, the type and nature of assets, known

  6  creditors, and liens and encumbrances on the assets.

  7         (2)  On petition by any interested person or on the

  8  court's own motion, the court may waive the requirement of

  9  filing a bond, require a personal representative or curator to

10  give bond, increase or decrease the bond, or require

11  additional surety.

12         Section 101.  Section 733.404, Florida Statutes, is

13  amended to read:

14         733.404  Liability of surety.--No surety for any

15  personal representative or curator shall be charged beyond the

16  value of the assets of an estate because of any omission or

17  mistake in pleading or of false pleading of the personal

18  representative or curator.

19         Section 102.  Section 733.405, Florida Statutes, is

20  amended to read:

21         733.405  Release of surety.--

22         (1)  Subject to the limitations of this section, on the

23  petition of any interested person, the surety is entitled to

24  be released from liability for the future acts and omissions

25  of the fiduciary On petitioning the surety, or the personal

26  representative of a surety, on the bond of any personal

27  representative or curator shall be entitled as a matter of

28  right to be released from future liability upon the bond.

29         (2)  Pending the hearing of the petition, the court may

30  restrain the fiduciary principal from acting in his or her

31  representative capacity, except to preserve the estate.

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  1         (3)  On hearing, the court shall enter an order

  2  prescribing the amount of the new bond for the fiduciary

  3  personal representative or curator and the date when the bond

  4  shall be filed. If the fiduciary principal fails to give the

  5  new bond, the fiduciary he or she shall be removed at once,

  6  and further proceedings shall be had as in cases of removal.

  7         (4)  The original surety or sureties shall remain be

  8  liable in accordance with the terms of its original bond for

  9  all acts and omissions of the fiduciary which occur prior to

10  personal representative or surety until he or she has given

11  the approval of the new surety and filing and approval of the

12  bond and, after the giving of the new bond, shall remain

13  liable for all the principal's acts to the time of the filing

14  and approval of the new bond. The new surety shall be liable

15  on its bond for the principal's acts only after the filing and

16  approval of the new bond.

17         Section 103.  Section 733.406, Florida Statutes, is

18  amended to read:

19         733.406  Bond premium allowable as expense of

20  administration or costs.--A personal representative Any

21  receiver, assignee, trustee, committee, guardian, executor or

22  administrator, or other fiduciary required by law to give bond

23  shall pay the reasonable premium as an expense of

24  administration as such, may include as part of his or her

25  lawful expense such reasonable sum paid such an insurer for

26  such suretyship not exceeding 1 percent per annum on the

27  amount of the bond, as the head of department, board, court,

28  judge or officer by whom, or the court or body in which, he or

29  she was appointed allows; and in all actions or proceedings

30  the party entitled to recover costs may include therein such

31

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    16-476-01                                           See HB 137




  1  reasonable sum as may have been paid such an insurer executing

  2  or guaranteeing any bond or undertaking therein.

  3         Section 104.  Section 733.501, Florida Statutes, is

  4  amended to read:

  5         733.501  Curators.--

  6         (1)  When it is necessary, the court may appoint a

  7  curator after and issue letters of curatorship to take charge

  8  of the estate of a decedent until letters are granted.  If the

  9  person entitled to letters is a resident of the county where

10  the property is situated, no curator shall be appointed until

11  formal notice is given to the person apparently so entitled to

12  letters of administration. The curator may be authorized to

13  perform any duty or function of a personal representative. If

14  there is great danger that any of the decedent's property is

15  likely to wasted, destroyed, or removed beyond the

16  jurisdiction of the court and if the appointment of a curator

17  would be delayed by giving notice, the court may appoint a

18  curator without giving notice. On appointment, the court shall

19  direct the person in possession of the effects of the decedent

20  to deliver them to the curator.  The order may be enforced by

21  contempt.

22         (2)  If there is great danger that the property or any

23  part of it is likely to be wasted, destroyed, or removed

24  beyond the jurisdiction of the court and if the appointment of

25  a curator would be delayed by giving notice, the court may

26  appoint a curator without giving notice.

27         (3)  On special order of the court, the curator may be

28  authorized to perform any duty or function of a personal

29  representative.

30

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  1         (2)(4)  Bond shall be required of the curator as the

  2  court deems necessary to secure the property.  No bond shall

  3  be required of banks and trust companies as curators.

  4         (5)  The curator shall file an inventory of the

  5  property within 20 days.  When the personal representative

  6  qualifies, the curator shall immediately account and deliver

  7  all assets of the estate in his or her hands to the personal

  8  representative within 20 days, and in default shall be subject

  9  to the provisions of this code relating to removal of personal

10  representatives.

11         (3)(6)  Curators shall be allowed reasonable

12  compensation for their services and the court may consider the

13  provisions of s. 733.617.

14         (4)  Curators shall be subject to removal and

15  surcharge.

16         Section 105.  Section 733.502, Florida Statutes, is

17  amended to read:

18         733.502  Resignation of personal representative.--A

19  personal representative may resign and be relieved of his or

20  her office. Notice of the petition shall be given to all

21  interested persons. Before relieving the personal

22  representative from his or her duties and obligations, the

23  court shall require the personal representative to file a true

24  and correct account of his or her administration and deliver

25  to his or her successor or to his or her joint personal

26  representative all of the property of the decedent and all

27  records concerning the estate. After notice to all interested

28  persons, the court may accept the resignation and then revoke

29  the letters of the resigning personal representative if the

30  interests of the estate are not jeopardized by the

31  resignation. The acceptance of the resignation, after

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  compliance with this section, shall not exonerate the any

  2  personal representative or the his or her surety from

  3  liability previously incurred.

  4         Section 106.  Section 733.503, Florida Statutes, is

  5  amended to read:

  6         733.503  Appointment of successor upon

  7  resignation.--When the personal representative's resignation

  8  is accepted, the court shall appoint a personal representative

  9  or shall appoint a curator to serve until a successor personal

10  representative is appointed If there is no joint personal

11  representative, a successor must be appointed and qualified

12  before a personal representative may be relieved of his or her

13  duties and obligations as provided in s. 733.502.

14         Section 107.  Section 733.5035, Florida Statutes, is

15  created to read:

16         733.5035  Surrender of assets after resignation.--When

17  the resignation has been accepted by the court, all estate

18  assets, records, documents, papers, and other property of or

19  concerning the estate in the resigning personal

20  representative's possession or control shall immediately be

21  surrendered to the successor fiduciary. The court may

22  establish the conditions and specify the assets and records,

23  if any, that the resigning personal representative may retain

24  until the final accounting of the resigning personal

25  representative has been approved.

26         Section 108.  Section 733.5036, Florida Statutes, is

27  created to read:

28         733.5036  Accounting and discharge following

29  resignation.--

30

31

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  1         (1)  A resigning personal representative shall file and

  2  serve a final accounting of the personal representative's

  3  administration.

  4         (2)  After determination and satisfaction of the

  5  liability, if any, of the resigning personal representative,

  6  after compensation of the personal representative and the

  7  attorney and other persons employed by the personal

  8  representative, and upon receipt of evidence that

  9  undistributed estate assets have been delivered to the

10  successor fiduciary, the personal representative shall be

11  discharged, the bond released, and the surety discharged.

12         Section 109.  Section 733.504, Florida Statutes, is

13  amended to read:

14         733.504  Causes of Removal of personal representative;

15  causes for removal.--A personal representative may be removed

16  and the his or her letters revoked for any of the following

17  causes, and the removal shall be in addition to any penalties

18  prescribed by law:

19         (1)  Adjudication of incompetency.

20         (2)  Physical or mental incapacity rendering the

21  personal representative incapable of the discharge of his or

22  her duties.

23         (3)  Failure to comply with any order of the court,

24  unless the order has been superseded on appeal.

25         (4)  Failure to account for the sale of property or to

26  produce and exhibit the assets of the estate when so required.

27         (5)  The Wasting or maladministration of the estate.

28         (6)  Failure to give bond or security for any purpose.

29         (7)  Conviction of a felony.

30         (8)  Insolvency of, or the appointment of a receiver or

31  liquidator for, any corporate personal representative.

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  1         (9)  The Holding or acquiring by the personal

  2  representative of conflicting or adverse interests against the

  3  estate that will or may adversely interfere with the

  4  administration of the estate as a whole.  This cause of

  5  removal shall not apply to the surviving spouse because of the

  6  exercise of the right to the elective share, family allowance,

  7  or exemptions, as provided elsewhere in this code.

  8         (10)  Revocation of the probate of the decedent's will

  9  that authorized or designated the appointment of the such

10  personal representative.

11         (11)  Removal of domicile from Florida, if domicile was

12  a requirement of initial appointment the personal

13  representative is no longer qualified under part III of this

14  chapter.

15         (12)  The personal representative would not now be

16  entitled to appointment.

17         Section 110.  Section 733.505, Florida Statutes, is

18  amended to read:

19         733.505  Jurisdiction in removal proceedings.--A

20  petition for removal shall be filed in the court having

21  jurisdiction of the administration issuing the letters.

22         Section 111.  Section 733.506, Florida Statutes, is

23  amended to read:

24         733.506  Proceedings for removal.--Proceedings for

25  removal of a personal representative may be commenced by the

26  court or upon the petition of an by any interested person or

27  joint personal representative. The court shall revoke the

28  letters of a removed personal representative. The removal of a

29  personal representative shall not exonerate the removed

30  personal representative or the removed personal

31  representative's surety from any liability.

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    16-476-01                                           See HB 137




  1         Section 112.  Section 733.5061, Florida Statutes, is

  2  created to read:

  3         733.5061  Appointment of successor upon removal.--When

  4  a personal representative is removed, the court shall appoint

  5  a personal representative or shall appoint a curator to serve

  6  until a successor personal representative is appointed.

  7         Section 113.  Section 733.507, Florida Statutes, is

  8  repealed.

  9         Section 114.  Section 733.508, Florida Statutes, is

10  amended to read:

11         733.508  Accounting and discharge of removed personal

12  representatives upon removal.--

13         (1)  A removed personal representative shall file and

14  serve a final accounting of that personal representative's

15  administration.

16         (2)  After determination and satisfaction of the

17  liability, if any, of the removed personal representative,

18  after compensation of that personal representative and the

19  attorney and other persons employed by that personal

20  representative, and upon receipt of evidence that the estate

21  assets have been delivered to the successor fiduciary, the

22  removed personal representative shall be discharged, the bond

23  released, and the surety discharged. A removed personal

24  representative shall file a full, true, and correct account of

25  his or her administration within 30 days after removal.

26         Section 115.  Section 733.509, Florida Statutes, is

27  amended to read:

28         733.509  Surrender of assets upon removal.--Upon entry

29  of an order removing a personal representative, the removed

30  personal representative shall immediately deliver all estate

31  assets, records, documents, papers, and other property of or

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    16-476-01                                           See HB 137




  1  concerning the estate in the removed personal representative's

  2  possession or control to the remaining personal representative

  3  or successor fiduciary The removed personal representative

  4  shall deliver to the remaining or successor personal

  5  representative all of the property of the decedent and all

  6  records, documents, papers, and other property of or

  7  concerning the estate.

  8         Section 116.  Section 733.601, Florida Statutes, is

  9  amended to read:

10         733.601  Time of accrual of duties and powers.--The

11  duties and powers of a personal representative commence upon

12  his or her appointment. The powers of a personal

13  representative relate back in time to give acts by the person

14  appointed, occurring before appointment and beneficial to the

15  estate, the same effect as those occurring after appointment

16  thereafter. Before issuance of letters, a person named

17  executor in a will may carry out written instructions of the

18  decedent relating to the decedent's body and funeral and

19  burial arrangements. A personal representative may ratify and

20  accept acts on behalf of the estate done by others when the

21  acts would have been proper for a personal representative.

22         Section 117.  Section 733.602, Florida Statutes, is

23  amended to read:

24         733.602  General duties.--

25         (1)  A personal representative is a fiduciary who shall

26  observe the standards of care applicable to trustees as

27  described by s. 737.302. A personal representative is under a

28  duty to settle and distribute the estate of the decedent in

29  accordance with the terms of the decedent's will and this code

30  as expeditiously and efficiently as is consistent with the

31  best interests of the estate. A personal representative shall

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  1  use the authority conferred upon him or her by this code, the

  2  authority in the will, if any, and the authority of any order

  3  of the court in proceedings to which he or she is party, for

  4  the best interests of interested persons, including creditors

  5  as well as beneficiaries.

  6         (2)  A personal representative shall not be liable for

  7  any act of administration or distribution if the act was

  8  authorized at the time. Subject to other obligations of

  9  administration, a probated will is authority to administer and

10  distribute the estate according to its terms. An order of

11  appointment of a personal representative is authority to

12  distribute apparently intestate assets to the heirs of the

13  decedent if, at the time of distribution, the personal

14  representative is not aware of a proceeding challenging

15  intestacy or a proceeding questioning the his or her

16  appointment or fitness to continue. Nothing in this section

17  affects the duty of the personal representative to administer

18  and distribute the estate in accordance with the rights of

19  interested persons.

20         Section 118.  Section 733.603, Florida Statutes, is

21  amended to read:

22         733.603  Personal representative to proceed without

23  court order.--A personal representative shall proceed

24  expeditiously with the settlement and distribution of a

25  decedent's estate and, except as otherwise specified by this

26  code or ordered by the court, shall do so without

27  adjudication, order, or direction of the court. A personal

28  representative may invoke the jurisdiction of the court to

29  resolve judicial questions concerning the estate or its

30  administration.

31

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  1         Section 119.  Section 733.604, Florida Statutes, is

  2  amended to read:

  3         733.604  Inventory.--

  4         (1)(a)  Unless an inventory has been previously filed

  5  Within 60 days after issuance of letters, a personal

  6  representative who is not a curator or a successor to another

  7  personal representative who has previously discharged the duty

  8  shall file a verified an inventory of property of the estate,

  9  listing it with reasonable detail and including for each

10  listed item its estimated fair market value at the date of the

11  decedent's death. Unless otherwise ordered by the court for

12  good cause shown, the any such inventory or amended or

13  supplementary inventory is subject to inspection only by the

14  clerk of the court, or the clerk's representative, the

15  personal representative, and the personal representative's

16  attorney, and other interested persons.

17         (b)  The initial opening of any safe-deposit box of the

18  decedent must be conducted in the presence of an employee of

19  the institution where the box is located and the personal

20  representative. The inventory of the contents of the box also

21  must be conducted in the presence of the employee and the

22  personal representative, each of whom must verify the contents

23  of the box by signing a copy of the inventory. The personal

24  representative shall file the safe-deposit box inventory with

25  the court within 10 days after the box is opened.

26         (2)  The personal representative shall serve a copy of

27  the inventory on the Department of Revenue, as provided in s.

28  199.062(4), the surviving spouse, each heir at law in an

29  intestate estate, each residuary beneficiary in a testate

30  estate, and any other interested person who may request it;

31  and the personal representative shall file proof of such

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    16-476-01                                           See HB 137




  1  service. The inventory shall be verified by the personal

  2  representative.

  3         (2)(3)  If the personal representative learns of any

  4  property not included in the original inventory, or learns

  5  that the estimated value or description indicated in the

  6  original inventory for any item is erroneous or misleading,

  7  the personal representative he or she shall file a verified

  8  prepare an amended or supplementary inventory showing any the

  9  estimated value of the new items and their estimated value

10  item at the date of the decedent's death, or the revised

11  estimated value or description; and the personal

12  representative shall serve a copy of the amended or

13  supplementary inventory on each person on whom a copy of the

14  inventory was served and shall file proof of such service.

15  The amended or supplementary inventory shall be verified by

16  the personal representative.

17         (3)(4)  Upon written request to the personal

18  representative, a beneficiary shall be furnished a written

19  explanation of how the inventory value for an asset was

20  determined, or, if an appraisal was obtained, a copy of the

21  appraisal, as follows:

22         (a)  To a residuary beneficiary or heir in an intestate

23  estate, regarding all inventoried assets.

24         (b)  To any other beneficiary, regarding all assets

25  distributed or proposed to be distributed to that beneficiary.

26  Upon the written request of a beneficiary for any asset

27  specifically devised to that beneficiary, a beneficiary for

28  any asset received by that beneficiary in satisfaction of a

29  general devise, or a residuary beneficiary of a intestate

30  estate or an heir of an intestate estate, for any asset not

31  specifically devised, the personal representative shall

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    16-476-01                                           See HB 137




  1  promptly furnish a written explanation of how the inventory

  2  value for the asset was determined, including whether the

  3  personal representative obtained an independent appraisal for

  4  that asset and from whom the appraisal was obtained. The

  5  personal representative must notify each beneficiary of that

  6  beneficiary's rights under this subsection the right to

  7  request information regarding determination of the inventory

  8  value of an asset.  Neither a request nor the failure to

  9  request information under this subsection affects any rights

10  of a beneficiary in subsequent proceedings concerning any

11  accounting of the personal representative or the propriety of

12  any action of the personal representative.

13         Section 120.  Section 733.605, Florida Statutes, is

14  repealed.

15         Section 121.  Section 733.6065, Florida Statutes, is

16  created to read:

17         733.6065  Opening safe-deposit box.--The initial

18  opening of the decedent's safe-deposit box shall be conducted

19  in the presence of any two of the following persons:  an

20  employee of the institution where the box is located, the

21  personal representative, or the personal representative's

22  attorney of record.  Each person who is present must verify

23  the contents of the box by signing a copy of the inventory

24  under penalties of perjury.  The personal representative shall

25  file the safe-deposit box inventory, together with a copy of

26  the box entry record from a date which is 6 months prior to

27  the date of death to the date of inventory, with the court

28  within 10 days after the box is opened.  Unless otherwise

29  ordered by the court, this inventory and the attached box

30  entry record is subject to inspection only by persons entitled

31

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  1  to inspect an inventory under s. 733.604(1).  The personal

  2  representative may remove the contents of the box.

  3         Section 122.  Section 733.607, Florida Statutes, is

  4  amended to read:

  5         733.607  Possession of estate.--

  6         (1)  Except as otherwise provided by a decedent's will,

  7  every personal representative has a right to, and shall take

  8  possession or control of, the decedent's property, except the

  9  protected homestead, but any real property or tangible

10  personal property may be left with, or surrendered to, the

11  person presumptively entitled to it unless possession of the

12  property by the personal representative will be necessary for

13  purposes of administration. The request by a personal

14  representative for delivery of any property possessed by a

15  beneficiary is conclusive evidence that the possession of the

16  property by the personal representative is necessary for the

17  purposes of administration, in any action against the

18  beneficiary for possession of it. The personal representative

19  shall take all steps reasonably necessary for the management,

20  protection, and preservation of the estate until distribution

21  and. He or she may maintain an action to recover possession of

22  property or to determine the title to it.

23         (2)  If, after providing for statutory entitlements and

24  all devises other than residuary devises, the assets of the

25  decedent's estate are insufficient to pay the expenses of the

26  administration and obligations of the decedent's estate and

27  enforceable claims of the decedent's creditors, the personal

28  representative is entitled to payment from the trustee of a

29  trust described in s. 733.707(3), in the amount the personal

30  representative certifies in writing to be required to satisfy

31  the such insufficiency.

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  1         Section 123.  Section 733.608, Florida Statutes, is

  2  amended to read:

  3         733.608  General power of the personal

  4  representative.--

  5         (1)  All real and personal property of the decedent,

  6  except the protected homestead, within this state and the

  7  rents, income, issues, and profits from it shall be assets in

  8  the hands of the personal representative:

  9         (a)(1)  For the payment of devises, debts, family

10  allowance, elective share, estate and inheritance taxes,

11  claims, charges, and expenses of the administration and

12  obligations of the decedent's estate.

13         (b)(2)  To enforce contribution and equalize

14  advancement.

15         (c)(3)  For distribution.

16         (2)  If property that reasonably appears to the

17  personal representative to be protected homestead is not in

18  the possession of a person who appears to have an interest in

19  the property, the personal representative is authorized, but

20  not required, to take possession of that property for the

21  limited purpose of preserving, insuring, and protecting it for

22  the heir or beneficiary, pending a determination of its

23  homestead status.  If the personal representative takes

24  possession of that property, any rents and revenues may be

25  collected by the personal representative for the account of

26  the heir or beneficiary, but the personal representative shall

27  have no duty to rent or otherwise make the property

28  productive.

29         Section 124.  Section 733.609, Florida Statutes, is

30  amended to read:

31

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    16-476-01                                           See HB 137




  1         733.609  Improper exercise of power; breach of

  2  fiduciary duty.--A personal representative's fiduciary duty is

  3  the same as the fiduciary duty of a trustee of an express

  4  trust and a personal representative is liable to interested

  5  persons for damage or loss resulting from the breach of this

  6  duty.  In all actions for breach of fiduciary duty or

  7  challenging the exercise of or failure to exercise a personal

  8  representative's powers, the court shall award taxable costs

  9  as in chancery actions, including attorney's fees If the

10  exercise of power concerning the estate is improper or in bad

11  faith, the personal representative is liable to interested

12  persons for damage or loss resulting from a breach of his or

13  her fiduciary duty to the same extent as a trustee of an

14  express trust. In all actions challenging the proper exercise

15  of a personal representative's powers, the court shall award

16  taxable costs as in chancery actions, including attorney's

17  fees.

18         Section 125.  Section 733.610, Florida Statutes, is

19  amended to read:

20         733.610  Sale, encumbrance or transaction involving

21  conflict of interest.--Any sale or encumbrance to the personal

22  representative or the personal representative's his or her

23  spouse, agent, or attorney, or any corporation or trust in

24  which the personal representative has a substantial beneficial

25  interest, or any transaction that is affected by a conflict of

26  interest on the part of the personal representative, is

27  voidable by any interested person except one who has consented

28  after fair disclosure, unless:

29         (1)  The will or a contract entered into by the

30  decedent expressly authorized the transaction; or

31

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    16-476-01                                           See HB 137




  1         (2)  The transaction is approved by the court after

  2  notice to interested persons.

  3         Section 126.  Section 733.611, Florida Statutes, is

  4  amended to read:

  5         733.611  Persons dealing with the personal

  6  representative; protection.--Except as provided in s.

  7  733.613(1), a person who in good faith either assists or deals

  8  for value with a personal representative or deals with him or

  9  her for value is protected as if the personal representative

10  acted properly exercised his or her power. The fact that a

11  person knowingly deals with the personal representative does

12  not alone require the person to inquire into the authority of

13  the personal representative existence of his or her power, the

14  limits on the power, or the propriety of its exercise.  A

15  person is not bound to see to the proper application of estate

16  assets paid or delivered to the personal representative. This

17  The protection here expressed extends to instances in which a

18  procedural irregularity or jurisdictional defect occurred in

19  proceedings leading to the issuance of letters, including a

20  case in which the alleged decedent is alive.  This protection

21  is in addition to any protection afforded by The protection

22  here expressed is not by substitution for that provided in

23  comparable provisions of the laws relating to commercial

24  transactions and laws simplifying transfers of securities by

25  fiduciaries.

26         Section 127.  Section 733.612, Florida Statutes, is

27  amended to read:

28         733.612  Transactions authorized for the personal

29  representative; exceptions.--Except as otherwise provided by

30  the will or court by order of court, and subject to the

31  priorities stated in s. 733.805, without court order of court,

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    16-476-01                                           See HB 137




  1  a personal representative, acting reasonably for the benefit

  2  of the interested persons, may properly:

  3         (1)  Retain assets owned by the decedent, pending

  4  distribution or liquidation, including those in which the

  5  personal representative is personally interested or that are

  6  otherwise improper for fiduciary trust investments.

  7         (2)  Perform or compromise, or, when proper, refuse to

  8  perform performance of, the decedent's contracts.  In

  9  performing the decedent's enforceable contracts by the

10  decedent to convey or lease real property, among other

11  possible courses of action, the personal representative may:

12         (a)  Convey the real property for cash payment of all

13  sums remaining due or for the purchaser's note for the sum

14  remaining due, secured by a mortgage on the property land.

15         (b)  Deliver a deed in escrow, with directions that the

16  proceeds, when paid in accordance with the escrow agreement,

17  be paid as provided to the distributees of the decedent, as

18  designated in the escrow agreement.

19         (3)  Receive assets from fiduciaries or other sources.

20         (4)  Invest funds as provided in ss. 518.10-518.14,

21  considering the amount to be invested, liquidity needs of the

22  estate, and the time until distribution will be made If funds

23  are not needed to meet debts and expenses currently payable

24  and are not immediately distributable, deposit or invest

25  liquid assets of the estate, including moneys received from

26  the sale of other assets, in federally insured

27  interest-bearing accounts, readily marketable secured loan

28  arrangements, or other prudent investments that would be

29  reasonable for use by trustees.

30         (5)  Acquire or dispose of an asset, excluding real

31  property in this or another state, for cash or on credit and

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  1  at public or private sale, and manage, develop, improve,

  2  exchange, partition, or change the character of an estate

  3  asset.

  4         (6)  Make ordinary or extraordinary repairs or

  5  alterations in buildings or other structures; demolish

  6  improvements; or erect new party walls or buildings.

  7         (7)  Enter into a lease, as lessor or lessee, for a

  8  term within, or extending beyond, the period of

  9  administration, with or without an option to renew.

10         (8)  Enter into a lease or arrangement for exploration

11  and removal of minerals or other natural resources or enter

12  into a pooling or unitization agreement.

13         (9)  Abandon property when it is valueless or so

14  encumbered, or in a such condition, that it is of no benefit

15  to the estate.

16         (10)  Vote, or refrain from voting, stocks or other

17  securities in person or by general or limited proxy.

18         (11)  Pay calls, assessments, and other sums chargeable

19  or accruing against, or on account of, securities, unless

20  barred by the provisions relating to claims.

21         (12)  Hold property in the name of a nominee or in

22  other form without disclosure of the interest of the estate,

23  but the personal representative is liable for any act of the

24  nominee in connection with the property so held.

25         (13)  Insure the assets of the estate against damage

26  or, loss, and liability and insure against personal and

27  fiduciary liability himself or herself against liability to

28  third persons.

29         (14)  Borrow money, with or without security, to be

30  repaid from the estate assets or otherwise, other than real

31  property, and advance money for the protection of the estate.

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  1         (15)  Extend, renew, or in any manner modify any

  2  obligation owing to the estate. If the personal representative

  3  holds a mortgage, security interest, or other lien upon

  4  property of another person, he or she may accept a conveyance

  5  or transfer of encumbered assets from the owner in

  6  satisfaction of the indebtedness secured by its lien instead

  7  of foreclosure.

  8         (16)  Pay taxes, assessments, and other expenses

  9  incident to the administration of the estate.

10         (17)  Sell or exercise stock subscription or conversion

11  rights or consent, directly or through a committee or other

12  agent, to the reorganization, consolidation, merger,

13  dissolution, or liquidation of a corporation or other business

14  enterprise.

15         (18)  Allocate items of income or expense to either

16  estate income or principal, as permitted or provided by law.

17         (19)  Employ persons, including, but not limited to,

18  attorneys, accountants, auditors, appraisers, investment

19  advisers, and others, even if they are one and the same as the

20  personal representative or are associated with the personal

21  representative, to advise or assist the personal

22  representative in the performance of his or her administrative

23  duties; act upon the recommendations of those such employed

24  persons without independent investigation; and, instead of

25  acting personally, employ one or more agents to perform any

26  act of administration, whether or not discretionary. Any fees

27  and compensation paid to a any such person who is the same as,

28  associated with, or employed by, the personal representative

29  shall be taken into consideration in determining the personal

30  representative's compensation.

31

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  1         (20)  Prosecute or defend claims or proceedings in any

  2  jurisdiction for the protection of the estate and of the

  3  personal representative in the performance of his or her

  4  duties.

  5         (21)  Sell, mortgage, or lease any personal property of

  6  the estate or any interest in it for cash, credit, or for part

  7  cash or part credit, and with or without security for the

  8  unpaid balance.

  9         (22)  Continue any unincorporated business or venture

10  in which the decedent was engaged at the time of his or her

11  death:

12         (a)  In the same business form for a period of not more

13  than 4 months from the date of his or her appointment, if

14  continuation is a reasonable means of preserving the value of

15  the business, including good will.

16         (b)  In the same business form for any additional

17  period of time that may be approved by court order of court.

18         (23)  Provide for exoneration of the personal

19  representative from personal liability in any contract entered

20  into on behalf of the estate.

21         (24)  Satisfy and settle claims and distribute the

22  estate as provided in this code.

23         (25)  Enter into agreements with the proper officer or

24  department head, commissioner, or agent of any department of

25  the government of the United States, waiving the statute of

26  limitations concerning the assessment and collection of any

27  federal tax or any deficiency in a federal tax.

28         (26)  Make partial part distribution to the

29  beneficiaries of any part of the estate not necessary to

30  satisfy claims, expenses of administration, taxes, family

31  allowance, exempt property, and an elective share, in

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    16-476-01                                           See HB 137




  1  accordance with the decedent's will or as authorized by

  2  operation of law.

  3         (27)  Execute any instruments necessary in the exercise

  4  of the personal representative's powers.

  5         Section 128.  Section 733.6121, Florida Statutes, is

  6  amended to read:

  7         733.6121  Powers of personal representatives conferred

  8  by this part in relation to environmental or human health laws

  9  affecting property subject to administration or to property

10  subject to administration contaminated with hazardous or toxic

11  substances; liability.--

12         (1)  Except as otherwise provided by the will or by

13  court order of court, and subject to s. 733.805, the personal

14  representative has, without court authorization, the powers

15  specified in subsection (2).

16         (2)  A personal representative has the power, acting

17  reasonably and for the benefit of the interested persons

18  parties:

19         (a)  To inspect or investigate, or cause to be

20  inspected or investigated, property subject to administration,

21  including interests in sole proprietorships, partnerships, or

22  corporations and any assets owned by any such a business

23  entity for the purpose of determining compliance with an

24  environmental law affecting that property or to respond to an

25  actual or threatened violation of an environmental law

26  affecting that property;

27         (b)  To take, on behalf of the estate, any action

28  necessary to prevent, abate, or otherwise remedy an actual or

29  potential violation of an environmental law affecting property

30  subject to administration, either before or after initiation

31  of an enforcement action by a governmental body;

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  1         (c)  To settle or compromise at any time any claim

  2  against the estate or the personal representative that may be

  3  asserted by a governmental body or private party which

  4  involves the alleged violation of an environmental law

  5  affecting property subject to administration over which the

  6  personal representative has responsibility;

  7         (d)  To disclaim any power granted by any document,

  8  statute, or rule of law which, in the sole judgment of the

  9  personal representative, could cause the personal

10  representative to incur personal liability, or the estate to

11  incur liability, under any environmental law;

12         (e)  To decline to serve as a personal representative,

13  or, having undertaken to serve as a personal representative,

14  to resign at any time, if the personal representative believes

15  that there is or could be a conflict of interest in his or her

16  fiduciary capacity and in his or her individual capacity

17  because of potential claims or liabilities that could be

18  asserted against it on behalf of the estate by reason of the

19  type or condition of the assets held; or

20         (f)  To charge against the assets of the estate the

21  cost of any inspection, investigation, review, abatement,

22  response, cleanup, or remedial action considered reasonable by

23  the personal representative that this section authorizes the

24  personal representative to take; and, in the event of the

25  closing or termination of the estate or the transfer of the

26  estate property to another personal representative, to hold

27  moneys sufficient to cover the cost of cleaning up any known

28  environmental problem.

29         (3)  A personal representative is not personally liable

30  to any beneficiary or any other party for a decrease in value

31  of assets in an estate by reason of the personal

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    16-476-01                                           See HB 137




  1  representative's compliance or efforts to comply with an

  2  environmental law, specifically including any reporting

  3  requirement under that law.

  4         (4)  A personal representative who acquires ownership

  5  or control of a vessel or other property without having owned,

  6  operated, or materially participated in the management of that

  7  vessel or property before assuming ownership or control as

  8  personal representative is not considered an owner or operator

  9  for purposes of liability under chapter 376, chapter 403, or

10  any other environmental law.  A personal representative who

11  willfully, knowingly, or recklessly causes or exacerbates a

12  release or threatened release of a hazardous substance is

13  personally liable for the cost of the response, to the extent

14  that the release or threatened release is attributable to the

15  personal representative's activities.  This subsection does

16  not preclude the filing of claims against the assets that

17  constitute the estate held by the personal representative or

18  the filing of actions against the personal representative as

19  representative of the estate in his or her representative

20  capacity. In any such an action, an award or judgment against

21  the personal representative must be satisfied only from the

22  assets of the estate.

23         (5)  Neither the acceptance by the personal

24  representative of the property or a failure by the personal

25  representative to inspect or investigate the property creates

26  any inference of as to whether there is liability under an

27  environmental law with respect to that property.

28         (6)  For the purposes of this section, the term

29  "environmental law" means a federal, state, or local law,

30  rule, regulation, or ordinance that relates to protection of

31  the environment or human health, and the term "hazardous

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  1  substance" means a substance, material, or waste defined as

  2  hazardous or toxic, or any contaminant, pollutant, or

  3  constituent thereof, or otherwise regulated by an

  4  environmental law.

  5         (7)  This section applies to any estate admitted to

  6  probate on or after July 1, 1995.

  7         Section 129.  Section 733.613, Florida Statutes, is

  8  amended to read:

  9         733.613  Personal representative's right to sell real

10  property.--

11         (1)  When a personal representative of an a decedent

12  dying intestate estate, or of an estate whose testator has not

13  conferred upon him or her a power of sale or whose testator

14  has granted a power of sale but the his or her power is so

15  limited by the will or by operation of law that it cannot be

16  conveniently exercised, shall consider that it is for the best

17  interest of the estate and of those interested in it that real

18  property be sold, the personal representative may sell it at

19  public or private sale.  No title shall pass until the sale is

20  authorized or confirmed by the court authorizes or confirms

21  the sale.  Petition for authorization or confirmation of sale

22  shall set forth the reasons for the sale, a description of the

23  property sold or to be sold, and the price and terms of the

24  sale. Except when interested persons have joined in the

25  petition for sale of real property or have consented to the

26  sale, notice of the petition shall be given. No bona fide

27  purchaser shall be required to examine any proceedings before

28  the order of sale.

29         (2)  When a decedent's will confers specific power to

30  sell or mortgage real property or a general power to sell any

31  asset of the estate, the personal representative may sell,

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  1  mortgage, or lease, without authorization or confirmation of

  2  court, any real property of the estate or any interest therein

  3  for cash or credit, or for part cash and part credit, and with

  4  or without security for unpaid balances.  The sale, mortgage,

  5  or lease need not be justified by a showing of necessity, and

  6  the sale pursuant to power of sale shall be valid.

  7         (3)  In a sale or mortgage that occurs under a specific

  8  power to sell or mortgage real property, or under a court

  9  order authorizing or confirming that act, the purchaser or

10  lender takes title free of claims of creditors of the estate

11  and entitlements of estate beneficiaries.

12         Section 130.  Section 733.614, Florida Statutes, is

13  amended to read:

14         733.614  Powers and duties of successor personal

15  representative.--A successor personal representative has the

16  same power and duty as the original personal representative to

17  complete the administration and distribution of the estate as

18  expeditiously as possible, but he or she shall not exercise

19  any power made personal to the personal representative named

20  in the will without court approval.

21         Section 131.  Section 733.615, Florida Statutes, is

22  amended to read:

23         733.615  Joint personal representatives; when joint

24  action required.--

25         (1)  If two or more persons are appointed joint

26  personal representatives, and unless the will provides

27  otherwise, the concurrence of all joint personal

28  representatives appointed pursuant to a will or codicil

29  executed prior to October 1, 1987, or appointed to administer

30  an intestate estate of a decedent who died prior to October 1,

31  1987, or of a majority of joint personal representatives

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  1  appointed pursuant to a will or codicil executed on or after

  2  October 1, 1987, or appointed to administer an the intestate

  3  estate of a decedent dying on or after October 1, 1987, is

  4  required on all acts connected with the administration and

  5  distribution of the estate.  This restriction does not apply

  6  when any joint personal representative receives and receipts

  7  for property due the estate, when the concurrence required

  8  under this subsection cannot readily be obtained in the time

  9  reasonably available for emergency action necessary to

10  preserve the estate, or when a joint personal representative

11  has been delegated to act for the others.

12         (2)  Where action by a majority of the joint personal

13  representatives appointed is authorized, a joint personal

14  representative who has not joined in exercising a power is not

15  liable to the beneficiaries or to others for the consequences

16  of the exercise, and a dissenting joint personal

17  representative is not liable for the consequences of an action

18  act in which the dissenting personal representative he or she

19  joins at the direction of the majority of the joint personal

20  representatives, if the dissent is he or she expressed his or

21  her dissent in writing to the other any of his or her joint

22  personal representatives at or before the time of the action

23  joinder.

24         (3)  A person dealing with a joint personal

25  representative without actual knowledge that joint personal

26  representatives have been appointed, or if advised by a the

27  joint personal representative with whom he or she deals that

28  the joint personal representative has authority to act alone

29  for any of the reasons mentioned in subsection (1), is as

30  fully protected in dealing with that joint personal

31  representative as if that joint personal representative

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  possessed and properly exercised the power he or she purports

  2  to exercise.

  3         Section 132.  Section 733.616, Florida Statutes, is

  4  amended to read:

  5         733.616  Powers of surviving personal

  6  representatives.--Unless otherwise provided by the terms of

  7  the will or a court order otherwise provide, every power

  8  exercisable by joint personal representatives may be exercised

  9  by the one or more remaining after the appointment of one or

10  more is terminated., and If one or more, but not all,

11  nominated as joint personal representatives are not appointed,

12  those appointed may exercise all the powers granted to those

13  nominated incident to the office.

14         Section 133.  Section 733.617, Florida Statutes, is

15  amended to read:

16         733.617  Compensation of personal representative.--

17         (1)  A personal representative shall be entitled to a

18  commission payable from the estate assets without court order

19  as compensation for ordinary services.  The commission shall

20  be based on the compensable value of the estate, which is the

21  inventory value of the probate estate assets and the income

22  earned by the estate during administration As compensation for

23  its ordinary services, a personal representative shall be

24  entitled, without order of court unless otherwise stated, to a

25  commission payable from the estate assets.  Such commission

26  shall be based upon the probate estate's value as determined

27  finally for probate inventory purposes and as accounted for by

28  the personal representative, which value shall include all

29  property, real or personal, tangible or intangible, and all

30  income earned thereon.

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (2)  A commission computed on the compensable value of

  2  the estate is presumed to be reasonable compensation for a

  3  personal representative in formal administration Upon the

  4  probate estate's value as defined in subsection (1), such

  5  commission shall be computed as follows:

  6         (a)  At the rate of 3 percent for the first $1 million.

  7         (b)  At the rate of 2.5 percent for all above $1

  8  million and not exceeding $5 million.

  9         (c)  At the rate of 2 percent for all above $5 million

10  and not exceeding $10 million.

11         (d)  At the rate of 1.5 percent for all above $10

12  million.

13         (3)  In addition to the previously described aforesaid

14  commission, a personal representative shall be allowed such

15  further compensation as is the court may deem just and

16  reasonable for any extraordinary services including, but not

17  limited to:

18         (a)  The sale of real or personal property.

19         (b)  The conduct of litigation on behalf of or against

20  the estate.

21         (c)  Involvement in proceedings for the adjustment or

22  payment of any taxes.

23         (d)  The carrying on of the decedent's business.

24         (e)  Dealing with protected homestead.

25         (f)(e)  Any other special services that which may be

26  necessary for the personal representative to perform.

27         (4)  If the a decedent's will provides that a personal

28  representative's compensation shall be based upon specific

29  criteria, other than a general reference to commissions

30  allowed by law or words or similar import, including, but not

31  limited to, rates, amounts, commissions, or reference to the

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  personal representative's regularly published schedule of fees

  2  in effect at the decedent's date of death, or words of similar

  3  import, then a personal representative shall be entitled to

  4  compensation in accordance with that such provision.  However,

  5  except for such references in the a decedent's will to the

  6  personal representative's regularly published schedule of fees

  7  in effect at the decedent's date of death, or words of similar

  8  import, if there is no written contract with the decedent

  9  regarding compensation, a personal representative may renounce

10  the provisions contained in the will and be entitled to

11  compensation under this section hereunder.  A personal

12  representative may also renounce the its right to all or any

13  part of the compensation.

14         (5)  If the probate estate's compensable value as

15  defined in subsection (1) is $100,000 or more, and there are

16  two representatives, each personal representative is entitled

17  to the full commission allowed to a sole personal

18  representative.  If there are more than two personal

19  representatives and the probate estate's compensable value is

20  more than $100,000 or more, the compensation to which two

21  would be entitled must be apportioned among the personal

22  representatives.  The basis for such apportionment shall be

23  one full commission allowed to the personal representative who

24  has possession of and primary responsibility for

25  administration of the assets and one full commission among the

26  remaining personal representatives according to the services

27  rendered by each of them respectively.  If the probate

28  estate's compensable value is less than $100,000 and there is

29  more than one personal representative, then one full

30  commission allowed herein to a sole personal representative

31  must be apportioned among the personal representatives

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  according to the services rendered by each of them

  2  respectively.

  3         (6)  If the personal representative is a member of The

  4  Florida Bar and has rendered legal services in connection with

  5  the administration of the estate, then in addition to a fee as

  6  personal representative, there also shall be allowed a fee for

  7  the legal services rendered.

  8         (7)  Upon petition of any interested person, the court

  9  may increase or decrease the compensation for ordinary

10  services of the personal representative or award compensation

11  for extraordinary services if the facts and circumstances of

12  the particular administration warrant.  In determining

13  reasonable compensation, the court shall consider all of the

14  following factors, giving weight to each as it determines

15  appropriate The compensation for a personal representative as

16  set forth in subsections (2) and (3) may, upon petition of any

17  interested person, be increased or decreased by the court.  In

18  determining whether to increase or decrease the compensation

19  for ordinary services, the court must consider each of the

20  following factors, giving each such weight as it determines to

21  be appropriate:

22         (a)  The promptness, efficiency, and skill with which

23  the administration was handled by the personal representative;

24         (b)  The responsibilities assumed by and the potential

25  liabilities of the personal representative;

26         (c)  The nature and value of the assets that are

27  affected by the decedent's death;

28         (d)  The benefits or detriments resulting to the estate

29  or interested persons its beneficiaries from the personal

30  representative's services;

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (e)  The complexity or simplicity of the administration

  2  and the novelty novelties of the issues presented;

  3         (f)  The personal representative's participation in tax

  4  planning for the estate and the estate's beneficiaries and in

  5  tax return preparation, review, or approval;

  6         (g)  The nature of the probate, nonprobate, and exempt

  7  assets,; the expenses of administration,; the liabilities of

  8  the decedent,; and the compensation paid to other

  9  professionals and fiduciaries;

10         (h)  Any delay in payment of the compensation after the

11  services were furnished; and

12         (i)  Any other relevant factors.

13         Section 134.  Section 733.6171, Florida Statutes, is

14  amended to read:

15         733.6171  Compensation of attorney for the personal

16  representative.--

17         (1)  Attorneys for personal representatives shall be

18  entitled to reasonable compensation for their services payable

19  from the estate assets of the estate without court order.

20         (2)  The attorney, the personal representative, and

21  persons bearing the impact of the compensation may agree to

22  compensation determined in a different manner than provided in

23  this section. Compensation may also be determined in a

24  different manner than provided in this section if the manner

25  is disclosed to the parties bearing the impact of the

26  compensation and if no objection is made as provided for in

27  the Florida Probate Rules in the petition for discharge or

28  final accounting and there is no objection filed pursuant to

29  s. 733.901.

30         (3)  Compensation provided in the following schedule

31  for ordinary services of attorneys in formal estate

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  administration is presumed to be reasonable if based on the

  2  compensable upon the inventory value of the estate, which is

  3  the inventory value of the probate estate assets and the

  4  income earned by the estate during the administration as

  5  provided in the following schedule is presumed to be

  6  reasonable compensation for attorneys in formal estate

  7  administration:

  8         (a)  One thousand five hundred dollars for estates

  9  having a value of $40,000 or less.

10         (b)  An additional $750 for estates having a value of

11  more than $40,000 and not exceeding $70,000.

12         (c)  An additional $750 for estates having a value of

13  more than $70,000 and not exceeding $100,000.

14         (d)  For estates having a value in excess of $100,000,

15  at the rate of 3 percent on the next $900,000.

16         (e)  At the rate of 2.5 percent for all above $1

17  million and not exceeding $3 million.

18         (f)  At the rate of 2 percent for all above $3 million

19  and not exceeding $5 million.

20         (g)  At the rate of 1.5 percent for all above $5

21  million and not exceeding $10 million.

22         (h)  At the rate of 1 percent for all above $10

23  million.

24         (4)  In addition to the attorney's fees for ordinary

25  services, the attorney for the personal representative shall

26  be allowed further reasonable compensation for any

27  extraordinary service.  What is an extraordinary service may

28  vary depending on many factors, including the size of the

29  estate. Extraordinary services may include, but are not

30  limited to:

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (a)  Involvement in a will contest, will construction,

  2  a proceeding for determination of beneficiaries, a contested

  3  claim, elective share proceeding, apportionment of estate

  4  taxes, or any other adversarial proceeding or litigation by or

  5  against the estate.

  6         (b)  Representation of the personal representative in

  7  audit or any proceeding for adjustment, determination, or

  8  collection of any taxes.

  9         (c)  Tax advice on postmortem tax planning, including,

10  but not limited to, disclaimer, renunciation of fiduciary

11  commission, alternate valuation date, allocation of

12  administrative expenses between tax returns, the QTIP or

13  reverse QTIP election, allocation of GST exemption,

14  qualification for Internal Revenue Code ss. 6166 and 303

15  privileges, deduction of last illness expenses, fiscal year

16  planning, distribution planning, asset basis considerations,

17  handling income or deductions in respect of a decedent,

18  valuation discounts, special use and other valuation, handling

19  employee benefit or retirement proceeds, prompt assessment

20  request, or request for release of personal liability for

21  payment of tax.

22         (d)  Review of estate tax return and preparation or

23  review of other tax returns required to be filed by the

24  personal representative.

25         (e)  Preparation of the estate's federal estate tax

26  return.  If this return is prepared by the attorney, a fee of

27  one-half of 1 percent up to a value of $10 million and

28  one-fourth of 1 percent on the value in excess of $10 million

29  of the gross estate as finally determined for federal estate

30  tax purposes, is presumed to be reasonable compensation for

31  the attorney for this service.  These fees shall include

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  services for routine audit of the return, not beyond the

  2  examining agent level, if required.

  3         (f)  Purchase, sale, lease, or encumbrance of real

  4  property by the personal representative or involvement in

  5  zoning, land use, environmental, or other similar matters.

  6         (g)  Legal advice regarding carrying on of the

  7  decedent's business or conducting other commercial activity by

  8  the personal representative.

  9         (h)  Legal advice regarding claims for damage to the

10  environment or related procedures.

11         (i)  Legal advice regarding homestead status of real

12  property or proceedings involving that status and services

13  related to protected homestead.

14         (j)  Involvement in fiduciary, employee, or attorney

15  compensation disputes.

16         (k)  Proceedings involving ancillary administration of

17  assets not subject to administration in this state.

18         (5)  Upon petition of any interested person, the court

19  may increase or decrease the compensation for ordinary

20  services of the attorney or award compensation for

21  extraordinary services if the facts and circumstances of the

22  particular administration warrant.  In determining reasonable

23  compensation, the court shall consider all of the following

24  factors, giving such weight to each as it determines may

25  determine to be appropriate:

26         (a)  The promptness, efficiency, and skill with which

27  the administration was handled by the attorney.

28         (b)  The responsibilities assumed by, and the potential

29  liabilities of, the attorney.

30         (c)  The nature and value of the assets that are

31  affected by the decedent's death.

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (d)  The benefits or detriments resulting to the estate

  2  or interested persons its beneficiaries from the attorney's

  3  services.

  4         (e)  The complexity or simplicity of the administration

  5  and the novelty of issues presented.

  6         (f)  The attorney's participation in tax planning for

  7  the estate and the estate's beneficiaries and tax return

  8  preparation, or review, or and approval.

  9         (g)  The nature of the probate, nonprobate, and exempt

10  assets, the expenses of administration, the and liabilities of

11  the decedent, and the compensation paid to other professionals

12  and fiduciaries.

13         (h)  Any delay in payment of the compensation after the

14  services were furnished.

15         (i)  Any other relevant factors.

16         (6)  The court may determine reasonable attorney's

17  compensation without receiving expert testimony.  Any party

18  may offer expert testimony after notice to interested persons.

19  If expert testimony is offered, an expert witness fee may be

20  awarded by the court and paid from the assets of the estate.

21  The court may, in its discretion, direct from what part of the

22  estate it shall be paid.

23         (6)(7)  If a separate written agreement regarding

24  compensation exists between the attorney and the decedent, the

25  attorney shall furnish a copy to the personal representative

26  prior to commencement of employment, and, if employed, shall

27  promptly file and serve a copy on all interested persons.

28  Neither a separate agreement nor a provision in the will

29  suggesting or directing that the personal representative to

30  retain a specific attorney will obligate the personal

31  representative to employ the attorney or obligate the attorney

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  to accept the representation, but if the attorney who is a

  2  party to the agreement or who drafted the will is employed,

  3  the compensation paid shall not exceed the compensation

  4  provided in the agreement or in the will.

  5         (8)  Court proceedings to determine compensation, if

  6  required, are a part of the estate administration process, and

  7  the costs, including fees for the personal representative's

  8  attorney, shall be determined by the court and paid from the

  9  assets of the estate unless the court finds the request for

10  attorney's fees to be substantially unreasonable. The court

11  shall direct from which part of the estate they shall be paid.

12         (9)  The amount and manner of determining compensation

13  for attorneys for personal representatives must be disclosed

14  in the final accounting, unless the disclosure is waived in

15  writing signed by the parties bearing the impact of the

16  compensation and filed with the court.  No such waiver shall

17  be valid unless it contains language declaring that the

18  waiving party has actual knowledge of the amount and manner of

19  determining such compensation and, in addition, expressly

20  acknowledging either one of the following two elements:

21         (a)  That the waiving party has agreed to the amount

22  and manner of determining such compensation and is waiving any

23  objections to payment of such compensation; or

24         (b)  That the waiving party has the right under

25  subsection (5) to petition the court to decrease such

26  compensation and is waiving that right.

27

28  The requirements of this subsection shall not apply if the

29  full amount of such compensation has previously been

30  determined by order of the court after notice.  A waiver of

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  the final accounting shall not be effective if it does not

  2  meet the requirements of this subsection.

  3         (10)  This section shall apply to estates in which an

  4  order of discharge has not been entered prior to its effective

  5  date but not to those estates in which attorney's fees have

  6  previously been determined by order of court after notice.

  7         Section 135.  Section 733.6175, Florida Statutes, is

  8  amended to read:

  9         733.6175  Proceedings for review of employment of

10  agents and compensation of personal representatives and

11  employees of estate.--

12         (1)  The court may review the propriety of the

13  employment of any person employed by the personal

14  representative and the reasonableness of any compensation paid

15  to that person or to the personal representative.

16         (2)  Court proceedings to determine reasonable

17  compensation of the personal representative or any person

18  employed by the personal representative, if required, are a

19  part of the estate administration process, and the costs,

20  including attorneys' fees, of the person assuming the burden

21  of proof of propriety of the employment and reasonableness of

22  the compensation shall be determined by the court and paid

23  from the assets of the estate unless the court finds the

24  requested compensation to be substantially unreasonable. The

25  court shall direct from which part of the estate the

26  compensation shall be paid.

27         (3)  After notice to all affected interested persons

28  and upon petition of an interested person bearing all or part

29  of the impact of the payment of compensation to the personal

30  representative or any person employed by him or her, the

31  propriety of such employment and the reasonableness of such

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  compensation or payment may be reviewed by the court. The

  2  burden of proof of propriety of the such employment and the

  3  reasonableness of the compensation shall be upon the personal

  4  representative and the person employed by him or her. Any

  5  person who is determined to have received excessive

  6  compensation from an estate for services rendered may be

  7  ordered to make appropriate refunds.

  8         (4)  The court may determine reasonable compensation

  9  for the personal representative or any person employed by the

10  personal representative without receiving expert testimony.

11  Any party may offer expert testimony after notice to

12  interested persons. If expert testimony is offered, a

13  reasonable expert witness fee shall be awarded by the court

14  and paid from the assets of the estate. The court shall direct

15  from what part of the estate the fee shall be paid.

16         Section 136.  Section 733.619, Florida Statutes, is

17  amended to read:

18         733.619  Individual liability of personal

19  representative.--

20         (1)  Unless otherwise provided in the contract, a

21  personal representative is not individually liable on a

22  contract, except a contract for attorney's fee, properly

23  entered into as in his or her fiduciary capacity in the

24  administration of the estate unless the personal

25  representative fails to reveal that his or her representative

26  capacity and identify the estate in the contract.

27         (2)  A personal representative is individually liable

28  for obligations arising from ownership or control of the

29  estate or for torts committed in the course of administration

30  of the estate only if he or she is personally at fault.

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (3)  Claims based on contracts, except a contract for

  2  attorney's fee, entered into by a personal representative as a

  3  fiduciary in his or her fiduciary capacity, on obligations

  4  arising from ownership or control of the estate, or on torts

  5  committed in the course of estate administration, may be

  6  asserted against the estate by proceeding against the personal

  7  representative in that his or her fiduciary capacity, whether

  8  or not the personal representative is individually liable

  9  therefor.

10         (4)  Issues of liability as between the estate and the

11  personal representative individually may be determined in a

12  proceeding for accounting, surcharge, or indemnification, or

13  other appropriate proceeding.

14         Section 137.  Section 733.701, Florida Statutes, is

15  amended to read:

16         733.701  Notifying creditors.--Unless creditors' claims

17  are otherwise barred by s. 733.710 the proceedings are under

18  chapter 734 or chapter 735, every personal representative

19  shall cause notice to creditors of administration to be

20  published and served under s. 733.2121 733.212.

21         Section 138.  Section 733.702, Florida Statutes, is

22  amended to read:

23         733.702  Limitations on presentation of claims.--

24         (1)  If not barred by s. 733.710, no claim or demand

25  against the decedent's estate that arose before the death of

26  the decedent, including claims of the state and any of its

27  subdivisions, even if the claims are unmatured, contingent,

28  whether due or not, direct or contingent, or liquidated or

29  unliquidated; no claim for funeral or burial expenses; no

30  claim for personal property in the possession of the personal

31  representative; and no claim for damages, including, but not

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  limited to, an action founded on fraud or another wrongful act

  2  or omission of the decedent, is binding on the estate, on the

  3  personal representative, or on any beneficiary unless filed in

  4  the probate proceeding within the later of 3 months after the

  5  time of the first publication of the notice to creditors of

  6  administration or, as to any creditor required to be served

  7  with a copy of the notice to creditors of administration, 30

  8  days after the date of service of such copy of the notice on

  9  the creditor, even though the personal representative has

10  recognized the claim or demand by paying a part of it or

11  interest on it or otherwise. The personal representative may

12  settle in full any claim without the necessity of the claim

13  being filed when the settlement has been approved by the

14  interested persons beneficiaries adversely affected according

15  to the priorities provided in this code and when the

16  settlement is made within the statutory time for filing

17  claims; or, within 3 months after the first publication of the

18  notice of administration, he or she may file a proof of claim

19  of all claims he or she has paid or intends to pay.

20         (2)  No cause of action heretofore or hereafter

21  accruing, including, but not limited to, an action founded

22  upon fraud or other wrongful act or omission, shall survive

23  the death of the person against whom the claim may be made,

24  whether or not an action is pending at the death of the person

25  or not, unless a the claim is filed within the time periods

26  set forth in this part.

27         (3)  Any claim not timely filed as provided in this

28  section is barred even though no objection to the claim is

29  filed on the grounds of timeliness or otherwise unless the

30  court extends the time in which the claim may be filed.  Such

31  An extension may be granted only upon grounds of fraud,

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  estoppel, or insufficient notice of the claims period.  No

  2  independent action or declaratory action may be brought upon a

  3  claim which was not timely filed unless such an extension has

  4  been granted by the court.  If the personal representative or

  5  any other interested person serves on the creditor a notice to

  6  file a petition for an extension or be forever barred, the

  7  creditor shall be limited to a period of 30 days from the date

  8  of service of the notice in which to file a petition for

  9  extension.

10         (4)  Nothing in this section affects or prevents:

11         (a)  A proceeding to enforce any mortgage, security

12  interest, or other lien on property of the decedent.

13         (b)  To the limits of casualty insurance protection

14  only, any proceeding to establish liability that of the

15  decedent or the personal representative for which he or she is

16  protected by the casualty insurance.

17         (c)  The filing of a claim by the Department of Revenue

18  subsequent to the expiration of the time for filing claims

19  provided in subsection (1), provided it does so file within 30

20  days after the service of the inventory by the personal

21  representative on the department or, in the event an amended

22  or supplementary inventory has been prepared, within 30 days

23  after the service of the amended or supplementary inventory by

24  the personal representative on the department.

25         (c)(d)  The filing of a cross-claim or counterclaim

26  against the estate in an action instituted by the estate;

27  however, no recovery on such a cross-claim or counterclaim

28  shall exceed the estate's recovery in that such an action.

29         (5)  The Department of Revenue may file a claim against

30  the estate of a decedent for taxes due under chapter 199 after

31  the expiration of the time for filing claims provided in

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  subsection (1), if the department files its claim within 30

  2  days after the service of the inventory.  Upon  filing of the

  3  estate tax return with the department as provided in s.

  4  198.13, or to the extent the inventory or estate tax return is

  5  amended or supplemented, the department has the right to file

  6  a claim or to amend its previously filed claim within 30 days

  7  after service of the estate tax return, or an amended or

  8  supplemented inventory or filing of an amended or supplemental

  9  estate tax return, as to the additional information disclosed.

10         (6)(5)  Nothing in this section shall extend the

11  limitations period set forth in s. 733.710.

12         Section 139.  Subsection (2) of section 733.703,

13  Florida Statutes, is amended to read:

14         733.703  Form and manner of presenting claim.--

15         (2)  Within the time allowed by s. 733.702, the

16  personal representative may file a proof of claim of all

17  claims he or she has paid or intends to pay. A claimant whose

18  claim is listed in a personal representative's proof of claim

19  filed within 3 months after the first publication of the

20  notice of administration shall be deemed to have filed a

21  statement of the claim listed.  Except as provided otherwise

22  in this part, the claim shall be treated for all other

23  purposes as if it had been filed by the claimant had filed it.

24         Section 140.  Section 733.704, Florida Statutes, is

25  amended to read:

26         733.704  Amendment of claims.--If a bona fide attempt

27  to file a claim is made by a creditor but the claim is

28  defective as to form, the court may permit the amendment of

29  the claim at any time.

30         Section 141.  Section 733.705, Florida Statutes, is

31  amended to read:

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    16-476-01                                           See HB 137




  1         733.705  Payment of and objection to claims.--

  2         (1)  The personal representative shall pay all claims

  3  within 1 year from the date of first publication of notice to

  4  creditors of administration, provided that the time shall be

  5  extended with respect to claims in litigation, unmatured

  6  claims, and contingent claims for the period necessary to

  7  dispose of those such claims pursuant to subsections (4), (5),

  8  (6), and (7), and (8).  The court may extend the time for

  9  payment of any claim upon a showing of good cause.  No

10  personal representative shall be compelled to pay the debts of

11  the decedent until after the expiration of 5 months from the

12  first publication of notice to creditors of administration.

13  If any person brings an action against a personal

14  representative within the 5 months on any claim to which the

15  personal representative has not filed an no objection, the

16  plaintiff shall not receive any costs or attorneys' fees if he

17  or she prevails, nor shall the judgment change the class of

18  the claim for payment under this code.

19         (2)  On or before the expiration of 4 months from the

20  first publication of notice to creditors of administration or

21  within 30 days from the timely filing or amendment of a claim,

22  whichever occurs later, a personal representative or other

23  interested person may file a written objection to a claim.  An

24  objection to a claim shall contain a statement that the

25  claimant is limited to a period of 30 days from the date of

26  service of the objection within which to bring an action on

27  the claim as provided in subsection (4).  The failure to

28  include such a statement in the objection shall not affect the

29  validity of the objection but may be considered as good cause

30  for extending the time for filing an action or proceeding

31  after the objection is filed.  If an objection is filed, the

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  person filing it shall serve a copy of the objection as

  2  provided by the Florida Probate Rules by registered or

  3  certified mail to the address of the claimant or the

  4  claimant's attorney as shown on the claim or by delivery to

  5  the claimant to whose claim the person objects or the

  6  claimant's attorney of record, if any, not later than 10 days

  7  after the objection has been filed, and also on the personal

  8  representative if the objection is filed by any interested

  9  person other than the personal representative.  The failure to

10  serve a copy of the objection constitutes an abandonment of

11  the objection. For good cause, the court may extend the time

12  for filing or serving an objection to any claim or may extend

13  the time for serving the objection.  The extension of time

14  shall be granted only after notice. Objection to a claim

15  constitutes an objection to an amendment of that claim unless

16  the objection is withdrawn.

17         (3)  If the objection is filed by a person other than

18  the personal representative, the personal representative may

19  apply to the court for an order relieving him or her of the

20  obligation to defend the estate in an independent action or

21  for the appointment of the objector as administrator ad litem

22  to defend the action. Fees for the attorney for the

23  administrator ad litem may be awarded as provided in s.

24  733.106(3). If costs or attorney's fees are awarded from or

25  against the estate, the probate court may charge or apportion

26  that award as provided in s. 733.106(4).

27         (4)(3)  An objection by an interested person to a

28  personal representative's proof of claim shall state the

29  particular item or items to which the interested person

30  objects and shall be filed and served as provided in

31  subsection (2). Issues of liability as between the estate and

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  the personal representative individually for items paid by the

  2  personal representative and thereafter listed in a personal

  3  representative's proof of claim shall be determined in the

  4  estate administration proceeding, in a proceeding for

  5  accounting or, surcharge, or in another other appropriate

  6  proceeding, whether or not an objection has been filed.  If an

  7  objection to an item listed as to be paid in a personal

  8  representative's proof of claim is filed and served, and the

  9  personal representative has not paid the item, the other

10  subsections of this section shall apply as if a claim for the

11  item had been filed by the claimant; but if the personal

12  representative has paid the claim after listing it as to be

13  paid, issues of liability as between the estate and the

14  personal representative individually shall be determined in

15  the manner provided for an item listed as paid.

16         (5)(4)  The claimant is limited to a period of 30 days

17  from the date of service of an objection within which to bring

18  an independent action upon the claim, or a declaratory action

19  to establish the validity and amount of an unmatured claim

20  which is not yet due but which is certain to become due in the

21  future, or a declaratory action to establish the validity of a

22  contingent claim upon which no cause of action has accrued on

23  the date of service of an objection and that may or may not

24  become due in the future, unless an extension of this time is

25  agreed to by the personal representative in writing before it

26  expires. For good cause, the court may extend the time for

27  filing an action or proceeding after objection is filed. The

28  extension of time shall be granted only after notice. No

29  action or proceeding on the claim may shall be brought against

30  the personal representative after the time limited above, and

31  the any such claim is thereafter forever barred without any

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    16-476-01                                           See HB 137




  1  court order. If an objection is filed to the claim of any

  2  creditor and an action is brought by the creditor brings an

  3  action to establish the his or her claim, a judgment

  4  establishing the claim shall give it no priority over claims

  5  of the same class to which it belongs.

  6         (6)(5)  A claimant may bring an independent action or

  7  declaratory action upon a claim which was not timely filed

  8  pursuant to s. 733.702(1) only if the claimant has been

  9  granted an extension of time to file the claim pursuant to s.

10  733.702(3).

11         (7)(6)  If an unmatured claim has not become due before

12  the time for distribution of an estate, the personal

13  representative may prepay the full amount of principal plus

14  accrued interest due on the claim, without discount and

15  without penalty, regardless of any prohibition against

16  prepayment or provision for penalty in any instrument on which

17  the claim is founded.  If the claim is not prepaid, no order

18  of discharge may be entered until the creditor and personal

19  representative have filed an agreement disposing of the claim,

20  or in the absence of an agreement until the court provides for

21  payment by one of the following methods:

22         (a)  Requiring the personal representative to reserve

23  such assets as the court determines to be adequate to pay the

24  claim when it becomes due; in fixing the amount to be

25  reserved, the court may determine the value of any security or

26  collateral to which the creditor may resort for payment of the

27  claim and may direct the reservation, if necessary, of

28  sufficient assets to pay the claim or to pay the difference

29  between the value of any security or collateral and the amount

30  necessary to pay the claim. If the estate is insolvent, the

31  court may direct a proportionate amount to be reserved.  The

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    16-476-01                                           See HB 137




  1  court shall direct that the amount reserved be retained by the

  2  personal representative until the time that the claim becomes

  3  due, and that so much of the reserved amount as is not used

  4  for payment be distributed thereafter according to law;

  5         (b)  Requiring that the claim be adequately secured by

  6  a mortgage, pledge, bond, trust, guaranty, or other security,

  7  as may be determined by the court, the security to remain in

  8  effect until the time that the claim becomes due, and that so

  9  much of the security or collateral as is not needed for

10  payment be distributed thereafter according to law; or

11         (c)  Making provisions such other provision for the

12  disposition or satisfaction of the claim as are is equitable,

13  and in a manner so as not to delay unreasonably the closing of

14  the estate.

15         (8)(7)  If no cause of action has accrued on a

16  contingent claim before the time for distribution of an

17  estate, no order of discharge may be entered until the

18  creditor and the personal representative have filed an

19  agreement disposing of the claim or, in the absence of an such

20  agreement, until:

21         (a)  The court determines that the claim is adequately

22  secured or that it has no value,

23         (b)  Three months from the date on which a cause of

24  action accrues upon the claim, provided that no action on the

25  claim is then pending,

26         (c)  Five years from the date of first publication of

27  notice to creditors of administration, or

28         (d)  The court provides for payment of the claim upon

29  the happening of the contingency by one of the methods

30  described in paragraph (a), paragraph (b), or paragraph (c) of

31  subsection (7) (6),

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    16-476-01                                           See HB 137




  1

  2  whichever occurs first. No action or proceeding on the claim

  3  may be brought against the personal representative after the

  4  time limited above, and the claim is barred without court

  5  order. If an objection is filed to the claim of any creditor

  6  and the creditor brings an action to establish the claim, a

  7  judgment establishing the claim shall give it no priority over

  8  claims of the same class to which it belongs No action or

  9  proceeding may be brought against the personal representative

10  on the claim after the time limited above, and any such claim

11  shall thereafter be forever barred without order of court.  If

12  an action is brought within the time limited above, a judgment

13  establishing the claim shall give it no priority over claims

14  of the same class to which it belongs.

15         (9)(8)  No interest shall be paid by the personal

16  representative or allowed by the court on a claim until the

17  expiration of 5 calendar months from the first publication of

18  the notice of administration, unless the claim is founded on a

19  written obligation of the decedent providing for the payment

20  of interest. Interest shall be paid by the personal

21  representative on written obligations of the decedent

22  providing for the payment of interest. On all other claims,

23  interest shall be allowed and paid beginning 5 months from the

24  first publication of the notice to creditors of

25  administration.

26         (10)(9)  The court may determine all issues concerning

27  claims or matters not requiring trial by jury.

28         (11)(10)  An order for extension of time authorized

29  under this section may be entered only in the estate

30  administration proceeding.

31

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    16-476-01                                           See HB 137




  1         Section 142.  Section 733.707, Florida Statutes, is

  2  amended to read:

  3         733.707  Order of payment of expenses and

  4  obligations.--

  5         (1)  The personal representative shall pay the expenses

  6  of the administration and obligations of the decedent's estate

  7  in the following order:

  8         (a)  Class 1.--Costs, expenses of administration, and

  9  compensation of personal representatives and their attorneys'

10  fees and attorney's fees awarded under s. 733.106(3).

11         (b)  Class 2.--Reasonable funeral, interment, and grave

12  marker expenses, whether paid by a guardian under s.

13  744.441(16), the personal representative, or any other person,

14  not to exceed the aggregate of $6,000.

15         (c)  Class 3.--Debts and taxes with preference under

16  federal law, and claims pursuant to ss. 409.9101 and 414.28.

17         (d)  Class 4.--Reasonable and necessary medical and

18  hospital expenses of the last 60 days of the last illness of

19  the decedent, including compensation of persons attending the

20  decedent him or her.

21         (e)  Class 5.--Family allowance.

22         (f)  Class 6.--Arrearage from court-ordered child

23  support.

24         (g)  Class 7.--Debts acquired after death by the

25  continuation of the decedent's business, in accordance with s.

26  733.612(22), but only to the extent of the assets of that

27  business.

28         (h)  Class 8.--All other claims, including those

29  founded on judgments or decrees rendered against the decedent

30  during the decedent's lifetime, and any excess over the sums

31  allowed in paragraphs (b) and (d).

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    16-476-01                                           See HB 137




  1         (2)  After paying any preceding class, if the estate is

  2  insufficient to pay all of the next succeeding class, the

  3  creditors of the latter class shall be paid ratably in

  4  proportion to their respective claims.

  5         (3)  Any portion of a trust with respect to which a

  6  decedent who is the grantor has at the decedent's death a

  7  right of revocation, as defined in paragraph (e), either alone

  8  or in conjunction with any other person, is liable for the

  9  expenses of the administration and obligations of the

10  decedent's estate and enforceable claims of the decedent's

11  creditors to the extent the decedent's estate is insufficient

12  to pay them as provided in s. 733.607(2).

13         (a)  For purposes of this subsection, any trusts

14  established as part of, and all payments from, either an

15  employee annuity described in s. 403 of the Internal Revenue

16  Code of 1986, as amended, an Individual Retirement Account, as

17  described in s. 408 of the Internal Revenue Code of 1986, as

18  amended, a Keogh (HR-10) Plan, or a retirement or other plan

19  established by a corporation which is qualified under s. 401

20  of the Internal Revenue Code of 1986, as amended, shall not be

21  considered a trust over which the decedent has a right of

22  revocation.

23         (b)  For purposes of this subsection, any trust

24  described in s. 664 of the Internal Revenue Code of 1986, as

25  amended, shall not be considered a trust over which the

26  decedent has a right of revocation.

27         (c)  This subsection shall not impair any rights an

28  individual has under a qualified domestic relations order as

29  that term is defined in s. 414(p) of the Internal Revenue Code

30  of 1986, as amended.

31

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    16-476-01                                           See HB 137




  1         (d)  For purposes of this subsection, property held or

  2  received by a trust to the extent that the property would not

  3  have been subject to claims against the decedent's estate if

  4  it had been paid directly to a trust created under the

  5  decedent's will or other than to the decedent's estate, or

  6  assets received from any trust other than a trust described in

  7  this subsection, shall not be deemed assets of the trust

  8  available to for the payment of the expenses of administration

  9  of and enforceable claims against the decedent's estate.

10         (e)  For purposes of this subsection, a "right of

11  revocation" is a power retained by the decedent, held in any

12  capacity, to:

13         1.  Amend or revoke the trust and revest the principal

14  of the trust in the decedent; or

15         2.  Withdraw or appoint the principal of the trust to

16  or for the decedent's benefit.

17         Section 143.  Section 733.708, Florida Statutes, is

18  amended to read:

19         733.708  Compromise.--When a proposal is made to

20  compromise any claim, whether in suit or not, by or against

21  the estate of a decedent or to compromise any question

22  concerning the distribution of a decedent's estate, the court

23  may enter an order authorizing the compromise if satisfied

24  that the compromise will be for the best interest of the

25  interested persons beneficiaries.  The order shall relieve the

26  personal representative of liability or responsibility for the

27  compromise. Claims against the estate may not be compromised

28  until after the time for filing objections to claims has

29  expired.  Notice must be given to those who have filed

30  objection to the claim proposed to be compromised.

31

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    16-476-01                                           See HB 137




  1         Section 144.  Subsection (1) of section 733.710,

  2  Florida Statutes, is amended to read:

  3         733.710  Limitations on claims against estates.--

  4         (1)  Notwithstanding any other provision of the code, 2

  5  years after the death of a person, neither the decedent's

  6  estate, the personal representative, (if any), nor the

  7  beneficiaries shall be liable for any claim or cause of action

  8  against the decedent, whether or not letters of administration

  9  have been issued, except as provided in this section.

10         Section 145.  Section 733.801, Florida Statutes, is

11  amended to read:

12         733.801  Delivery of devises and distributive shares.--

13         (1)  No personal representative shall be required to

14  pay or deliver any devise or distributive share or to

15  surrender possession of any land to any beneficiary until the

16  expiration of 5 months from the granting of letters.

17         (2)  Except as otherwise provided in the will, the

18  personal representative shall pay as an expense of

19  administration the reasonable expenses of storage, insurance,

20  packing, and delivery of tangible personal property to a

21  beneficiary.

22         Section 146.  Subsections (1) and (2) of section

23  733.802, Florida Statutes, are amended to read:

24         733.802  Proceedings for compulsory payment of devises

25  or distributive interest.--

26         (1)  Before final distribution, no personal

27  representative shall be compelled:

28         (a)  To pay a devise in money before the final

29  settlement of the personal representative's his or her

30  accounts,

31

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    16-476-01                                           See HB 137




  1         (b)  To deliver specific personal property devised that

  2  may have come into his or her hands, unless the personal

  3  property is exempt personal property,

  4         (c)  To pay all or any part of a distributive share in

  5  the personal estate of a decedent, or

  6         (d)  To surrender land to any beneficiary,

  7

  8  unless the beneficiary establishes files a petition setting

  9  forth the facts that entitle him or her to relief and stating

10  that the property will not be required for the payment of

11  debts, family allowance, estate and inheritance taxes, claims,

12  elective share of the surviving spouse, charges, or expenses

13  of administration or to provide for providing funds for

14  contribution or to enforce enforcing equalization in case of

15  advancements.

16         (2)  An order directing the surrender of real property

17  or the delivery of personal property by the personal

18  representative to the beneficiary shall describe the property

19  to be surrendered or delivered.  The order shall be conclusive

20  in favor of bona fide purchasers for value from the

21  beneficiary or distributee as against the personal

22  representative and all other persons claiming by, through,

23  under, or against the decedent or the decedent's estate.

24         Section 147.  Section 733.803, Florida Statutes, is

25  amended to read:

26         733.803  Encumbered property; liability for

27  payment.--The specific devisee of any encumbered property

28  shall be entitled to have the encumbrance on devised property

29  paid at the expense of the residue of the estate only when the

30  will shows that such an intent.  A general direction in the

31  will to pay debts does not show that such an intent.

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    16-476-01                                           See HB 137




  1         Section 148.  Section 733.805, Florida Statutes, is

  2  amended to read:

  3         733.805  Order in which assets abate are

  4  appropriated.--

  5         (1)  If a testator makes provision by his or her will,

  6  or designates the Funds or property designated by the will

  7  shall to be used, to pay for the payment of debts, estate and

  8  inheritance taxes, family allowance, exempt property, elective

  9  share charges, expenses of administration, and devises, to the

10  extent the funds or property are they shall be paid out of the

11  funds or from the property or proceeds as provided by the will

12  so far as sufficient.  If no provision is made or the

13  designated any fund or property designated, or if it is

14  insufficient, the funds and property of the estate shall be

15  used for these such purposes, except as otherwise provided in

16  s. 733.817 with respect to estate, inheritance, and other

17  death taxes, and to raise the shares of a pretermitted spouse

18  and children, except as otherwise provided in subsections (3)

19  and (4), in the following order:

20         (a)  Property passing by intestacy not disposed of by

21  the will.

22         (b)  Property devised to the residuary devisee or

23  devisees.

24         (c)  Property not specifically or demonstratively

25  devised.

26         (d)  Property specifically or demonstratively devised.

27         (2)  Demonstrative devises shall be classed as general

28  devises upon the failure or insufficiency of funds or property

29  out of which payment should be made, to the extent of the

30  insufficiency.  Devises to the decedent's surviving spouse,

31  given in satisfaction of, or instead of, the surviving

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    16-476-01                                           See HB 137




  1  spouse's statutory rights in the estate, shall not abate until

  2  other devises of the same class are exhausted.  Devises given

  3  for a valuable consideration shall abate with other devises of

  4  the same class only to the extent of the excess over the

  5  amount of value of the consideration until all others of the

  6  same class are exhausted. Except as herein provided, devises

  7  shall abate equally and ratably and without preference or

  8  priority as between real and personal property.  When property

  9  that has been specifically devised or charged with a devise is

10  sold or used taken by the personal representative, other

11  devisees shall contribute according to their respective

12  interests to the devisee whose devise has been sold or used

13  taken., and before distribution the court shall determine The

14  amounts of the respective contributions shall be determined by

15  the court, and they shall be paid or withheld before

16  distribution is made.

17         (3)  Section 733.817 shall be applied before this

18  section is applied.

19         (4)  In determining the contribution required under s.

20  733.607(2), subsections (1)-(3) of this section and s.

21  737.3054(2) shall be applied as if the beneficiaries of the

22  estate and the beneficiaries of a trust described in s.

23  733.707(3), other than the estate or trust itself, were taking

24  under a common instrument.

25         Section 149.  Section 733.806, Florida Statutes, is

26  amended to read:

27         733.806  Advancement.--If a person dies intestate as to

28  all his or her estate, property that the decedent gave during

29  in his or her lifetime to an heir is treated as an advancement

30  against the heir's latter's share of the estate only if

31  declared in a contemporaneous writing by the decedent or

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    16-476-01                                           See HB 137




  1  acknowledged in writing by the heir. The property advanced

  2  shall be valued at the time the heir came into possession or

  3  enjoyment of the property or at the time of the death of the

  4  decedent, whichever first occurs. If the recipient of the

  5  property does not survive the decedent, the property shall not

  6  be taken into account in computing the intestate share to be

  7  received by the recipient's descendants unless the declaration

  8  or acknowledgment provides otherwise.

  9         Section 150.  Subsections (3), (4), (5), and (6) of

10  section 733.808, Florida Statutes, are amended to read:

11         733.808  Death benefits; disposition of proceeds.--

12         (3)  In the event no trustee makes proper claim to the

13  proceeds from the insurance company or other obligor within a

14  period of 6 months after the date of the death of the insured,

15  employee, or annuitant, or if satisfactory evidence is

16  furnished to the insurance company or such obligor within that

17  period that there is, or will be, no trustee to receive the

18  proceeds, payment shall be made by the insurance company or

19  obligor to the personal representative of the person making

20  the such designation, unless otherwise provided by agreement

21  with the insurer or other obligor during the lifetime of the

22  insured, employee, or annuitant.

23         (4)  Death benefits payable as provided in subsection

24  (1), subsection (2), or subsection (3), unless paid to a

25  personal representative under the provisions of subsection

26  (3), shall not be deemed to be part of the decedent's estate

27  of the testator or an intestate estate, and shall not be

28  subject to any obligation to pay the expenses of the

29  administration and obligations of the decedent's estate or for

30  contribution required from a trust under s. 733.607(2)

31  transfer or estate taxes, debts, or other charges enforceable

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    16-476-01                                           See HB 137




  1  against the estate to any greater extent than if the such

  2  proceeds were payable directly to the beneficiaries named in

  3  the trust.

  4         (5)  The death benefits so held in trust may be

  5  commingled with any other assets that may properly come into

  6  the trust.

  7         (6)  Nothing in this section shall affect the validity

  8  of any designation of a beneficiary of proceeds previously

  9  heretofore made that designates as beneficiary the trustee of

10  any trust established under a trust agreement or declaration

11  of trust or by will.

12         Section 151.  Section 733.809, Florida Statutes, is

13  amended to read:

14         733.809  Right of retainer.--The amount of a

15  noncontingent indebtedness due from of a beneficiary to the

16  estate, if due, or its present value, if not due, may be

17  offset against that the beneficiary's interest. However, that,

18  but the beneficiary shall have has the benefit of any defense

19  that would be available to him or her in a direct proceeding

20  for recovery of the debt.

21         Section 152.  Section 733.810, Florida Statutes, is

22  amended to read:

23         733.810  Distribution in kind; valuation.--

24         (1)  Assets shall be distributed in kind unless:

25         (a)  A general power of sale is conferred;

26         (b)  A contrary intention is indicated by the will or

27  trust; or

28         (c)  Disposition is made otherwise under the provisions

29  of this code. Unless a general power of sale is conferred or a

30  contrary intention is indicated by the will or unless assets

31  are otherwise disposed of under the provisions of this code,

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  1  the distributable assets of a decedent's estate shall be

  2  distributed in kind through application of the following

  3  provisions:

  4         (2)(a)  Any pecuniary devise, family allowance, or

  5  other pecuniary share of the estate or trust or devise payable

  6  in money may be satisfied by value in kind if:

  7         (a)1.  The person entitled to the payment has not

  8  demanded cash;

  9         (b)2.  The property is distributed in kind is valued at

10  fair market value as of the date of its distribution date; and

11         (c)3.  No residuary devisee has requested that the

12  asset remain a part of the residuary residue of the estate.

13         (3)(b)  When it is not practicable to distribute

14  undivided interests in a residuary asset property, the asset

15  may property shall be sold converted into cash for

16  distribution.

17         (4)(2)  When the personal representative, trustee, or

18  other fiduciary under a will or trust instrument is required

19  to, or has an option, to, satisfy a pecuniary devise or

20  transfer in trust, to, or for the benefit of, the surviving

21  spouse, with an in-kind distribution assets of the estate or

22  trust in kind, at values as finally determined for federal

23  estate tax purposes, the personal representative, trustee, or

24  other fiduciary shall, unless the governing will or trust

25  instrument otherwise provides, satisfy the devise or transfer

26  in trust by distribution of assets, including cash, fairly

27  representative of the appreciated or depreciated value of all

28  property available for that distribution in satisfaction of

29  the devise or transfer in trust, taking into consideration any

30  gains and losses realized from a prior the sale, prior to

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  distribution of the marital interest, of any property not

  2  devised specifically, generally, or demonstratively devised.

  3         (5)(3)  With the consent of all beneficiaries affected,

  4  A personal representative or a trustee is authorized to

  5  distribute any distributable assets, non-pro rata among the

  6  beneficiaries subject to the fiduciary's duty of impartiality

  7  entitled thereto.

  8         Section 153.  Section 733.811, Florida Statutes, is

  9  amended to read:

10         733.811  Distribution; right or title of

11  distributee.--If a distributee receives from a fiduciary an

12  instrument transferring assets in kind, payment in

13  distribution, or possession of specific property, the

14  distributee has succeeded to the estate's interest in the

15  assets as against all persons interested in the estate.

16  However, the fiduciary may recover the assets or their value

17  if the distribution was improper Proof that a distributee has

18  received an instrument transferring assets in kind or payment

19  in distribution or possession of specific property from a

20  personal representative is conclusive evidence that the

21  distributee has succeeded to the interest of the estate in the

22  distributed assets, as against all persons interested in the

23  estate, but the personal representative may recover the assets

24  or their value if the distribution was improper.

25         Section 154.  Section 733.812, Florida Statutes, is

26  amended to read:

27         733.812  Improper distribution or payment; liability of

28  distributee or payee.--Unless the distribution or payment no

29  longer can be questioned because of adjudication, estoppel, or

30  limitations, A distributee of property improperly distributed

31  or paid or a claimant who was paid improperly must paid, if he

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  or she has the property, is liable to return the assets or

  2  funds property improperly received, and the income from those

  3  assets or interest on the funds its income since distribution

  4  or payment, unless the distribution or payment cannot be

  5  questioned because of adjudication, estoppel, or limitations

  6  to the personal representative or to the beneficiaries

  7  entitled to it. If the distributee or claimant he or she does

  8  not have the property, its then he or she is liable to return

  9  the value of the property improperly received at the date of

10  disposition, and its income thereon, and gain received by the

11  distributee or claimant must be returned him or her.

12         Section 155.  Section 733.813, Florida Statutes, is

13  amended to read:

14         733.813  Purchasers from distributees protected.--If

15  property distributed in kind, or a security interest in that

16  property therein, is acquired by a purchaser or lender for

17  value from a distributee who has received an instrument of

18  distribution or possession from the personal representative,

19  the purchaser or lender takes title free of any claims of the

20  estate and incurs no personal liability to the estate, whether

21  or not the distribution was proper.  The To be protected under

22  this provision a purchaser or lender need not inquire whether

23  a personal representative acted properly in making the

24  distribution in kind.

25         Section 156.  Section 733.814, Florida Statutes, is

26  amended to read:

27         733.814  Partition for purpose of distribution.--When

28  two or more beneficiaries heirs or devisees are entitled to

29  distribution of undivided interests in any property, the

30  personal representative or any beneficiary one or more of the

31  beneficiaries may petition the court before closing the estate

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  is closed to make partition.  After formal notice to the

  2  interested beneficiaries, the court shall partition the

  3  property in the same manner as provided by law for civil

  4  actions of partition.  The court may direct the personal

  5  representative to sell any property that cannot be partitioned

  6  without prejudice to the owners and that cannot be allotted

  7  equitably and conveniently be allotted to any one party.

  8         Section 157.  Section 733.815, Florida Statutes, is

  9  amended to read:

10         733.815  Private contracts agreements among interested

11  persons distributees.--Subject to the rights of creditors and

12  taxing authorities, competent interested persons may agree

13  among themselves to alter the interests, shares, or amounts to

14  which they are entitled under the will or under the laws of

15  intestacy in a written contract executed by them all who are

16  affected. The personal representative shall abide by the terms

17  of the contract agreement, subject to the personal

18  representative's his or her obligation to administer the

19  estate for the benefit of interested persons who are not

20  parties to the contract, and creditors, to pay all taxes and

21  costs of administration, and to carry out the responsibilities

22  of his or her office for the benefit of any beneficiaries of

23  the decedent who are not parties to the agreement. Personal

24  representatives are not required to see to the performance of

25  trusts if the trustee is another person who is willing to

26  accept the trust. Trustees of a testamentary trust are

27  interested persons beneficiaries for the purposes of this

28  section. Nothing in this section herein relieves trustees of

29  any duties owed to beneficiaries of trusts.

30         Section 158.  Section 733.816, Florida Statutes, is

31  amended to read:

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         733.816  Disposition of unclaimed property held by

  2  personal representatives.--

  3         (1)  In all cases in which there is unclaimed property

  4  in the hands of a personal representative that cannot be

  5  distributed or paid because of the inability to find the

  6  lawful owner because of inability to find him or her or

  7  because no lawful owner is known or because the lawful owner

  8  refuses to accept the property after a reasonable attempt to

  9  distribute it and after notice to that lawful owner, the court

10  shall order the personal representative to sell the property

11  and deposit the proceeds and cash already in hand, after

12  retaining those amounts provided for in subsection (4), with

13  the clerk and receive a receipt, and the clerk shall deposit

14  the funds in the registry of the court to be disposed of as

15  follows:

16         (a)  If the value of the funds is $500 or less, the

17  clerk shall post a notice for 30 days at the courthouse door

18  giving the amount involved, the name of the personal

19  representative, and the other pertinent information that will

20  put interested persons on notice.

21         (b)  If the value of the funds is over $500, the clerk

22  shall publish the notice once a month for 2 consecutive months

23  in a newspaper of general circulation in the county.

24

25  After the expiration of 6 months from the posting or first

26  publication, the clerk shall deposit the funds with the State

27  Treasurer after deducting the clerk's his or her fees and the

28  costs of publication.

29         (2)  Upon receipt of the funds, the State Treasurer

30  shall deposit them to the credit of the State School Fund, to

31  become a part of the school fund.  All interest and all income

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    16-476-01                                           See HB 137




  1  that may accrue from the money while so deposited shall belong

  2  to the fund.  The funds so deposited shall constitute and be a

  3  permanent appropriation for payments by the State Treasurer in

  4  obedience to court orders entered as provided by subsection

  5  (3).

  6         (3)  Within 10 years from the date of deposit with the

  7  State Treasurer, on written petition to the court that

  8  directed the deposit of the funds and informal notice to the

  9  Department of Legal Affairs, and after proof of entitlement

10  his or her right to them, any person entitled to the funds

11  before or after payment to the State Treasurer and deposit as

12  provided by subsection (1) may obtain a court an order of

13  court directing the payment of the funds to that person him or

14  her. All funds deposited with the State Treasurer and not

15  claimed within 10 years from the date of deposit shall escheat

16  to the state for the benefit of the State School Fund.

17         (4)  The personal representative depositing assets with

18  the clerk is permitted to retain from the funds in his or her

19  possession a sufficient amount to pay final costs of

20  administration chargeable to the assets, including fees

21  allowed pursuant to s. 733.617 accruing between the deposit of

22  the funds with the clerk of the court and the order of

23  discharge. Any funds so retained which are surplus shall be

24  deposited with the clerk prior to discharge of the personal

25  representative.

26         (5)(a)  If a person entitled to the funds assigns the

27  right his or her rights to receive payment or part payment to

28  an attorney or private investigative agency which is duly

29  licensed to do business in this state pursuant to a written

30  agreement with that such person, the Department of Banking and

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  Finance is authorized to make distribution in accordance with

  2  the such assignment.

  3         (b)  Payments made to an attorney or private

  4  investigative agency shall be promptly deposited into a trust

  5  or escrow account which is regularly maintained by the

  6  attorney or private investigative agency in a financial

  7  institution located in this state and authorized to accept

  8  these such deposits and located in this state.

  9         (c)  Distribution by the attorney or private

10  investigative agency to the person entitled to the funds shall

11  be made within 10 days following final credit of the deposit

12  into the trust or escrow account at the financial institution,

13  unless a party to the agreement protests the distribution in

14  writing such distribution before it is made.

15         (d)  The department shall not be civilly or criminally

16  liable for any funds distributed pursuant to this subsection,

17  provided the such distribution is made in good faith.

18         Section 159.  Subsections (1) and (2), paragraph (a) of

19  subsection (4), paragraph (c) of subsection (5), subsection

20  (6), paragraph (a) of subsection (7), and subsection (11) of

21  section 733.817, Florida Statutes, are amended to read:

22         733.817  Apportionment of estate taxes.--

23         (1)  For purposes of this section:

24         (a)  "Fiduciary" means a person other than the personal

25  representative in possession of property included in the

26  measure of the tax who is liable to the applicable taxing

27  authority for payment of the entire tax to the extent of the

28  value of the property in his or her possession.

29         (b)  "Governing instrument" means a will, trust

30  agreement, or any other document that controls the transfer of

31

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    16-476-01                                           See HB 137




  1  an asset on the occurrence of the event with respect to which

  2  the tax is being levied.

  3         (c)  "Gross estate" means the gross estate, as

  4  determined by the Internal Revenue Code with respect to the

  5  federal estate tax and the Florida estate tax, and as that

  6  such concept is otherwise determined by the estate,

  7  inheritance, or death tax laws of the particular state,

  8  country, or political subdivision whose tax is being

  9  apportioned.

10         (d)  "Included in the measure of the tax" means that

11  for each separate tax that an interest may incur, only

12  interests included in the measure of that particular tax are

13  considered. The term "included in the measure of the tax" does

14  not include any interest, whether passing under the will or

15  not, to the extent the interest is initially deductible from

16  the gross estate, without regard to any subsequent reduction

17  diminution of the deduction by reason of the charge of any

18  part of the applicable tax to the interest. The term "included

19  in the measure of the tax" does not include interests or

20  amounts that are not included in the gross estate but are

21  included in the amount upon which the applicable tax is

22  computed, such as adjusted taxable gifts with respect to the

23  federal estate tax. If an election is required for

24  deductibility, an interest is not "initially deductible"

25  unless the election for deductibility is allowed.

26         (e)  "Internal Revenue Code" means the Internal Revenue

27  Code of 1986, as amended from time to time.

28         (f)  "Net tax" means the net tax payable to the

29  particular state, country, or political subdivision whose tax

30  is being apportioned, after taking into account all credits

31  against the applicable tax except as provided in this section.

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    16-476-01                                           See HB 137




  1  With respect to the federal estate tax, "net tax" is

  2  determined after taking into account all credits against the

  3  tax except for the credit for foreign death taxes.

  4         (g)  "Nonresiduary devise" means any devise that is not

  5  a residuary devise.

  6         (h)  "Nonresiduary interest" in connection with a trust

  7  means any interest in a trust which is not a residuary

  8  interest.

  9         (i)  "Recipient" means, with respect to property or an

10  interest in property included in the gross estate, an heir at

11  law in an intestate estate, devisee in a testate estate,

12  beneficiary of a trust, beneficiary of an insurance policy,

13  annuity, or other contractual right, surviving tenant, taker

14  as a result of the exercise or in default of the exercise of a

15  general power of appointment, person who receives or is to

16  receive the property or an interest in the property, or person

17  in possession of the property, other than a creditor.

18         (j)  "Residuary devise" has the meaning set forth in s.

19  731.201(31)(30).

20         (k)  "Residuary interest," in connection with a trust,

21  means an interest in the assets of a trust which remain after

22  provision for any distribution that is to be satisfied by

23  reference to a specific property or type of property, fund,

24  sum, or statutory amount.

25         (l)  "Revocable trust" means a trust as described in s.

26  733.707(3) as defined in s. 731.201(33) created by the

27  decedent to the extent that the decedent had at his or her

28  death the power to alter, amend, or revoke the trust either

29  alone or in conjunction with any other person.

30

31

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    16-476-01                                           See HB 137




  1         (m)  "State" means any state, territory, or possession

  2  of the United States, the District of Columbia, and the

  3  Commonwealth of Puerto Rico.

  4         (n)  "Tax" means any estate tax, inheritance tax,

  5  generation skipping transfer tax, or other tax levied or

  6  assessed under the laws of this or any other state, the United

  7  States, any other country, or any political subdivision of the

  8  foregoing, as finally determined, which is imposed as a result

  9  of the death of the decedent, including, without limitation,

10  the tax assessed pursuant to s. 4980A of the Internal Revenue

11  Code. The term also includes any interest and penalties

12  imposed in addition to the tax.  Unless the context indicates

13  otherwise, the term "tax" means each separate tax.

14         (o)  "Temporary interest" means an interest in income

15  or an estate for a specific period of time or for life or for

16  some other period controlled by reference to extrinsic events,

17  whether or not in trust.

18         (p)  "Tentative Florida tax" with respect to any

19  property means the net Florida estate tax that would have been

20  attributable to that property if no tax were payable to any

21  other state in respect of that property.

22         (q)  "Value" means the pecuniary worth of the interest

23  involved as finally determined for purposes of the applicable

24  tax after deducting any debt, expense, or other deduction

25  chargeable to it for which a deduction was allowed in

26  determining the amount of the applicable tax. A lien or other

27  encumbrance is not regarded as chargeable to a particular

28  interest to the extent that it will be paid from other

29  interests. The value of an interest shall not be reduced by

30  reason of the charge against it of any part of the tax.

31

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (2)  An interest in protected homestead property shall

  2  be exempt from the apportionment of taxes if such interest

  3  passes to a person to whom inures the decedent's exemption

  4  from forced sale under the State Constitution.

  5         (4)(a)  Except as otherwise effectively directed by the

  6  governing instrument, if the Internal Revenue Code including,

  7  but not limited to, ss. 2032A(c)(5), 2206, 2207, 2207A, 2207B,

  8  and 2603, of the Internal Revenue Code applies to apportion

  9  federal tax against recipients of certain interests, all net

10  taxes, including taxes levied by the state attributable to

11  each type of interest, shall be apportioned against the

12  recipients of all interests of that type in the proportion

13  that the value of each interest of that type included in the

14  measure of the tax bears to the total of all interests of that

15  type included in the measure of the tax.

16         (5)  Except as provided above or as otherwise directed

17  by the governing instrument, the net tax attributable to each

18  interest shall be apportioned as follows:

19         (c)  The net tax attributable to an interest in

20  protected homestead property which is exempt from

21  apportionment pursuant to subsection (2) shall be apportioned

22  against the recipients of other interests in the estate or

23  passing under any revocable trust in the following order:

24         1.  Class I:  Recipients of interests not disposed of

25  by the decedent's will or revocable trust that which are

26  included in the measure of the federal estate tax.

27         2.  Class II:  Recipients of residuary devises and

28  residuary interests that are included in the measure of the

29  federal estate tax.

30         3.  Class III:  Recipients of nonresiduary devises and

31  nonresiduary interests that are included in the measure of the

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  federal estate tax. The net tax apportioned to a class, if

  2  any, pursuant to this paragraph shall be apportioned among the

  3  recipients in the class in the proportion that the value of

  4  the interest of each bears to the total value of all interests

  5  included in that class.

  6         (6)  The personal representative or fiduciary shall not

  7  be required to transfer to a recipient any property in

  8  possession of the personal representative or fiduciary which

  9  he or she reasonably anticipated to anticipates may be

10  necessary for the payment of taxes. Further, the personal

11  representative or fiduciary shall not be required to transfer

12  any property in possession of the personal representative or

13  fiduciary to the recipient until the amount of the tax due

14  from the recipient is paid by the recipient. If property is

15  transferred before final apportionment of the tax, the

16  recipient shall provide a bond or other security for his or

17  her apportioned liability in the amount and form prescribed by

18  the personal representative or fiduciary.

19         (7)(a)  The personal representative may petition at any

20  time for an order of apportionment. If no administration has

21  been commenced at any time after 90 days from the decedent's

22  death any fiduciary may petition for an order of apportionment

23  in the court in which venue would be proper for administration

24  of the decedent's estate. Formal notice of the petition for

25  order of apportionment shall be given to all interested

26  persons. At any time after 6 months from the decedent's death,

27  any recipient may petition the such court for an order of

28  apportionment.

29         (11)  Nothing in this section shall limit the right of

30  any person who has paid more than the amount of the tax

31  apportionable to that such person, calculated as if all

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  apportioned amounts would be collected, to obtain contribution

  2  from those who have not paid the full amount of the tax

  3  apportionable to them, calculated as if all apportioned

  4  amounts would be collected, and that right is hereby

  5  conferred. In any action to enforce contribution, the court

  6  shall award taxable costs as in chancery actions, including

  7  reasonable attorney's fees.

  8         Section 160.  Section 733.901, Florida Statutes, is

  9  amended to read:

10         733.901  Distribution; Final discharge.--

11         (1)  After administration has been When a personal

12  representative has completed the personal representative shall

13  be discharged administration except for distribution, he or

14  she shall file a final accounting and a petition for discharge

15  that shall contain:

16         (a)  A complete report of all receipts and

17  disbursements since the date of the last annual accounting or,

18  if none, from the commencement of administration.

19         (b)  A statement that he or she has fully administered

20  the estate by making payment, settlement, or other disposition

21  of all claims and debts that were presented and the expenses

22  of administration.

23         (c)  The proposed distribution of the assets of the

24  estate.

25         (d)  Any prior distributions that have been made.

26         (e)  A statement that objections to this report or

27  proposed distribution of assets be filed within 30 days.

28

29  The final accounting and petition for discharge shall be filed

30  and served on all interested persons within 12 months after

31  issuance of letters for estates not required to file a federal

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  estate tax return, otherwise 12 months from the date the

  2  return is due, unless the time is extended by the court for

  3  cause shown after notice to interested persons.  The petition

  4  shall state the status of the estate and the reasons for the

  5  extension.

  6         (2)  If no objection to the accounting or petition for

  7  discharge has been filed within 30 days from the date of

  8  service of copies on interested persons, or if service has

  9  been waived, the personal representative may distribute the

10  estate according to the plan of distribution set forth in the

11  petition without a court order.  The assets shall be

12  distributed free from the claims of any interested person and,

13  upon receipt of evidence that the estate has been properly

14  distributed and that claims of creditors have been paid or

15  otherwise disposed of, the court shall enter an order

16  discharging the personal representative and releasing the

17  surety on any bond.

18         (3)  If an objection to the petition for discharge has

19  been filed within the time allowed, the court shall determine

20  the plan of distribution and, upon receipt of evidence that

21  the estate has been properly distributed and that claims of

22  creditors have been paid or otherwise disposed of, the court

23  shall enter an order discharging the personal representative

24  and releasing the surety on any bond.

25         (4)  The final accounting required under subsection (1)

26  may be waived upon a filing of a consent waiver with the

27  court, by all interested persons, acknowledging that they are

28  aware of their rights and that they waive the right to have a

29  final accounting.

30         (5)  The 30-day period contained in subsection (2) may

31  be waived upon written consent of all interested persons.

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    16-476-01                                           See HB 137




  1         (2)(6)  The discharge of the personal representative

  2  shall release the personal representative of the estate and

  3  shall bar any action against the personal representative, as

  4  such or individually, and the his or her surety.

  5         Section 161.  Section 733.903, Florida Statutes, is

  6  amended to read:

  7         733.903  Subsequent administration.--The final

  8  settlement of an estate and the discharge of the personal

  9  representative shall not prevent a revocation of the order of

10  discharge or the subsequent issuance of letters if other

11  property of the estate is discovered or if it becomes

12  necessary that further administration of the estate be had for

13  any cause. However, The order of discharge may not be revoked

14  under this section based upon the discovery of a will or later

15  will.

16         Section 162.  Subsections (3) and (4) of section

17  734.101, Florida Statutes, are amended to read:

18         734.101  Foreign personal representative.--

19         (3)  Debtors who have not received a written demand for

20  payment from a personal representative or curator appointed in

21  this state within 60 days after appointment of a personal

22  representative in any other state or country, and whose

23  property in Florida is subject to a mortgage or other lien

24  securing the debt held by the foreign personal representative,

25  may pay the foreign personal representative after the

26  expiration of 60 days from the date of his or her appointment

27  of the foreign personnel representative.  Thereafter, a

28  satisfaction of the mortgage or lien executed by the foreign

29  personal representative, with an authenticated copy of the his

30  or her letters or other evidence of authority attached, may be

31  recorded in the public records.  The satisfaction shall be an

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    16-476-01                                           See HB 137




  1  effective discharge of the mortgage or lien, irrespective of

  2  whether the debtor making payment had received a written

  3  demand before paying the debt.

  4         (4)  All persons indebted to the estate of a decedent,

  5  or having possession of personal property belonging to the

  6  estate, who have received no written demand from a personal

  7  representative or curator appointed in this state for payment

  8  of the debt or the delivery of the property are authorized to

  9  pay the debt or to deliver the personal property to the

10  foreign personal representative after the expiration of 60

11  days from the date of his or her appointment of the foreign

12  personnel representative.

13         Section 163.  Section 734.102, Florida Statutes, is

14  amended to read:

15         734.102  Ancillary administration.--

16         (1)  If a nonresident of this state dies leaving assets

17  in this state, credits due him or her from residents in this

18  state, or liens on property in this state, a personal

19  representative specifically designated in the decedent's will

20  to administer the Florida property shall be entitled to have

21  ancillary letters issued to him or her, if qualified to act in

22  Florida. Otherwise, the foreign personal representative of the

23  decedent's estate shall be entitled to have letters issued to

24  him or her, if qualified to act in Florida.  If the foreign

25  personal representative is not qualified to act in Florida and

26  the will names an alternate or successor who is qualified to

27  act in Florida, the alternate or successor shall be entitled

28  to have letters issued to him or her. Otherwise, those

29  entitled to a majority interest of the Florida property may

30  have letters issued to a personal representative selected by

31  them who is qualified to act in Florida.  If the decedent dies

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    16-476-01                                           See HB 137




  1  intestate and the foreign domiciliary personal representative

  2  is not qualified to act in Florida, the order of preference

  3  for appointment of a personal representative as prescribed in

  4  this code shall apply.  If ancillary letters are applied for

  5  by other than the domiciliary personal representative, prior

  6  notice shall be given to any domiciliary personal

  7  representative.

  8         (2)  Ancillary administration shall be commenced as

  9  provided by the Florida Probate Rules. To entitle the

10  applicant to ancillary letters, an authenticated copy of so

11  much of the domiciliary proceedings shall be filed as will

12  show either:

13         (a)  The will, petition for probate, order admitting

14  the will to probate, and letters, if there are such; or

15         (b)  The petition for letters and the letters.

16         (3)  On filing the authenticated copy of a probated

17  will, including any probated codicils, the court shall

18  determine If the will and any the codicils are executed as

19  required by the code, they shall be admitted to probate if

20  any, comply with s. 732.502(1) or s. 732.502(2).  If they

21  comply, the court shall admit the will and any codicils to

22  record.

23         (4)  The ancillary personal representative shall give

24  bond as do personal representatives generally.  All

25  proceedings for appointment and administration of the estate

26  shall be as similar to those in original administrations as

27  possible.

28         (5)  Unless creditors' claims are otherwise barred by

29  s. 733.710, the ancillary personal representative shall cause

30  a notice to creditors to be served and published according to

31  the requirements of chapter 733.  Claims not filed in

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  1  accordance with chapter 733 shall be barred as provided in s.

  2  733.702.

  3         (6)(5)  After the payment of all expenses of

  4  administration and claims against the estate, the court may

  5  order the remaining property held by the ancillary personal

  6  representative transferred to the foreign domiciliary personal

  7  representative or distributed to the beneficiaries heirs or

  8  devisees.

  9         (7)(6)  Ancillary personal representatives shall have

10  the same rights, powers, and authority as other personal

11  representatives in Florida to manage and settle estates; to

12  sell, lease, or mortgage local property; and to raise funds

13  for the payment of debts, claims, and devises in the

14  domiciliary jurisdiction.  No property shall be sold, leased,

15  or mortgaged to pay a debt or claim that is barred by any

16  statute of limitation or of nonclaim of this state.

17         Section 164.  Section 734.1025, Florida Statutes, is

18  amended to read:

19         734.1025  Nonresident decedent's testate estate with

20  property not exceeding $50,000 $25,000 in this state;

21  determination of claims.--

22         (1)  When a nonresident decedent dies testate and

23  leaves property subject to administration in this state the

24  gross value of which does not exceed $50,000 at the date of

25  death $25,000, the foreign domiciliary personal representative

26  of the estate may determine the question of claims in this

27  state before the expiration of 2 years after the decedent's

28  death may file the 2-year period provided in s. 733.710 by

29  filing in the circuit court of the county where any property

30  is located an authenticated transcript of so much of the

31  foreign domiciliary proceedings as will show the will and

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  1  beneficiaries of the estate, as provided in the Florida

  2  Probate Rules. The court shall admit the will and any codicils

  3  to probate if they comply with s. 732.502(1) or (2).:

  4         (a)  In a testate estate, the probated will and all

  5  probated codicils of the decedent; the order admitting them to

  6  record; the letters or their equivalent; and the part of the

  7  record showing the names of the devisees and heirs of the

  8  decedent or an affidavit of the domiciliary personal

  9  representative reciting that the names are not shown or not

10  fully disclosed by the domiciliary record and specifying the

11  names.  On presentation of the foregoing, the court shall

12  admit the will and any codicils to probate if they comply with

13  s. 732.502(1) or (2).

14         (b)  In an intestate estate, the authenticated copy of

15  letters of administration, or their equivalent, with the part

16  of the record showing the names of the heirs of the decedent

17  or an affidavit of the domiciliary personal representative

18  supplying the names, as provided in paragraph (a). On

19  presentation of the foregoing, the court shall order them

20  recorded.

21         (2)  After complying with the foregoing requirements,

22  The foreign domiciliary personal representative may shall

23  cause a notice to creditors to be served and published

24  according to the revelant requirements of chapter 733 s.

25  731.111, notifying all persons having claims or demands

26  against the estate to file them. Claims not filed in

27  accordance with chapter 733 shall be barred as provided in s.

28  733.702. If any claim is filed, a personal representative

29  shall be appointed as provided in the Florida Probate Rules.

30

31

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  1         (3)  The procedure for filing claims and objection to

  2  them and for suing on them shall be the same as for other

  3  estates, except as hereinafter provided.

  4         (4)  If no claims are filed against the estate within

  5  the time allowed, the court shall enter an order adjudging

  6  that notice to creditors has been duly given and proof thereof

  7  filed and that no claims have been filed against the estate or

  8  that all claims have been satisfied.

  9         (5)  If any claim is filed against the estate within

10  the time allowed, the court shall send to the domiciliary

11  personal representative a copy of the claim and a notice

12  setting a date for a hearing to appoint an ancillary personal

13  representative.  At the hearing, the court shall appoint an

14  ancillary personal representative according to the preferences

15  as provided in s. 733.301.

16         (6)  If an ancillary personal representative is

17  appointed pursuant to subsection (5), the procedure for

18  filing, objecting to, and suing on claims shall be the same as

19  for other estates, except that the ancillary personal

20  representative appointed shall have not fewer than 30 days

21  from the date of his or her appointment within which to object

22  to any claim filed.

23         (7)  The filing by domiciliary personal representatives

24  of portions of the domiciliary probate proceedings as

25  specified in this section, and the barring of claims of

26  creditors in such estates by the publication of notice to

27  creditors as set forth in this section, in all cases prior to

28  June 25, 1980, are hereby validated and confirmed.

29         Section 165.  Subsections (1) and (3) of section

30  734.104, Florida Statutes, are amended to read:

31

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  1         734.104  Foreign wills; admission to record; effect on

  2  title.--

  3         (1)  An authenticated copy of the will of a nonresident

  4  that devises real property in this state, or any right, title,

  5  or interest in the property, may be admitted to record in any

  6  county of this state where the property is located at any time

  7  after 2 years from the death of the decedent or at any time

  8  after the domiciliary personal representative has been

  9  discharged if there has been no proceeding to administer the

10  estate of the decedent in this state, provided:

11         (a)  The will was executed as required by Chapter 732

12  complies with s. 732.502 as to form and manner of execution;

13  and

14         (b)  The will has been admitted to probate in the

15  proper court of any other state, territory, or country.

16         (3)  If the court finds that the requirements of this

17  section have been met has been complied with, it shall enter

18  an order admitting the foreign will to record.

19         Section 166.  Section 734.201, Florida Statutes, is

20  amended to read:

21         734.201  Jurisdiction by act of foreign personal

22  representative.--A foreign personal representative submits

23  personally to the jurisdiction of the courts of this state in

24  any proceeding concerning the estate by:

25         (1)  Filing authenticated copies of the domiciliary

26  proceedings under s. 734.104; 734.103.

27         (2)  Receiving payment of money or taking delivery of

28  personal property, under s. 734.101; or.

29         (3)  Doing any act as a personal representative in this

30  state that would have given the state jurisdiction over that

31  person him or her as an individual.

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  1         Section 167.  Section 734.202, Florida Statutes, is

  2  amended to read:

  3         734.202  Jurisdiction by act of decedent.--In addition

  4  to jurisdiction conferred by s. 734.201, a foreign personal

  5  representative is subject to the jurisdiction of the courts of

  6  this state to the same extent that the his or her decedent was

  7  subject to jurisdiction immediately before death.

  8         Section 168.  Section 735.101, Florida Statutes, is

  9  repealed.

10         Section 169.  Section 735.103, Florida Statutes, is

11  repealed.

12         Section 170.  Section 735.107, Florida Statutes, is

13  repealed.

14         Section 171.  Subsection (2) of section 735.201,

15  Florida Statutes, is amended to read:

16         735.201  Summary administration; nature of

17  proceedings.--Summary administration may be had in the

18  administration of either a resident or nonresident decedent's

19  estate, when it appears:

20         (2)  That the value of the entire estate subject to

21  administration in this state, less the value of property

22  exempt from the claims of creditors, does not exceed $50,000

23  $25,000 or that the decedent has been dead for more than 2

24  years.

25         Section 172.  Section 735.203, Florida Statutes, is

26  amended to read:

27         735.203  Petition for summary administration.--

28         (1)  A petition for summary administration may be filed

29  by any beneficiary, heir at law, or person nominated as

30  personal representative in the decedent's will offered for

31

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  1  probate. and shall be signed and verified by: The petition

  2  must be signed and verified by

  3         (a)  the surviving spouse, if any, and any; the heirs

  4  at law or beneficiaries.

  5         (2)  If a person named in subsection (1) has died, is

  6  incapacitated, or is a minor, or has conveyed or transferred

  7  all interest in the property of the estate, then, as to that

  8  person, the petition must be signed and certified by:

  9         (a)  The personal representative, if any, of a deceased

10  person or, if none, the surviving spouse, if any, and the

11  beneficiaries; or

12         (b)  The guardian of an incapacitated person or a

13  minor.

14  The grantee or transferee of any of them is authorized to sign

15  and verify the petition instead of the beneficiary or

16  surviving spouse.

17         (3)  The joinder in, or consent to, a petition for

18  summary administration is not required of a beneficiary who

19  will receive full distributive share under the proposed

20  distribution.  Any beneficiary not joining or consenting shall

21  receive formal notice of the petition.  who are sui juris; and

22  the guardians of any heirs at law or beneficiaries who are not

23  sui juris; or

24         (b)  The persons described by s. 735.209.

25         (2)  A petition for summary administration shall

26  contain, in addition to the statements required by s.

27  733.202(2)(b) and (c), the following:

28         (a)  Facts showing that petitioners are entitled to

29  summary administration as provided in s. 735.201.

30

31

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  1         (b)  A complete list of the assets of the estate and

  2  their estimated value, together with those assets claimed to

  3  be exempt.

  4         (c)  A statement that the estate is not indebted or

  5  that provision for payment of debts has been made.

  6         (d)  A proposed schedule of distribution of all assets

  7  to those entitled thereto as surviving spouse, beneficiaries,

  8  or creditors.

  9         Section 173.  Section 735.206, Florida Statutes, is

10  amended to read:

11         735.206  Summary administration distribution.--

12         (1)  Upon the filing of the petition for summary

13  administration, the will, if any, shall be proved in

14  accordance with chapter 733 and be admitted to probate.

15         (2)  Prior to entry of the order of summary

16  administration, the petitioner shall make a diligent search

17  and reasonable inquiry for any known or reasonably

18  ascertainable creditors, serve a copy of the petition on those

19  creditors, and make provision for payment for those creditors

20  to the extent that assets are available.

21         (3)(2)  The court may enter After such hearing as the

22  court may require, an order of summary administration may be

23  entered allowing immediate distribution of the assets to the

24  persons entitled to them.

25         (4)(3)  The order of summary administration and

26  distribution so entered shall have the following effect:

27         (a)  Those to whom specified parts of the decedent's

28  estate, including exempt property, are assigned by the order

29  shall be entitled to receive and collect the parts and to have

30  the parts transferred to them.  They may maintain actions to

31  enforce the right.

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  1         (b)  Debtors of the decedent, those holding property of

  2  the decedent, and those with whom securities or other property

  3  of the decedent are registered are authorized and empowered to

  4  comply with the order by paying, delivering, or transferring

  5  to those specified in the order the parts of the decedent's

  6  estate assigned to them by the order, and the persons so

  7  paying, delivering, or transferring shall not be accountable

  8  to anyone else for the property.

  9         (c)  After the entry of the order, bona fide purchasers

10  for value from those to whom property of the decedent may be

11  assigned by the order shall take the property free of all

12  claims of creditors of the decedent and all rights of the

13  surviving spouse and all other beneficiaries heirs and

14  devisees.

15         (d)  Property of the decedent that is not exempt from

16  claims of creditors and that remains in the hands of those to

17  whom it may be assigned by the order shall continue to be

18  liable for claims against the decedent until barred as

19  provided in the code this law. Any known or reasonably

20  ascertainable creditor who did not receive notice and for whom

21  provision for payment was not made may enforce the claim and,

22  if the creditor prevails, shall be awarded reasonable

23  attorney's fees as an element of costs against those who

24  joined in the petition.

25         (e)  The recipients of the decedent's property under

26  petitioners for the order of summary administration shall be

27  personally liable for a pro rata share of all lawful claims

28  against the estate of the decedent, but only to the extent of

29  the value of the estate of the decedent actually received by

30  each recipient petitioner, exclusive of the property exempt

31

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  1  from claims of creditors under the constitution and statutes

  2  of Florida.

  3         (f)  After 2 years from the death of the decedent,

  4  neither the decedent's estate nor those to whom it may be

  5  assigned shall be liable for any claim against the decedent,

  6  unless proceedings have been taken for the enforcement of the

  7  claim.

  8         (g)  Any heir or devisee of the decedent who was

  9  lawfully entitled to share in the estate but who was not

10  included in the order of summary administration and

11  distribution may enforce all his or her rights in appropriate

12  proceedings against those who procured the order and, if when

13  successful, shall be awarded reasonable attorney's fees as an

14  element of costs.

15         Section 174.  Section 735.2063, Florida Statutes, is

16  amended to read:

17         735.2063  Notice to creditors.--

18         (1)  Any person who has obtained received an order of

19  summary administration may publish a notice to creditors

20  according to the relevant requirements of s. 733.2121 731.111,

21  notifying all persons having claims or demands against the

22  estate of the decedent that an order of summary administration

23  has been entered by the court. The Such notice shall will

24  specify the total cash value of the estate and the names and

25  addresses of those to whom it has been assigned by the such

26  order. Such notice, if published, shall be published once a

27  week for 2 consecutive weeks in a newspaper published in the

28  county where such order was entered, and proof of publication

29  of such notice shall be filed with the court.

30         (2)  If proof of publication of the such notice is

31  filed with the court, all claims and demands of creditors

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  1  against the estate of the decedent who are not known or are

  2  reasonably ascertainable shall be forever barred unless the

  3  such claims and demands are filed with the court within 3

  4  months after from the first publication of the such notice.

  5         Section 175.  Section 735.209, Florida Statutes, is

  6  repealed.

  7         Section 176.  Subsection (3) of section 735.301,

  8  Florida Statutes, is amended to read:

  9         735.301  Disposition without administration.--

10         (3)  Any person, firm, or corporation paying,

11  delivering, or transferring property under the authorization

12  shall be forever discharged from any liability thereon.

13         Section 177.  Section 735.302, Florida Statutes, is

14  amended to read:

15         735.302  Income tax refunds in certain cases.--

16         (1)  In any case when the United States Treasury

17  Department determines that an overpayment of federal income

18  tax exists and the person in whose favor the overpayment is

19  determined is dead at the time the overpayment of tax is to be

20  refunded, and irrespective of whether the decedent had filed a

21  joint and several or separate income tax return, the amount of

22  the overpayment, if not in excess of $2,500 $500, may be

23  refunded as follows:

24         (a)  Directly to the surviving spouse on his or her

25  verified application; or

26         (b)  If there is no surviving spouse, to one of the

27  decedent's children who is designated in a verified

28  application purporting to be executed by all of the decedent's

29  children over the age of 14 years.

30

31

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  1  In either event, the application must show that the decedent

  2  was not indebted, that provision has been made for the payment

  3  of the decedent's debts, or that the entire estate is exempt

  4  from the claims of creditors under the constitution and

  5  statutes of the state, and that no administration of the

  6  estate, including summary administration, has been initiated

  7  and that none is planned, to the knowledge of the applicant.

  8         (2)  If a refund is made to the surviving spouse or

  9  designated child pursuant to the application, the refund shall

10  operate as a complete discharge to the United States from

11  liability from any action, claim, or demand by any beneficiary

12  of the decedent or other person.  Nothing in This section

13  shall be construed as establishing the ownership or rights of

14  the payee any person in the refund so distributed.

15         Section 178.  Section 737.3054, Florida Statutes, is

16  amended to read:

17         737.3054  Trustee's duty to pay expenses and

18  obligations of grantor's settlor's estate.--

19         (1)  A trustee of a trust described in s. 733.707(3)

20  shall pay to the personal representative of a grantor's

21  settlor's estate any amounts that the personal representative

22  certifies in writing to the trustee are required to pay the

23  expenses of the administration and obligations of the

24  grantor's settlor's estate and the enforceable claims of the

25  settlor's creditors.  Payments made by a trustee, unless

26  otherwise provided in the trust instrument, must be charged as

27  expenses of the trust without a contribution from anyone.  The

28  interests interest of all beneficiaries of such a trust are

29  subject to the provisions of this subsection; however, the

30  payments must be made from assets or property or the proceeds

31  thereof, other than assets proscribed in s. 733.707(3), which

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    16-476-01                                           See HB 137




  1  are included in the grantor's settlor's gross estate for

  2  federal estate tax purposes.

  3         (2)  Unless a grantor settlor provides by will, or

  4  designates in a trust described in s. 733.707(3) the funds or

  5  property passing under the a trust described in s. 733.707(3)

  6  to be so used, the expenses of the administration and

  7  obligations of the grantor's settlor's estate and enforceable

  8  claims of the settlor's creditors must be paid from the trust

  9  in the following order:

10         (a)  Property of the residue of the trust remaining

11  after all distributions that are to be satisfied by reference

12  to a specific property or type of property, fund, or sum;

13         (b)  Property that is not to be distributed from

14  specified or identified property or a specified or identified

15  item of property; and

16         (c)  Property that is to be distributed from specified

17  or identified property or a specified or identified item of

18  property.

19         (3)  Trust distributions that are to be satisfied from

20  specified or identified property must be classed as

21  distributions to be satisfied from the general assets of the

22  trust and not otherwise disposed of in the trust instrument

23  upon the failure or insufficiency of funds or property from

24  which payment should be made, to the extent of the

25  insufficiency.  Trust distributions given for valuable

26  consideration abate with other distributions of the same class

27  only to the extent of the excess over the value of the

28  consideration until all others of the same class are

29  exhausted. Except as provided in this section, trust

30  distributions abate equally and ratably and without preference

31  or priority between real and personal property.  When a

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    16-476-01                                           See HB 137




  1  specified or identified item of property that has been

  2  designated for distribution in the trust instrument or that is

  3  charged with a distribution is sold or taken by the trustee,

  4  other beneficiaries shall contribute according to their

  5  respective interests to the beneficiary whose property has

  6  been sold or taken, and before distribution the trustee shall

  7  determine the amounts of the respective contributions, and

  8  they must be paid or withheld before distribution is made.

  9         (4)  The trustee shall pay the expenses of trust

10  administration, including compensation of trustees and their

11  attorneys, before and in preference to the expenses of the

12  administration and obligations of the grantor's settlor's

13  estate and enforceable claims of the settlor's creditors.

14         Section 179.  Section 737.306, Florida Statutes, is

15  amended to read:

16         737.306  Personal liability of trustee.--

17         (1)(a)  Unless otherwise provided in the contract, a

18  trustee is not personally liable on contracts, except

19  contracts for attorneys' fees, properly entered into in the

20  trustee's fiduciary capacity in the course of administration

21  of the trust estate unless the trustee he or she fails to

22  reveal that his or her representative capacity and identify

23  the trust estate in the contract.

24         (b)  A trustee is personally liable for obligations

25  arising from ownership or control of property of the trust

26  estate or for torts committed in the course of administration

27  of the trust estate only if the trustee is personally at

28  fault.

29         (c)  Claims based on contracts, except contracts for

30  attorneys' fees, entered into by a trustee in his or her

31  fiduciary capacity, on obligations arising from ownership or

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  1  control of the trust estate, or on torts committed in the

  2  course of trust administration may be asserted against the

  3  trust estate by proceeding against the trustee in the

  4  trustee's his or her fiduciary capacity, whether or not the

  5  trustee is personally liable.

  6         (2)  Issues of liability between the trust estate and

  7  the trustee individually may be determined in a proceeding for

  8  accounting, surcharge, or indemnification, or in any other

  9  appropriate proceeding.

10         (3)  A successor trustee is not personally liable for

11  any action taken or omitted to be taken by any prior trustee;

12  nor does any successor trustee have a duty to institute any

13  action against any prior trustee, or file any claim against

14  any prior trustee's estate, for any of the prior trustee's

15  acts or omissions as trustee under any of the following

16  circumstances:

17         (a)  The successor trustee succeeds a trustee who was

18  also the grantor of a trust that was revocable during the time

19  that the grantor served as trustee;

20         (b)  As to any beneficiary who has waived any

21  accounting required by s. 737.303, but only as to the periods

22  included in the such waiver;

23         (c)  As to any beneficiary who has released the

24  successor trustee from the such duty to institute any action

25  or file any claim;

26         (d)  As to any person who is not a beneficiary within

27  the meaning of s. 737.303(4)(b); or

28         (e)  As to any beneficiary described in s.

29  737.303(4)(b):

30         1.  If a super majority of the reasonably ascertainable

31  current income or principal beneficiaries described in s.

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  1  737.303(4)(b)1. and a super majority of the reasonably

  2  ascertainable remainder beneficiaries described in s.

  3  737.303(4)(b)2. have released the successor trustee;

  4         2.  If the beneficiary has not delivered a written

  5  request to the successor trustee to institute an action or

  6  file a claim against the prior trustee within 6 months after

  7  the date of the successor trustee's acceptance of the trust,

  8  if the successor trustee has notified the beneficiary in

  9  writing of its acceptance in accordance with s. 737.303(1) and

10  that such writing advises the beneficiary that, unless the

11  beneficiary delivers the such written request within 6 months

12  after the date of acceptance, the his or her right to proceed

13  against the successor trustee will be barred pursuant to this

14  section; or

15         3.  For any action or claim that the beneficiary is

16  barred from bringing against the prior trustee.

17         (4)(a)  Two years after the death of a settlor, neither

18  a trust described in s. 733.707(3) as established by the

19  settlor, the trustee of the trust, nor any beneficiary may be

20  held liable for any claim or cause of action against the

21  settlor by a creditor who seeks to recover from the trust,

22  trustee, or beneficiary.

23         (b)  This subsection does not apply to a creditor who

24  has timely filed a claim against the settlor's estate under s.

25  733.702 within 2 years after the settlor's death and whose

26  claim has not been paid or otherwise disposed of, even if the

27  settlor's estate proceedings have been closed or otherwise

28  completed.

29         (c)  This subsection does not affect the lien of a duly

30  recorded mortgage or security interest or the right to

31  foreclose and enforce the mortgage or lien.

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    16-476-01                                           See HB 137




  1         (f)(5)  For the purposes of this section, a super

  2  majority of beneficiaries means at least two-thirds in

  3  interest of the beneficiaries if the interests of the

  4  beneficiaries are reasonably ascertainable; otherwise, it

  5  means at least two-thirds in number of the beneficiaries. A

  6  release or waiver under this section may be exercised by a

  7  legal representative or natural guardian of the beneficiary

  8  without the filing of any proceeding or approval of any court.

  9  Nothing in this subsection (3) affects any liability of the

10  prior trustee or the right of the successor trustee or any

11  beneficiary to pursue an action or claim against the prior

12  trustee.

13         Section 180.  Section 737.3061, Florida Statutes, is

14  created to read:

15         737.3061 Limitations on actions against certain

16  trusts.--

17         (1)  After the death of a grantor, no creditor of the

18  grantor may bring, maintain, or continue any direct action

19  against a trust described in s. 733.707(3), the trustee of the

20  trust, or any beneficiary of the trust which is dependent on

21  the individual liability of the grantor.  Those claims and

22  causes of action against the grantor shall be presented and

23  enforced against the grantor's estate as provided in part VII

24  of chapter 733, and the personal representative of the

25  grantor's estate may obtain payment from the trustee of a

26  trust described in s. 733.707(3) as provided in ss.

27  733.607(2), 733.707(3), and 737.3054(1).

28         (2)  This section shall not preclude a direct action

29  against a trust described in s. 733.707(3), the trustee of the

30  trust, or a beneficiary of the trust which is not dependent on

31  the individual liability of the grantor.

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1         (3)  This section does not affect the lien of any duly

  2  recorded mortgage or security interest or the lien of any

  3  person in possession of personal property or the right to

  4  foreclose and enforce the mortgage or lien.

  5         Section 181.  Section 737.308, Florida Statutes, is

  6  amended to read:

  7         737.308  Notice of trust.--

  8         (1)  Upon the death of a settlor of a trust described

  9  in s. 733.707(3), the trustee must file a notice of trust with

10  the court of the county of the settlor's domicile and the

11  court having jurisdiction of the settlor's estate.

12         (2)  The notice of trust must contain the name of the

13  settlor, the settlor's date of death, the title of the trust,

14  if any, the date of the trust, and the name and address of the

15  trustee.

16         (3)  If the settlor's probate proceeding has been

17  commenced, the clerk must notify the trustee in writing of the

18  date of the commencement of the probate proceeding and the

19  file number.

20         (4)  The clerk shall file and index the notice of trust

21  in the same manner as a caveat, unless there exists a probate

22  proceeding for the settlor's estate in which case the notice

23  of trust must be filed in the probate proceeding and the clerk

24  shall send a copy to the personal representative.

25         (5)  The clerk shall send a copy of any caveat filed

26  regarding the settlor to the trustee, and the Notice of Trust

27  to any caveator, unless there is a probate proceeding pending

28  and the personal representative and the trustee are the same.

29         (6)  In any proceeding affecting the expenses of the

30  administration of the estate, or any claims described in s.

31  733.702(1), the trustee of a trust described in s. 733.707(3)

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  is an interested person in the administration of the grantor's

  2  estate.

  3         (6)(7)  Any proceeding affecting the expenses of the

  4  administration or obligations of the grantor's estate or any

  5  claims described in s. 733.702(1) prior to the trustee filing

  6  a notice of trust are binding upon the trustee.

  7         (7)(8)  The trustee's failure to file the notice of

  8  trust does not affect the trustee's obligation to pay expenses

  9  of administration and obligations of the grantor's estate

10  enforceable claims as provided in s. 733.607(2).

11         Section 182.  Section 215.965, Florida Statutes, is

12  amended to read:

13         215.965  Disbursement of state moneys.--Except as

14  provided in s. 17.076, s. 253.025(14), s. 259.041(18), s.

15  717.124(5), s. 732.107(5)(6), or s. 733.816(5), all moneys in

16  the State Treasury shall be disbursed by state warrant, drawn

17  by the Comptroller upon the State Treasury and payable to the

18  ultimate beneficiary. This authorization shall include

19  electronic disbursement.

20         Section 183.  Subsection (3) of section 660.46, Florida

21  Statutes, is amended to read:

22         660.46  Substitution of fiduciaries.--

23         (3)  Unless a waiver or consent shall be filed in the

24  proceedings as provided in subsection (4), the provisions of

25  s. 731.301(1)(a), (c), and (2)(d) shall apply with respect to

26  notice of the proceedings to all persons who are then

27  cofiduciaries with the original fiduciary, other than a person

28  joining as a petitioner in the proceedings; to all persons

29  named in the governing instrument as substitutes or successors

30  to the fiduciary capacity of the original fiduciary; to the

31  persons then living who are entitled under the governing

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  instrument to appoint a substitute or successor to act in the

  2  fiduciary capacity of the original fiduciary; to all vested

  3  beneficiaries of the fiduciary account; and to all then-living

  4  originators of the governing instrument. Unless a waiver or

  5  consent shall be filed in the proceedings as provided in

  6  subsection (4), the provisions of s. 731.301(2) shall apply

  7  with respect to notice to all contingent beneficiaries of the

  8  fiduciary account. Only the persons or classes of persons

  9  described in the foregoing provisions of this subsection shall

10  be deemed to be interested persons for the purposes of this

11  section and the proceedings and notices provided for in this

12  section; and the provisions of ss. 731.301(3) and

13  731.303(3)(4) and (4)(5), relating to notice requirements, the

14  effect of notice, and representation of interests, shall apply

15  to the proceedings provided for in this section.

16         Section 184.  Subsection (1) of section 737.111,

17  Florida Statutes, is amended to read:

18         737.111  Execution requirements for express trusts.--

19         (1)  The testamentary aspects of a trust defined in s.

20  731.201(34)(33), are invalid unless the trust instrument is

21  executed by the settlor with the formalities required for the

22  execution of a will.

23         Section 185.  In editing manuscript for the next

24  official version of the Florida Statutes, the Division of

25  Statutory Revision and Indexing is directed to:

26         (1)  Change the title of Part II of Chapter 732,

27  Florida Statutes, from "Elective Share of Surviving Spouse" to

28  "Elective Share of Surviving Spouse; Rights in Community

29  Property."

30         (2)  Change the title of Part III of Chapter 733,

31  Florida Statutes, from "Priority to Administer and

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    Florida Senate - 2001                                   SB 402
    16-476-01                                           See HB 137




  1  Qualifications of Personal Representative" to "Preference in

  2  Appointment and Qualifications of Personal Representative."

  3         (3)  Change the title of Part IV of Chapter 733,

  4  Florida Statutes, from "Appointment of Personal

  5  Representative; Bonds" to "Fiduciary Bonds."

  6         (4)  Change the title of Part V of Chapter 733, Florida

  7  Statutes, from "Curators; Successor Personal Representative;

  8  Removal" to "Curators; Resignation and Removal of Personal

  9  Representatives."

10         Section 186.  This act shall take effect January 1,

11  2002. The substantive rights of all persons which have vested

12  prior to January 1, 2002, shall be determined as provided in

13  former chapters 63, 215, 409, 660, and 731-737, Florida

14  Statutes, as they existed prior to January 1, 2002. The

15  procedures for the enforcement of substantive rights which

16  have vested prior to January 1, 2002, shall be as provided in

17  this act, except that any Family Administration filed before

18  January 1, 2002, may be completed as a Family Administration.

19

20            *****************************************

21                       LEGISLATIVE SUMMARY

22
      Revises the Florida Probate Code to clarify current
23    provisions and to provide consistency throughout the
      code. (See bill for details.)
24

25

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27

28

29

30

31

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