Senate Bill sb0402c1

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    Florida Senate - 2001                            CS for SB 402

    By the Committee on Judiciary and Senator Burt





    308-1518-01

  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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  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. 732.2035, F.S.; redefining

10         the term "decedent's ownership interest";

11         amending s. 732.2045, F.S.; adding protected

12         homestead property as an exclusion to the

13         elective estate; amending s. 732.2055, F.S.;

14         redefining the term "value" for purposes of

15         calculating the elective estate share; amending

16         s. 732.2075, F.S.; revising formula for payment

17         of elective share; amending s. 732.2085, F.S.;

18         adding a cross-reference; amending s. 732.2095,

19         F.S.; conforming a cross-reference; modifying

20         the formula for determining the fair market

21         value of assets regarding the elective share;

22         amending s. 732.2105, F.S.; revising the effect

23         of an elective share election on their estate

24         interests; amending s. 732.2125, F.S.; revising

25         provisions with respect to the right of

26         election; amending s. 732.2135, F.S.; revising

27         provisions with respect to time of election,

28         extensions, and withdrawal; amending s.

29         732.2145, F.S.; revising provisions with

30         respect to the order of contribution; amending

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

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  1         respect to the effective date of certain

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

  3         provisions with respect to rebuttable

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

  5         relating to disposition upon death; amending s.

  6         732.221, F.S.; revising provisions with respect

  7         to perfection of title of personal

  8         representative or beneficiary; amending s.

  9         732.222, F.S., relating to the purchaser for

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

11         revising provisions with respect to perfection

12         of title of surviving spouse; amending s.

13         732.302, F.S.; revising provisions with respect

14         to pretermitted children; amending s. 732.401,

15         F.S.; revising provisions with respect to

16         descent of homestead; amending s. 732.4015,

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

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

19         concerning homestead; amending s. 732.402,

20         F.S.; revising provisions with respect to

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

22         revising provisions with respect to family

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

24         provisions with respect to who may make a will;

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

26         with respect to execution of wills; amending s.

27         732.503, F.S.; revising provisions with respect

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

29         F.S.; revising provisions with respect to

30         revocation by writing; amending s. 732.507,

31         F.S.; revising provisions with respect to

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  1         effect of subsequent marriage, birth, or

  2         dissolution of marriage; amending s. 732.513,

  3         F.S.; revising provisions with respect to

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

  5         relating to vesting of devises; amending s.

  6         732.515, F.S.; revising provisions with respect

  7         to separate writing identifying devises of

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

  9         relating to rules of construction and

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

11         provisions with respect to the Simultaneous

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

13         provisions with respect to antilapse, deceased

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

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

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

17         to change in securities, accessions, and

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

19         relating to nonademption of specific devises in

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

21         providing for agreements concerning succession

22         executed by a nonresident under certain

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

24         revising provisions with respect to waiver of

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

26         revising provisions with respect to disclaimer

27         of interests in property passing by will or

28         intestate succession or under certain powers of

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

30         providing for provisions relating to

31         disposition of the body; amending s. 732.901,

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

  2         eliminating provisions with respect to willful

  3         failure to deposit the will; transferring and

  4         renumbering ss. 732.910, 732.911, 732.912,

  5         732.913, 732.914, 732.915, 732.916, 732.917,

  6         732.918, 732.9185, 732.919, 732.921, 732.9215,

  7         732.92155, 732.9216, and 732.922, F.S., to

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

  9         relating to the venue of probate proceedings;

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

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

12         revising provisions with respect to the

13         suspension of the statute of limitations in

14         favor of the personal representative; amending

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

16         respect to the determination of beneficiaries;

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

18         with respect to costs and attorney fees;

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

20         burden of proof in contests; amending s.

21         733.109, F.S.; revising provisions with respect

22         to the revocation of probate; amending s.

23         733.201, F.S., relating to proof of wills;

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

25         interested person may petition for

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

27         relating to when notice is required; amending

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

29         respect to the probate of a will written in a

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

31         relating to the probate of a notarial will;

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

  2         probate of a resident after foreign probate;

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

  4         requirements with respect to the establishment

  5         and probate of a lost or destroyed will;

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

  7         with respect to the discovery of a later will;

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

  9         requirements with respect to the estates of

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

11         revising provisions with respect to the notice

12         of administration and filing of objections;

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

14         notice to creditors and the filing of claims;

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

16         adjudication before issuance of letters;

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

18         will may not be construed until after it has

19         been admitted to probate; amending s. 733.301,

20         F.S.; revising provisions with respect to

21         preference in the appointment of the personal

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

23         revising provisions with respect to who may be

24         appointed personal representative; amending s.

25         733.305, F.S., relating to trust companies and

26         other corporations and associations; amending

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

28         respect to the effect of the appointment of a

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

30         succession of administration; amending s.

31         733.308, F.S., relating to the administrator ad

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

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

  3         F.S.; providing for when a personal

  4         representative is not qualified; repealing s.

  5         733.401, F.S., relating to the issuance of

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

  7         provisions with respect to the bond of a

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

  9         provisions with respect to the amount of the

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

11         the liability of the surety; amending s.

12         733.405, F.S.; revising provisions with respect

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

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

15         premium allowable as an expense of

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

17         revising provisions with respect to curators;

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

19         with respect to the resignation of the personal

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

21         providing for the appointment of a successor

22         upon the resignation of the personal

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

24         providing for the surrender of assets after

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

26         providing for accounting and discharge

27         following resignation; amending s. 733.504,

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

29         removal of the personal representative;

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

31         petition for removal shall be filed in the

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  1         court having jurisdiction of the

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

  3         revising provisions with respect to proceedings

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

  5         providing for the appointment of a successor

  6         upon removal of the personal representative;

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

  8         administration following resignation or

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

10         for accounting and discharge upon removal;

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

12         with respect to surrender of assets upon

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

14         provisions with respect to time of accrual of

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

16         relating to the general duties of a personal

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

18         relating to when a personal representative may

19         proceed without court order; amending s.

20         733.604, F.S.; revising provisions with respect

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

22         relating to appraisers; creating s. 733.6065,

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

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

25         revising provisions with respect to the

26         possession of the estate; amending s. 733.608,

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

28         general power of the personal representative;

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

30         with respect to improper exercise of power and

31         the breech of fiduciary duty; amending s.

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  1         733.610, F.S., relating to the sale,

  2         encumbrance, or transaction involving a

  3         conflict of interest; amending s. 733.611,

  4         F.S.; revising provisions with respect to

  5         persons dealing with the personal

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

  7         revising provisions with respect to

  8         transactions authorized for the personal

  9         representatives and exceptions thereto;

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

11         of the personal representative with respect to

12         environmental or human health laws affecting

13         property subject to administration; amending s.

14         733.613, F.S.; revising provisions with respect

15         to the personal representative's right to sell

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

17         relating to the powers and duties of a

18         successor personal representative; amending s.

19         733.615, F.S.; revising provisions with respect

20         to joint personal representatives; amending s.

21         733.616, F.S.; revising provisions with respect

22         to the powers of the surviving personal

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

24         revising provisions with respect to

25         compensation of the personal representative;

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

27         with respect to compensation of the attorney

28         for the personal representative; amending s.

29         733.6175, F.S.; revising provisions with

30         respect to proceedings for review of employment

31         of agents and compensation of personal

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  1         representatives and employees of the estate;

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

  3         individual liability of the personal

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

  5         revising provisions with respect to notifying

  6         creditors; conforming cross-references;

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

  8         with respect to limitations on presentation of

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

10         provisions with respect to the form and manner

11         of presenting a claim; amending s. 733.704,

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

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

14         respect to payment of and objection to claims;

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

16         with respect to the order of payment of

17         expenses and obligations; amending s. 733.708,

18         F.S.; revising provisions with respect to

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

20         to claims against estates; amending s. 733.801,

21         F.S.; providing that the personal

22         representative shall pay as an expense of

23         administration certain costs; amending s.

24         733.802, F.S.; revising provisions with respect

25         to proceedings for compulsory payment of

26         devises or distributive interest; amending s.

27         733.803, F.S., relating to encumbered property;

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

29         with respect to the order in which assets are

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

31         relating to advancement; amending s. 733.808,

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

  2         benefits and disposition of proceeds; amending

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

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

  5         provisions with respect to distribution in kind

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

  7         revising provisions with respect to the right

  8         or title of distributee; amending s. 733.812,

  9         F.S.; providing for improper distribution or

10         payment and liability of distributee; amending

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

12         purchaser from the distributee; amending s.

13         733.814, F.S.; revising provisions with respect

14         to partition for the purpose of distribution;

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

16         private contracts among certain interested

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

18         the distribution of unclaimed property held by

19         the personal representative; amending s.

20         733.817, F.S.; revising provisions with respect

21         to apportionment of estate taxes; amending s.

22         733.901, F.S.; providing requirements with

23         respect to final discharge; amending s.

24         733.903, F.S.; revising provisions with respect

25         to subsequent administration; amending s.

26         734.101, F.S., relating to the foreign personal

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

28         revising provisions with respect to ancillary

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

30         revising provisions with respect to the

31         nonresident decedent's testate estate with

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  1         property not exceeding a certain value in this

  2         state; providing for the determination of

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

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

  5         relating to jurisdiction by act of a foreign

  6         personal representative; amending s. 734.202,

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

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

  9         to family administration and the nature of the

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

11         relating to petition for family administration;

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

13         administration distribution; amending s.

14         735.201, F.S.; increasing a monetary amount

15         with respect to summary administration;

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

17         with respect to the petition for summary

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

19         revising provisions with respect to summary

20         administration distribution; amending s.

21         735.2063, F.S.; revising provisions with

22         respect to notice to creditors; repealing s.

23         735.209, F.S., relating to joinder of heirs,

24         devisees, or surviving spouse in summary

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

26         relating to disposition without administration;

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

28         with respect to income tax refunds in certain

29         circumstances; creating s. 737.208, F.S.;

30         prohibiting distribution pending outcome of

31         contest; providing exceptions; amending s.

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  1         737.3054, F.S.; revising provisions with

  2         respect to trustee's duty to pay expenses and

  3         obligations of grantor's estate; amending s.

  4         737.306, F.S.; revising provisions with respect

  5         to personal liability of trustee; creating s.

  6         737.3061, F.S.; providing for limitation on

  7         actions against certain trusts; amending s.

  8         737.308, F.S.; revising provisions with respect

  9         to notice of trust; amending ss. 215.965,

10         660.46, and 737.111, F.S.; conforming

11         cross-references; directing the Division of

12         Statutory Revision and Indexing to change the

13         title of certain parts of the Probate Code;

14         providing an effective date.

15  

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

17  

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

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

20         63.172  Effect of judgment of adoption.--

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

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

23  following effect:

24         (b)  It terminates all legal relationships between the

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

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

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

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

29  all purposes, including inheritance and the interpretation or

30  construction of documents, statutes, and instruments, whether

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

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

  2  designation not based on a parent and child or blood

  3  relationship, except that rights of inheritance shall be as

  4  provided in the Florida Probate Code.

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

  6  relationship between the adopted person and the petitioner and

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

  8  adopted person were a blood descendant of the petitioner born

  9  within wedlock. This relationship shall be created for all

10  purposes, including inheritance and applicability of statutes,

11  documents, and instruments, whether executed before or after

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

13  an adopted person from their operation or effect.

14         Section 2.  Section 409.9101, Florida Statutes, is

15  amended to read:

16         409.9101  Recovery for payments made on behalf of

17  Medicaid-eligible persons.--

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

19  Recovery Act."

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

21  section to supplement Medicaid funds that are used to provide

22  medical services to eligible persons. Medicaid estate recovery

23  shall generally be accomplished by the agency through the

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

25  estates of deceased Medicaid recipient recipients as provided

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

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

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

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

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

31  representative of the estate of the decedent shall serve the

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

  2  estate within 3 months after the first publication of the

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

  4  to this section.

  5         (3)(4)  The acceptance of public medical assistance, as

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

  7  including mandatory and optional supplemental payments under

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

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

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

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

12  of the recipient for medical assistance on behalf of the

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

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

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

16  the probate proceeding, the agency shall be an interested

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

18  estate claimants There is no claim under this section against

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

20         (4)(5)  At the time of filing the claim, The agency may

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

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

23  agency amounts based on medical claims submitted by providers

24  subsequent to the agency's initial claim calculation.

25         (5)(6)  The claim of the agency shall be the current

26  total allowable amount of Medicaid payments as denoted in the

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

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

29  processing system reports shall be admissible as prima facie

30  evidence in substantiating the agency's claim.

31  

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

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

  3  in s. 414.28(1).

  4         (6)(8)  The debt claim created under this section shall

  5  not be enforced if the recipient is survived by:

  6         (a)  A spouse;

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

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

  9  and totally disabled pursuant to the eligibility requirements

10  of Title XIX of the Social Security Act.

11         (7)(9)  In accordance with s. 4, Art. X of the State

12  Constitution, No debt claim under this section shall be

13  enforced against any property that is determined to be exempt

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

15  this state the homestead of the deceased Medicaid recipient

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

17  the deceased Medicaid recipient.

18         (8)(10)  The agency shall not recover from an estate if

19  doing so would cause undue hardship for a beneficiary the

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

21  representative of an estate and any beneficiary heir may

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

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

24  not exist solely because recovery will prevent any

25  beneficiaries heirs from receiving an anticipated inheritance.

26  The following criteria shall be considered by the agency in

27  reviewing a hardship request:

28         (a)  The beneficiary heir:

29         1.  Currently resides in the residence of the

30  decedent,;

31  

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

  2  decedent,;

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

  4  for the 12 months immediately preceding the death of the

  5  decedent,; and

  6         4.  Owns no other residence;

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

  8  clothing, shelter, or medical care necessary for the

  9  maintenance of life or health;

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

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

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

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

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

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

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

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

18         (9)(11)  Instances arise in Medicaid estate-recovery

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

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

21  be satisfied prior to including the settlement proceeds as

22  estate assets. The remaining settlement proceeds shall be

23  included in the estate and be available to satisfy the

24  Medicaid estate-recovery claim. The Medicaid estate-recovery

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

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

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

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

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

30  medical assistance provided to the recipient.

31  

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  1         (10)(12)  In instances where there are no liquid assets

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

  3  nonexempt personal property or nonhomestead real property

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

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

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

  7  transferred to the agency in any instance.

  8         (11)(13)  The agency is authorized to adopt rules to

  9  implement the provisions of this section.

10         Section 3.  Section 655.936, Florida Statutes, is

11  amended to read:

12         655.936  Delivery of safe-deposit box contents or

13  property held in safekeeping to personal representative.--

14         (1)  Subject to the provisions of subsection (3), the

15  lessor shall immediately deliver to a resident personal

16  representative, upon presentation of a certified copy of his

17  or her letters of authority, all property deposited with it by

18  the decedent for safekeeping, and shall grant the resident

19  personal representative access to any safe-deposit box in the

20  decedent's name and permit him or her to remove from such box

21  any part or all of the contents thereof.

22         (2)  If a foreign personal representative of a deceased

23  lessee has been appointed by a court of any other state, a

24  lessor may, at its discretion, after 3 months from the

25  issuance to such foreign personal representative of his or her

26  letters of authority, deliver to such foreign personal

27  representative all properties deposited with it for

28  safekeeping and the contents of any safe-deposit box in the

29  name of the decedent if at such time the lessor has not

30  received written notice of the appointment of a personal

31  representative in this state, and such delivery is a valid

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  1  discharge of the lessor for all property or contents so

  2  delivered. Such foreign personal representative shall furnish

  3  the lessor with an affidavit setting forth facts showing the

  4  domicile of the deceased lessee to be other than this state

  5  and stating that there are no unpaid creditors of the deceased

  6  lessee in this state, together with a certified copy of his or

  7  her letters of authority.  A lessor making delivery pursuant

  8  to this subsection shall maintain in its files a receipt

  9  executed by such foreign personal representative which

10  itemizes in detail all property so delivered.

11         (3)  Notwithstanding the provisions of subsection (1),

12  after the death of a lessee of a safe-deposit box, the lessor

13  shall permit the initial opening of the safe-deposit box and

14  the removal of the contents of the safe-deposit box in

15  accordance with s. 733.6065.

16         (4)(3)  A lessor is not liable for damages or penalty

17  by reason of any delivery made pursuant to this section.

18         (4)  Notwithstanding other provisions of this section,

19  the initial opening of any safe-deposit box of the decedent

20  must be conducted in the presence of an employee of the

21  institution where the box is located and the personal

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

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

24  personal representative, each of whom must verify the contents

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

26  representative shall file the safe-deposit box inventory with

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

28         Section 4.  Section 731.005, Florida Statutes, is

29  amended to read:

30  

31  

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  1         731.005  Short title.--Chapters 731-735 shall be known

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

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

  4         Section 5.  Section 731.011, Florida Statutes, is

  5  amended to read:

  6         731.011  Determination of substantive rights;

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

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

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

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

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

12  the enforcement of vested substantive rights that have vested

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

14  Probate Rules this code.

15         Section 6.  Section 731.104, Florida Statutes, is

16  amended to read:

17         731.104  Verification of documents.--When verification

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

19  document filed shall include an oath or affirmation as

20  provided in the Florida Probate Rules or the following

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

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

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

24  willfully includes include a false statement in the document

25  shall be guilty of perjury and upon conviction shall be

26  punished accordingly.

27         Section 7.  Section 731.106, Florida Statutes, is

28  amended to read:

29         731.106  Assets of nondomiciliaries.--

30         (1)  For purposes of aiding the determination

31  concerning location of assets that may be relevant in cases

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  1  involving nondomiciliaries, A debt in favor of a

  2  nondomiciliary, other than one evidenced by investment or

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

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

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

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

  7  other instruments are located where the instrument is at the

  8  time of death.

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

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

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

12  testamentary disposition of her or his tangible or intangible

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

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

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

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

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

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

19  direct the personal representative appointed in this state to

20  make distribution directly to those designated by the

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

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

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

24  the case may be.

25         Section 8.  Section 731.107, Florida Statutes, is

26  repealed.

27         Section 9.  Section 731.110, Florida Statutes, is

28  amended to read:

29         731.110  Caveat; proceedings.--

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

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

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  1  estate, either testate or intestate, will be administered

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

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

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

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

  6  court.

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

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

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

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

11  caveator in the estate, the name and specific residence

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

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

14  name and specific residence address of some person residing in

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

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

17  upon whom service may be made.

18         Section 10.  Section 731.111, Florida Statutes, is

19  repealed.

20         Section 11.  Section 731.201, Florida Statutes, is

21  amended to read:

22         731.201  General definitions.--Subject to additional

23  definitions in subsequent chapters that are applicable to

24  specific chapters or parts, and unless the context otherwise

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

26  738, and 744:

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

28  documents or judicial proceedings required to be filed with

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

30  copy authenticated according to the Federal Rules of Civil

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

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

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

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

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

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

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

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

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

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

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

11  beneficiary of the estate.

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

13  child under this code by intestate succession from the parent

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

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

16  remote descendant.

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

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

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

20  expense expenses of administration or estate, inheritance,

21  succession, or other death taxes.

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

23  court.

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

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

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

27  issued.

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

29  testamentary disposition of real or personal property and,

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

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

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

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

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

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

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

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

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

  8  beneficiaries of the trust are not devisees.

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

10  estate property from a personal representative or other

11  fiduciary other than as a creditor or purchaser. A

12  testamentary trustee is a distributee only to the extent of

13  distributed assets or increments to them remaining in the

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

15  trust to whom the trustee has distributed property received

16  from a personal representative is a distributee.  For purposes

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

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

19  devised assets.

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

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

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

23  the subject of administration.

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

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

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

27         (15)  "Foreign personal representative" means a

28  personal representative of another state or a foreign country.

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

30  Florida Probate Rules s. 731.301(1).

31  

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

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

  3  creates or adds to a trust.

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

  5  including the surviving spouse, who are entitled under the

  6  statutes of intestate succession to the property of a

  7  decedent.

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

  9  adjudicated incompetent.

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

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

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

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

14  particular proceeding involved.  In any proceeding affecting

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

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

17  interested person.  In any proceeding affecting the expenses

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

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

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

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

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

23  devisee who has received complete his or her distribution.

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

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

26  particular purpose of, and matter involved in, any

27  proceedings.

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

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

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

31  

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  1  testamentary and letters of administration. All letters shall

  2  be designated "letters of administration."

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

  4  States other than Florida and includes the District of

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

  6  or possession subject to the legislative authority of the

  7  United States.

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

  9  stepparent, foster parent, or grandparent.

10         (25)  "Personal representative" means the fiduciary

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

12  what has been known as an administrator, administrator cum

13  testamento annexo, administrator de bonis non, ancillary

14  administrator, ancillary executor, or executor.

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

16  for an order.

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

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

19  probate.

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

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

22  ownership.

23         (29)  "Protected homestead" means the property

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

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

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

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

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

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

30  dwelling. and is synonymous with "domicile."

31  

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  1         (31)(30)  "Residuary devise" means a devise of the

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

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

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

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

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

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

  8  means a devise of all assets remaining after satisfying the

  9  obligations of the estate.

10         (32)(31)  "Security" means a security as defined in s.

11  517.021.

12         (33)(32)  "Security interest" means a security interest

13  as defined in s. 671.201.

14         (34)(33)  "Trust" means an express trust, private or

15  charitable, with additions to it, wherever and however

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

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

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

19  constructive trusts, and it excludes resulting trusts;

20  conservatorships; personal representatives; custodial

21  arrangements pursuant to the Florida Uniform Transfers Gifts

22  to Minors Act; business trusts providing for certificates to

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

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

25  by the deposit agreement at a financial institution; voting

26  trusts; security arrangements; liquidation trusts; trusts for

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

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

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

30  or escrowee for another.

31  

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  1         (35)(34)  "Trustee" includes an original, additional,

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

  3  confirmed by court.

  4         (36)(35)  "Will" means an instrument, including a

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

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

  7  or her death and includes an instrument which merely appoints

  8  a personal representative or revokes or revises another will.

  9         Section 12.  Section 731.301, Florida Statutes, is

10  amended to read:

11         731.301  Notice; method and time; proof.--

12         (1)  FORMAL NOTICE.--

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

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

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

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

17  provided in the Florida Probate Rules, if the interested

18  person has appeared by attorney or requested that notice be

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

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

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

22  requiring a signed receipt, as follows:

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

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

25  for notice, if any;

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

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

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

29  conducts her or his business or profession;

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

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

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

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

  3  places of business or profession;

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

  5  corporation at its last known address; or

  6         2.  As provided in chapter 48; or

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

  8  manner provided therein.

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

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

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

12  hearing shall be set and reasonable notice given.

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

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

15  48 or chapter 49.  If service is made by mail under

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

17  the person mailing service who shall attach the signed receipt

18  or other evidence satisfactory to the court that delivery was

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

20  agent.

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

22  jurisdiction over the person receiving formal notice to the

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

24         (2)  INFORMAL NOTICE.--

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

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

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

28  Rules of Civil Procedure relating to service of pleadings.

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

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

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

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

  2  proceeding petition shall be bound by all orders entered in

  3  that proceeding on the petition.

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

  5  specifically provided, informal notice of every petition

  6  affecting property rights or interests must be given to

  7  interested persons.

  8         Section 13.  Section 731.303, Florida Statutes, is

  9  amended to read:

10         731.303  Representation.--In proceedings involving

11  estates of decedents or trusts, the following apply:

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

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

14  to the instrument creating the interests, or in another

15  appropriate manner.

16         (1)(2)  Persons are bound by orders binding others in

17  the following cases:

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

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

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

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

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

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

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

25  power.

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

27  between them or among the persons represented:

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

29  ward whose estate he or she controls.

30         2.  Orders binding a trustee bind beneficiaries of the

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

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

  2  prior fiduciary, and in proceedings involving creditors or

  3  other third parties.

  4         3.  Orders binding a personal representative bind

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

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

  7         (c)  An unborn or unascertained person, or a minor or

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

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

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

11  having the same or greater quality of interest in the

12  proceeding.

13         (2)(3)  Orders binding a guardian of the person shall

14  not bind the ward.

15         (3)(4)  Notice is required as follows:

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

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

18  one who can bind the interested person as described in

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

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

21  bind him or her.

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

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

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

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

26  greater quality than, those of the unborn or unascertained

27  persons.

28         (4)(5)  If the court determines that representation of

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

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

31  interests of an incapacitated incompetent person, an unborn or

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  1  unascertained person, a minor or any other person otherwise

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

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

  4  a guardian ad litem may be appointed to represent several

  5  persons or interests.

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

  7  accounts, or other statements that fully disclose the matters

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

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

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

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

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

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

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

15  power.

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

17  Statutes, is amended to read:

18         732.101  Intestate estate.--

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

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

21         Section 15.  Section 732.102, Florida Statutes, is

22  amended to read:

23         732.102  Spouse's share of intestate estate Share of

24  spouse.--

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

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

27  the decedent, the entire intestate estate.

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

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

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

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

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  1  intestate estate. Property allocated hereunder to the

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

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

  4  the decedent's death.

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

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

  7  spouse, one-half of the intestate estate.

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

  9  spouse is entitled, treating all beneficiaries equitably.

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

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

12  amended to read:

13         732.103  Share of other heirs.--The part of the

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

15  732.102, or the entire intestate estate if there is no

16  surviving spouse, descends as follows:

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

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

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

20  kindred in the following order:

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

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

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

24  aforesaid.

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

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

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

28  survived the decedent and then died intestate entitled to the

29  estate.

30         Section 17.  Section 732.107, Florida Statutes, is

31  amended to read:

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  1         732.107  Escheat.--

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

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

  4  part the property shall escheat to the state.

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

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

  7  representative shall institute a proceeding for the

  8  determination of beneficiaries, as provided in this code,

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

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

11  If the personal representative fails to institute the

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

13  Department of Legal Affairs.

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

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

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

17  property and the personal representative has not instituted a

18  proceeding for the determination of beneficiaries.

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

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

21  property Property that escheats shall be sold as provided in

22  the Florida Probate Rules and the proceeds paid to the

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

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

25  court.

26         (3)(4)  At any time within 10 years after the payment

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

28  entitled to the proceeds estate of the decedent may petition

29  to reopen the administration to and assert entitlement his or

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

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

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

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

  3  by the officials charged with the disbursement of state school

  4  funds. If no claim is timely asserted within the time fixed,

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

  6  the proceeds shall become absolute.

  7         (4)(5)  The Department of Legal Affairs shall represent

  8  the state in all proceedings concerning escheated estates.

  9         (5)(6)(a)  If a person entitled to the proceeds funds

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

11  attorney, Florida-certified public accountant, or private

12  investigative agency which is duly licensed to do business in

13  this state pursuant to a written agreement with that such

14  person, the Department of Banking and Finance is authorized to

15  make distribution in accordance with the such assignment.

16         (b)  Payments made to an attorney, Florida-certified

17  public accountant, or private investigative agency shall be

18  promptly deposited into a trust or escrow account which is

19  regularly maintained by the attorney, Florida-certified public

20  accountant, or private investigative agency in a financial

21  institution authorized to accept such deposits and located in

22  this state.

23         (c)  Distribution by the attorney, Florida-certified

24  public accountant, or private investigative agency to the

25  person entitled to the proceeds funds shall be made within 10

26  days following final credit of the deposit into the trust or

27  escrow account at the financial institution, unless a party to

28  the agreement protests the in writing such distribution in

29  writing before it is made.

30  

31  

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

  2  liable for any proceeds funds distributed pursuant to this

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

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

  5  be administered as other estates.

  6         Section 18.  Section 732.1101, Florida Statutes, is

  7  amended to read:

  8         732.1101  Aliens.--Aliens shall have the same rights of

  9  inheritance as citizens No person is disqualified to take as

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

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

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

13  Florida Statutes, is amended to read:

14         732.2025  Definitions.--As used in ss.

15  732.2025-732.2155, the term:

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

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

18  surviving spouse with court approval before or after a

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

20  commencing on the decedent's death:

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

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

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

24  family trustees.  For purposes of this paragraph, ineligible

25  family trustees include the decedent's grandparents and any

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

27  descendants of the surviving spouse; and

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

29  spouse has the power to distribute income or principal to

30  anyone other than the spouse.

31  

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  1         (c)  The requirement for court approval and the

  2  limitation on ineligible family trustees shall not apply if

  3  the aggregate value of all the trust property as of the

  4  applicable valuation date in all a qualifying special needs

  5  trusts for the spouse trust is less than $100,000. For

  6  purposes of this paragraph, value is determined on the

  7  "applicable valuation date" as defined in s. 732.2095(1)(a).

  8         Section 20.  Subsection (2) and paragraph (a) of

  9  subsection (5) of section 732.2035, Florida Statutes, are

10  amended to read:

11         732.2035  Property entering into elective

12  estate.--Except as provided in s. 732.2045, the elective

13  estate consists of the sum of the values as determined under

14  s. 732.2055 of the following property interests:

15         (2)  The decedent's ownership interest in accounts or

16  securities registered in "Pay On Death," "Transfer On Death,"

17  "In Trust For," or coownership with right of survivorship

18  form.  For this purpose, "decedent's ownership interest"

19  means, in the case of accounts or securities held in tenancy

20  by the entirety, one half the value of the account or

21  security, and in all other cases, that portion of the accounts

22  or securities which the decedent had, immediately before

23  death, the right to withdraw or use without the duty to

24  account to any person.

25         (5)(a)  That portion of property, other than property

26  described in subsection (3), subsection (4), or subsection

27  (7), transferred by the decedent to the extent that at the

28  time of the decedent's death:

29         1.  The decedent possessed the right to, or in fact

30  enjoyed the possession or use of, the income or principal of

31  the property; or

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  1         2.  The principal of the property could, in the

  2  discretion of any person other than the spouse of the

  3  decedent, be distributed or appointed to or for the benefit of

  4  the decedent.

  5  

  6  In the application of this subsection, a right to payments

  7  under a commercial or private from an annuity, an annuity

  8  trust, a unitrust, or under a similar contractual arrangement

  9  shall be treated as a right to that portion of the income of

10  the property necessary to equal the annuity, unitrust, or

11  other contractual payment.

12         Section 21.  Subsection (1) of section 732.2045,

13  Florida Statutes, is amended to read:

14         732.2045  Exclusions and overlapping application.--

15         (1)  EXCLUSIONS.--Section 732.2035 does not apply to:

16         (a)  Except as provided in s. 732.2155(4), any transfer

17  of property by the decedent to the extent the transfer is

18  irrevocable before the effective date of this subsection or

19  after that date but before the date of the decedent's marriage

20  to the surviving spouse.

21         (b)  Any transfer of property by the decedent to the

22  extent the decedent received adequate consideration in money

23  or money's worth for the transfer.

24         (c)  Any transfer of property by the decedent made with

25  the written consent of the decedent's spouse. For this

26  purpose, spousal consent to split-gift treatment under the

27  United States gift tax laws does not constitute written

28  consent to the transfer by the decedent.

29         (d)  The proceeds of any policy of insurance on the

30  decedent's life in excess of the net cash surrender value of

31  

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  1  the policy whether payable to the decedent's estate, a trust,

  2  or in any other manner.

  3         (e)  Any policy of insurance on the decedent's life

  4  maintained pursuant to a court order.

  5         (f)  The decedent's one-half of the property to which

  6  ss. 732.216-732.228 apply and real property that is community

  7  property under the laws of the jurisdiction where it is

  8  located.

  9         (g)  Property held in a qualifying special needs trust

10  on the date of the decedent's death.

11         (h)  Property included in the gross estate of the

12  decedent for federal estate tax purposes solely because the

13  decedent possessed a general power of appointment.

14         (i)  Property that constitutes the protected homestead

15  of the decedent whether held by the decedent or by a trust at

16  the decedent's death.

17         Section 22.  Subsection (5) of section 732.2055,

18  Florida Statutes, is amended to read:

19         732.2055  Valuation of the elective estate.--For

20  purposes of s. 732.2035, "value" means:

21         (5)  In the case of all other property, the fair market

22  value of the property on the date of the decedent's death,

23  computed after deducting from the total value of the property:

24         (a)  All claims, other than claims for funeral

25  expenses, paid or payable from the elective estate; and

26         (b)  To the extent they are not deducted under

27  paragraph (a), all mortgages, liens, or security interests on

28  the property.

29         Section 23.  Subsection (2) of section 732.2075,

30  Florida Statutes, is amended to read:

31  

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  1         732.2075  Sources from which elective share payable;

  2  abatement.--

  3         (2)  If, after the application of subsection (1), the

  4  elective share is not fully satisfied, the unsatisfied balance

  5  shall be apportioned among the direct recipients of the

  6  remaining elective estate in the following order of priority:

  7         (a)  Class 1.--The decedent's probate estate and

  8  revocable trusts.

  9         (b)  Class 2.--Recipients of property interests, other

10  than protected charitable interests, included in the elective

11  estate under s. 732.2035(2), (3), or (6) and, to the extent

12  the decedent had at the time of death the power to designate

13  the recipient of the property, property interests, other than

14  protected charitable interests, included under s. 732.2035(5)

15  and (7).

16         (c)  Class 3.--Recipients of all other property

17  interests, other than protected charitable interests, included

18  in the elective estate except interests for which a charitable

19  deduction with respect to the transfer of the property was

20  allowed or allowable to the decedent or the decedent's spouse

21  under the United States gift tax laws.

22         (d)  Class 4.--Recipients of protected charitable lead

23  interests, provided that contribution shall be enforceable

24  against the recipients of any such interest until after the

25  expiration of all charitable interest in the property for

26  which a deduction was allowed or allowable to the decedent or

27  the decedent's spouse under the United States gift tax laws.

28  

29  For purposes of this subsection a "protected charitable

30  interest" is any interest for which a charitable deduction

31  with respect to the transfer of the property was allowed or

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  1  allowable to the decedent or the decedent's spouse under the

  2  United States gift tax laws. A "protected charitable lead

  3  interest" is a protected charitable interest when one or more

  4  deductible interests in charity precede some other

  5  nondeductible interest or interests in the property.

  6         Section 24.  Paragraph (a) of subsection (1) and

  7  paragraph (a) of subsection (3) of section 732.2085, Florida

  8  Statutes, are amended to read:

  9         732.2085  Liability of direct recipients and

10  beneficiaries.--

11         (1)  Only direct recipients of property included in the

12  elective estate and the beneficiaries of the decedent's

13  probate estate or of any trust that is a direct recipient, are

14  liable to contribute toward satisfaction of the elective

15  share.

16         (a)  Within each of the classes described in s.

17  732.2075(2)(b), and (c), and (d) each direct recipient is

18  liable in an amount equal to the value, as determined under s.

19  732.2055, of the proportional part of the liability for all

20  members of the class.

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

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

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

24         (a)  No further contribution toward satisfaction of the

25  elective share shall be required with respect to that such

26  property.

27         Section 25.  Paragraph (a) of subsection (1) and

28  paragraph (d) of subsection (2) of section 732.2095, Florida

29  Statutes, are amended to read:

30         732.2095  Valuation of property used to satisfy

31  elective share.--

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  1         (1)  DEFINITIONS.--As used in this section, the term:

  2         (a)  "Applicable valuation date" means:

  3         1.  In the case of transfers in satisfaction of the

  4  elective share, the date of the decedent's death.

  5         2.  In the case of property held in a qualifying

  6  special needs trust on the date of the decedent's death, the

  7  date of the decedent's death.

  8         3.  In the case of other property irrevocably

  9  transferred to or for the benefit of the surviving spouse

10  during the decedent's life, the date of the transfer.

11         4.  In the case of property distributed to the

12  surviving spouse by the personal representative, the date of

13  distribution.

14         5.  Except as provided in subparagraphs 1., 2., and 3.,

15  in the case of property passing in trust for the surviving

16  spouse, the date or dates the trust is funded in satisfaction

17  of the elective share.

18         6.  In the case of property described in s. 732.2035(2)

19  or (3) s. 732.2035(3) or (4), the date of the decedent's

20  death.

21         7.  In the case of proceeds of any policy of insurance

22  payable to the surviving spouse, the date of the decedent's

23  death.

24         8.  In the case of amounts payable to the surviving

25  spouse under any plan or arrangement described in s.

26  732.2035(7), the date of the decedent's death.

27         9.  In all other cases, the date of the decedent's

28  death or the date the surviving spouse first comes into

29  possession of the property, whichever occurs later.

30  

31  

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  1         (2)  Except as provided in this subsection, the value

  2  of property for purposes of s. 732.2075 is the fair market

  3  value of the property on the applicable valuation date.

  4         (d)  If the surviving spouse has an interest in a trust

  5  that does not meet the requirements of either an elective

  6  share trust or a qualifying special needs trust, the value of

  7  the spouse's interest is the transfer tax value of the

  8  interest on the applicable valuation date; however, the

  9  aggregate value of all of the spouse's interests in the trust

10  shall not exceed one-half of the value of the trust principal

11  on the applicable valuation date.

12         Section 26.  Section 732.2105, Florida Statutes, is

13  amended to read:

14         732.2105  Effect of election on other interests.--

15         (1)  The elective share shall be in addition to

16  homestead, exempt property, and allowances as provided in part

17  IV.

18         (2)  If an election is filed, the balance of the

19  elective estate, after the application of s. 732.2145(1),

20  shall be administered as though the surviving spouse had

21  predeceased the decedent.

22         Section 27.  Subsection (2) of section 732.2125,

23  Florida Statutes, is amended to read:

24         732.2125  Right of election; by whom exercisable.--The

25  right of election may be exercised:

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

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

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

29  court having jurisdiction of the probate proceeding. The court

30  shall determine the election as the best interests of the

31  

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

  2  require.

  3         Section 28.  Section 732.2135, Florida Statutes, is

  4  amended to read:

  5         732.2135  Time of election; extensions; withdrawal.--

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

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

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

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

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

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

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

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

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

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

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

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

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

19  by the extension.

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

21  guardian of the property, or personal representative of the

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

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

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

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

26  or the surviving spouse's estate.

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

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

29  the time for making the election.

30         Section 29.  Subsections (1) and (4) of section

31  732.2145, Florida Statutes, are amended to read:

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  1         732.2145  Order of contribution; personal

  2  representative's duty to collect contribution.--

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

  4  shall order contribution. All Contributions shall are to bear

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

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

  7  contribution. The order of contribution is prima facie correct

  8  in proceedings in any court or jurisdiction.

  9         (4)  Nothing in this section limits the independent

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

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

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

13  enforce the an order of contribution, the judgment shall

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

15  fees.

16         Section 30.  Subsection (4) of section 732.2155,

17  Florida Statutes, is amended to read:

18         732.2155  Effective date; effect of prior waivers;

19  transition rules.--

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

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

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

23  meets the requirements of an elective share trust is treated

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

25  of these sections this subsection and in satisfaction of the

26  elective share.

27         Section 31.  Subsection (2) of section 732.218, Florida

28  Statutes, is amended to read:

29         732.218  Rebuttable presumptions.--In determining

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

31  following rebuttable presumptions apply:

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

  2  homestead and real property held as tenants by the entirety

  3  and homestead, and personal property wherever located acquired

  4  by a married person while domiciled in a jurisdiction under

  5  whose laws property could not then be acquired as community

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

  7  rights of survivorship are presumed not to be property to

  8  which these sections do not apply.

  9         Section 32.  Section 732.219, Florida Statutes, is

10  amended to read:

11         732.219  Disposition upon death.--Upon the death of a

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

13  732.216-732.228 apply is the property of the surviving spouse

14  and is not subject to testamentary disposition by the decedent

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

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

17  is subject to testamentary disposition or distribution under

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

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

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

21         Section 33.  Section 732.221, Florida Statutes, is

22  amended to read:

23         732.221  Perfection of title of personal representative

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

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

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

27  personal representative or a beneficiary an heir or devisee of

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

29  property.  The personal representative has no fiduciary duty

30  to discover whether any property held by the surviving spouse

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

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

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

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

  4  administration on the beneficiary or by a creditor within 3

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

  6         Section 34.  Subsections (1) and (2) of section

  7  732.222, Florida Statutes, are amended to read:

  8         732.222  Purchaser for value or lender.--

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

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

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

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

13  rights of the personal representative or a beneficiary an heir

14  or devisee of the decedent.

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

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

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

18  lender taking a security interest in the property takes that

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

20  surviving spouse.

21         Section 35.  Section 732.223, Florida Statutes, is

22  amended to read:

23         732.223  Perfection of title of surviving spouse.--If

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

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

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

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

28  by the personal representative or the beneficiaries heirs or

29  devisees of the decedent with the approval of the probate

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

31  being administered has no duty to discover whether property

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

  2  apply.  The personal representative has no duty to discover

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

  4  732.216-732.228 apply unless a written demand is made by the

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

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

  7  the notice of administration on the surviving spouse or the

  8  spouse's successor in interest.

  9         Section 36.  Section 732.302, Florida Statutes, is

10  amended to read:

11         732.302  Pretermitted children.--When a testator omits

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

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

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

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

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

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

18  intestate, unless:

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

20  intentional; or

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

22  will was executed and devised substantially all the estate to

23  the other parent of the pretermitted child and that other

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

25  will.

26  

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

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

29         Section 37.  Section 732.401, Florida Statutes, is

30  amended to read:

31         732.401  Descent of homestead.--

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

  2  Constitution, the homestead shall descend in the same manner

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

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

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

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

  7  decedent's death per stirpes.

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

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

10  decedent and the surviving spouse owned as tenants by the

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

12         Section 38.  Subsection (2) of section 732.4015,

13  Florida Statutes, is amended to read:

14         732.4015  Devise of homestead.--

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

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

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

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

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

20  the grantor pursuant to which the settlor retained the right

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

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

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

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

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

26  settlor's homestead.

27         Section 39.  Subsections (4) and (6) of section

28  732.402, Florida Statutes, are amended, and subsection (7) is

29  added to that section to read:

30         732.402  Exempt property.--

31  

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

  2  homestead, statutory entitlements, and any property passing

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

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

  5  or by intestate succession, elective share, or family

  6  allowance.

  7         (6)  Persons entitled to exempt property shall be

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

  9  petition for determination of exempt property is filed by or

10  on behalf of the persons entitled to the exempt property

11  within 4 months after the date of service the first

12  publication of the notice of administration or within 40 days

13  from the date of termination of any proceeding involving the

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

15  involving any other matter affecting any part of the estate

16  subject to this section.

17         (7)  Property determined as exempt under this section

18  shall be excluded from the value of the estate before

19  residuary, intestate, or pretermitted or elective shares are

20  determined.

21         Section 40.  Section 732.403, Florida Statutes, is

22  amended to read:

23         732.403  Family allowance.--In addition to protected

24  homestead and statutory entitlements exempt property, if the

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

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

27  decedent was supporting or was obligated to support or who

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

29  reasonable allowance in money out of the estate for their

30  maintenance during administration.  After notice and hearing,

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

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  1  in periodic installments.  The allowance shall not exceed a

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

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

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

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

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

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

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

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

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

11  surviving spouse appear. The family allowance shall have the

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

13  not chargeable against any benefit or share otherwise passing

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

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

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

17  person entitled to a family allowance terminates the his or

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

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

20  heirs" means lineal ascendants and lineal descendants of the

21  decedent.

22         Section 41.  Section 732.501, Florida Statutes, is

23  amended to read:

24         732.501  Who may make a will.--Any person who is of

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

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

27  may make a will.

28         Section 42.  Paragraph (a) of subsection (1) and

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

30  amended to read:

31  

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  1         732.502  Execution of wills.--Every will must be in

  2  writing and executed as follows:

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

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

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

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

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

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

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

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

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

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

13  the testator's handwriting that has been executed in

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

15  holographic will.

16         Section 43.  Section 732.503, Florida Statutes, is

17  amended to read:

18         732.503  Self-proof of will.--

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

20  732.502(1) and (2) may be made self-proved at the time of its

21  execution or at any subsequent date by the acknowledgment of

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

23  made before an officer authorized to administer oaths and

24  evidenced by the officer's certificate attached to or

25  following the will, in substantially the following form:

26  

27  STATE OF FLORIDA

28  COUNTY OF ....

29         I,               , declare to the officer taking my

30  acknowledgment of this instrument, and to the subscribing

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

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  1  

  2  

  3                     ________________________

  4                             Testator

  5  

  6         We,         and         , have been sworn by the

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

  8  oaths that the testator declared the instrument to be the

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

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

11  testator and of each other.

12  

13  

14                     ________________________

15                             Witness

16  

17                     ________________________

18                             Witness

19  

20         Acknowledged and subscribed before me by the testator,

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

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

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

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

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

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

27  117.05(5)(b)2.)... as identification and ...(type or print

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

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

30  117.05(5)(b)2.)... as identification, and subscribed by me in

31  

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  1  the presence of the testator and the subscribing witnesses,

  2  all on ...(date)...

  3                                    ...(Signature of Officer)...

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

  5  seal)...

  6  

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

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

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

10  under this section.

11  

12  STATE OF ....

13  COUNTY OF ....

14         We, ...., ...., and .... the testator and the

15  witnesses, respectively, whose names are signed to the

16  attached or foregoing instrument, having been sworn, declared

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

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

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

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

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

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

23                                                ...(Testator)...

24                                                 ...(Witness)...

25                                                 ...(Witness)...

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

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

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

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

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

31  

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

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

  3                              ...(Signature of Notary Public)...

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

  5  Public)...

  6  

  7         Section 44.  Section 732.505, Florida Statutes, is

  8  amended to read:

  9         732.505  Revocation by writing.--A will or codicil, or

10  any part of either, is revoked:

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

12  though the subsequent inconsistent will or codicil does not

13  expressly revoke all previous wills or codicils, but the

14  revocation extends only so far as the inconsistency exists.

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

16  writing executed with the same formalities required for the

17  execution of wills declaring the revocation, if the same

18  formalities required for the execution of wills are observed

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

20         Section 45.  Section 732.507, Florida Statutes, is

21  amended to read:

22         732.507  Effect of subsequent marriage, birth, or

23  dissolution of marriage.--

24         (1)  Neither subsequent marriage, nor subsequent

25  marriage and birth, nor or adoption of lineal descendants

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

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

28  732.301 and 732.302, regardless of the prior will.

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

30  married person, which provision affects the spouse of that

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

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

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

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

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

  5  marriage, unless the will or the dissolution or divorce

  6  judgment expressly provides otherwise.

  7         Section 46.  Paragraph (d) of subsection (2), and

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

  9  are amended to read:

10         732.513  Devises to trustee.--

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

12  the following reasons:

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

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

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

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

17  all rights of ownership in the such death benefit policy,

18  contract, or plan, including the right to change the

19  beneficiary.

20         (3)  The devise shall dispose of property under the

21  terms of the instrument that created the trust as previously

22  or subsequently theretofore or thereafter amended.

23         (6)  This section shall be cumulative to all laws

24  touching upon the subject matter.

25         Section 47.  Section 732.514, Florida Statutes, is

26  amended to read:

27         732.514  Vesting of devises.--The death of the testator

28  is the event that vests the right to devises unless the

29  testator in the his or her will has provided that some other

30  event must happen before a devise vests shall vest.

31  

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  1         Section 48.  Section 732.515, Florida Statutes, is

  2  amended to read:

  3         732.515  Separate writing identifying devises of

  4  tangible property.--A will may refer to a written statement or

  5  list referred to in the decedent's will shall to dispose of

  6  items of tangible personal property, other than property used

  7  in trade or business, not otherwise specifically disposed of

  8  by the will, other than money and property used in trade or

  9  business.  To be admissible under this section as evidence of

10  the intended disposition, the writing must be signed by the

11  testator and must describe the items and the devisees with

12  reasonable certainty.  The writing may be referred to as one

13  in existence at the time of the testator's death.  It may be

14  prepared before or after the execution of the will.  It may be

15  altered by the testator after its preparation.  It may be a

16  writing that has no significance apart from its effect upon

17  the dispositions made by the will. If more than one otherwise

18  effective writing exists then, to the extent of any conflict

19  among the writings, the provisions of the most recent writing

20  revoke the inconsistent provisions of each prior writing.

21         Section 49.  Subsection (1) of section 732.6005,

22  Florida Statutes, is amended to read:

23         732.6005  Rules of construction and intention.--

24         (1)  The intention of the testator as expressed in the

25  his or her will controls the legal effect of the testator's

26  dispositions.  The rules of construction expressed in this

27  part shall apply unless a contrary intention is indicated by

28  the will.

29         Section 50.  Section 732.601, Florida Statutes, is

30  amended to read:

31  

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  1         732.601  Simultaneous Death Law.--Unless a contrary

  2  intention appears in the governing instrument:

  3         (1)  When title to property or its devolution depends

  4  on priority of death and there is insufficient evidence that

  5  the persons have died otherwise than simultaneously, the

  6  property of each person shall be disposed of as if that person

  7  he or she had survived, except as provided otherwise in this

  8  law.

  9         (2)  When two or more beneficiaries are designated to

10  take successively by reason of survivorship under another

11  person's disposition of property and there is insufficient

12  evidence that the beneficiaries died otherwise than

13  simultaneously, the property thus disposed of shall be divided

14  into as many equal parts as there are successive beneficiaries

15  and the parts shall be distributed to those who would have

16  taken if each designated beneficiary had survived.

17         (3)  When there is insufficient evidence that two joint

18  tenants or tenants by the entirety died otherwise than

19  simultaneously, the property so held shall be distributed

20  one-half as if one had survived and one-half as if the other

21  had survived. If there are more than two joint tenants and all

22  of them so died, the property thus distributed shall be in the

23  proportion that one bears to the whole number of joint

24  tenants.

25         (4)  When the insured and the beneficiary in a policy

26  of life or accident insurance have died and there is

27  insufficient evidence that they died otherwise than

28  simultaneously, the proceeds of the policy shall be

29  distributed as if the insured had survived the beneficiary.

30         (5)  This law shall not apply in the case of wills,

31  living trusts, deeds, or contracts of insurance in which

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  1  provision has been made for distribution of property different

  2  from the provisions of this law.

  3         Section 51.  Section 732.603, Florida Statutes, is

  4  amended to read:

  5         732.603  Antilapse; deceased devisee; class

  6  gifts.--Unless a contrary intention appears in the will:

  7         (1)  If a devisee or a beneficiary of a trust created

  8  by a will who is a grandparent, or a lineal descendant of a

  9  grandparent, of the testator:

10         (a)  Is dead at the time of the execution of the will

11  or at the termination of a trust interest created by a will,

12         (b)  Fails to survive the testator, or

13         (c)  Is required by the will to be treated as having if

14  he or she predeceased the testator,

15  

16  then the descendants of the devisee or beneficiary take per

17  stirpes in place of the deceased devisee or beneficiary.  A

18  person who would have been a devisee under a class gift if

19  that person he or she had survived the testator shall be a

20  devisee for purposes of this section whether that person died

21  his or her death occurred before or after the execution of the

22  will.

23         (2)  If a devisee or a beneficiary of a trust created

24  by a will who is not a grandparent, or a descendant of a

25  grandparent, of the testator:

26         (a)  Is dead at the time of the execution of the will

27  or at the termination of a trust interest created in a will,

28         (b)  Fails to survive the testator, or

29         (c)  Is required by the will to be treated as having if

30  he or she predeceased the testator,

31  

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  1  then the testamentary disposition to the devisee or

  2  beneficiary shall lapse unless an intention to substitute

  3  another in his or her place appears in the will.

  4         Section 52.  Subsection (2) of section 732.604, Florida

  5  Statutes, is amended to read:

  6         732.604  Failure of testamentary provision.--

  7         (2)  Except as provided in s. 732.603, if the residue

  8  is devised to two or more persons and the devise to share of

  9  one of the residuary devisees fails for any reason, that

10  devise his or her share passes to the other residuary devisee,

11  or to the other residuary devisees in proportion to their

12  interests in the residue.

13         Section 53.  Section 732.605, Florida Statutes, is

14  amended to read:

15         732.605  Change in securities; accessions;

16  nonademption.--

17         (1)  If the testator intended a specific devise of

18  certain securities rather than their equivalent value, the

19  specific devisee is entitled only to:

20         (a)  As much of the devised securities as is a part of

21  the estate at the time of the testator's death.

22         (b)  Any additional or other securities of the same

23  entity owned by the testator because of action initiated by

24  the entity, excluding any acquired by exercise of purchase

25  options.

26         (c)  Securities of another entity owned by the testator

27  as a result of a merger, consolidation, reorganization, or

28  other similar action initiated by the entity.

29         (d)  Securities of the same entity acquired as a result

30  of a plan of reinvestment.

31  

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  1         (2)  Distributions before death with respect to of a

  2  specifically devised security, whether in cash or otherwise,

  3  which are not provided for in subsection (1) are not part of

  4  the specific devise.

  5         Section 54.  Subsection (1) and paragraph (d) of

  6  subsection (2) of section 732.606, Florida Statutes, are

  7  amended to read:

  8         732.606  Nonademption of specific devises in certain

  9  cases; sale by guardian of the property; unpaid proceeds of

10  sale, condemnation, or insurance.--

11         (1)  If specifically devised property is sold by a

12  guardian of the property for the care and maintenance of the

13  ward or if a condemnation award or insurance proceeds are paid

14  to a guardian of the property as a result of condemnation,

15  fire, or casualty, the specific devisee has the right to a

16  general pecuniary devise equal to the net sale price, the

17  condemnation award, or the insurance proceeds.  This

18  subsection does not apply if, subsequent to the sale,

19  condemnation, or casualty, it is adjudicated that the

20  disability of the testator has ceased and the testator

21  survives the adjudication by 1 year. The right of the specific

22  devisee under this subsection is reduced by any right

23  described in he or she has under subsection (2).

24         (2)  A specific devisee has the right to the remaining

25  specifically devised property and:

26         (d)  Property owned by the testator at his or her death

27  as a result of foreclosure, or obtained instead of

28  foreclosure, of the security for the specifically devised

29  obligation.

30         Section 55.  Subsection (1) of section 732.701, Florida

31  Statutes, is amended to read:

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  1         732.701  Agreements concerning succession.--

  2         (1)  No agreement to make a will, to give a devise, not

  3  to revoke a will, not to revoke a devise, not to make a will,

  4  or not to make a devise shall be binding or enforceable unless

  5  the agreement is in writing and signed by the agreeing party

  6  in the presence of two attesting witnesses. Such an agreement

  7  executed by a nonresident of Florida, either before or after

  8  this law takes effect, is valid in this state if valid when

  9  executed under the laws of the state or country where the

10  agreement was executed, whether or not the agreeing party is a

11  Florida resident at the time of death.

12         Section 56.  Section 732.702, Florida Statutes, is

13  amended to read:

14         732.702  Waiver of spousal right to elect and of other

15  rights.--

16         (1)  The rights right of election of a surviving

17  spouse, the rights of the surviving spouse as intestate

18  successor or as a pretermitted spouse, and the rights of the

19  surviving spouse to an elective share, intestate share,

20  pretermitted share, homestead, exempt property, and family

21  allowance, and preference in appointment as personal

22  representative of an intestate estate or any of those rights

23  them, may be waived, wholly or partly, before or after

24  marriage, by a written contract, agreement, or waiver, signed

25  by the waiving party in the presence of two subscribing

26  witnesses. The requirement of witnesses shall be applicable

27  only to contracts, agreements, or waivers signed by Florida

28  residents after the effective date of this law. Any contract,

29  agreement, or waiver executed by a nonresident of Florida,

30  either before or after this law takes effect, is valid in this

31  state if valid when executed under the laws of the state or

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  1  country where it was executed, whether or not he or she is a

  2  Florida resident at the time of death. Unless the waiver it

  3  provides to the contrary, a waiver of "all rights," or

  4  equivalent language, in the property or estate of a present or

  5  prospective spouse, or a complete property settlement entered

  6  into after, or in anticipation of, separation, dissolution of

  7  marriage, or divorce, is a waiver of all rights to elective

  8  share, intestate share, pretermitted share, homestead

  9  property, exempt property, and family allowance, and

10  preference in appointment as personal representative of an

11  intestate estate, by the waiving party each spouse in the

12  property of the other and a renunciation by the waiving party

13  each of all benefits that would otherwise pass to the waiving

14  party either from the other by intestate succession or by the

15  provisions of any will executed before the written contract,

16  agreement, or waiver or property settlement.

17         (2)  Each spouse shall make a fair disclosure to the

18  other of that spouse's his or her estate if the agreement,

19  contract, or waiver is executed after marriage.  No disclosure

20  shall be required for an agreement, contract, or waiver

21  executed before marriage.

22         (3)  No consideration other than the execution of the

23  agreement, contract, or waiver shall be necessary to its

24  validity, whether executed before or after marriage.

25         Section 57.  Subsections (2), (3), (4), (5), (6), and

26  (7) of section 732.801, Florida Statutes, are amended to read:

27         732.801  Disclaimer of interests in property passing by

28  will or intestate succession or under certain powers of

29  appointment.--

30         (2)  SCOPE OF RIGHT TO DISCLAIM.--

31  

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  1         (a)  A beneficiary may disclaim his or her succession

  2  to any interest in property that, unless disclaimed, would

  3  pass to the beneficiary:

  4         1.  By intestate succession or devise.

  5         2.  Under descent of homestead, exempt property, or

  6  family allowance or under s. 222.13.

  7         3.  Through exercise or nonexercise of a power of

  8  appointment exercisable by will.

  9         4.  Through testamentary exercise or nonexercise of a

10  power of appointment exercisable by either deed or will.

11         5.  As beneficiary of a testamentary trust.

12         6.  As a beneficiary of a testamentary gift to any

13  nontestamentary trust.

14         7.  As donee of a power of appointment created by will.

15         8.  By succession in any manner described in this

16  subsection to a disclaimed interest.

17         9.  In any manner not specifically enumerated herein

18  under a testamentary instrument.

19         (b)  Disclaimer may be made for a minor, incompetent,

20  incapacitated person, or deceased beneficiary by the guardian

21  or personal representative if the court having jurisdiction of

22  the estate of the minor, incompetent, incapacitated person, or

23  deceased beneficiary upon petition finds that the disclaimer:

24         1.  Is in the best interests of those interested in the

25  estate of the beneficiary and of those who take the

26  beneficiary's interest by virtue of the disclaimer and

27         2.  Is not detrimental to the best interests of the

28  beneficiary.

29  

30  The determination shall be made on a petition filed for that

31  purpose and served on all interested persons.  If ordered by

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  1  the court, the guardian or personal representative shall

  2  execute and record the disclaimer on behalf of the beneficiary

  3  within the time and in the manner in which the beneficiary

  4  could disclaim if he or she were living, of legal age, and

  5  competent.

  6         (3)  DISPOSITION OF DISCLAIMED INTERESTS.--

  7         (a)  Unless the decedent or a donee of a power of

  8  appointment has otherwise provided by will or other

  9  appropriate instrument with reference to the possibility of a

10  disclaimer by the beneficiary, the interest disclaimed shall

11  descend, be distributed, or otherwise be disposed of in the

12  same manner as if the disclaimant had died immediately

13  preceding the death or other event that caused him or her to

14  become finally ascertained as a beneficiary and the

15  disclaimant's interest to become indefeasibly fixed both in

16  quality and quantity.  The disclaimer shall relate to that

17  date for all purposes, whether recorded before or after the

18  death or other event.  An interest in property disclaimed

19  shall never vest in the disclaimant.  If the provisions of s.

20  732.603 would have been applicable had the disclaimant in fact

21  died immediately preceding the death or other event, they

22  shall be applicable to the disclaimed interest.

23         (b)  Unless the his or her disclaimer instrument so

24  provides, a beneficiary who disclaims any interest that would

25  pass to him or her in any manner described in subsection (2)

26  shall not be excluded from sharing in any other interest to

27  which he or she may be entitled in any manner described in the

28  subsection, including subparagraph (2)(a)8., even though the

29  interest includes disclaimed assets by virtue of the

30  beneficiary's disclaimer.

31  

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  1         (4)  FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER

  2  INSTRUMENTS.--

  3         (a)  To be A disclaimer shall be in, a writing and

  4  shall declare the disclaimer and its extent, describe the

  5  interest in property disclaimed, and be executed signed,

  6  witnessed, and acknowledged in the manner provided for the

  7  conveyance of real property.

  8         (b)  A disclaimer shall be effective and irrevocable

  9  when the instrument is recorded by the clerk where the estate

10  of the decedent is or has been administered.  If no

11  administration has been commenced, it may be recorded

12  recording may be made with the clerk of any county where venue

13  of administration is proper.

14         (c)  The person disclaiming shall deliver or mail a

15  copy of the disclaimer instrument to the personal

16  representative, trustee, or other person having legal title

17  to, or possession of, the property in which the disclaimed

18  interest exists.  No representative, trustee, or other person

19  shall be liable for any otherwise proper distribution or other

20  disposition made without actual notice of the disclaimer or,

21  if the disclaimer is waived or barred as hereinafter provided,

22  for any otherwise proper distribution or other disposition

23  made in reliance on the disclaimer, if the distribution or

24  disposition is made without actual notice of the facts

25  constituting the waiver or bar of barring the right to

26  disclaim.

27         (5)  TIME FOR RECORDING DISCLAIMER.--To be effective a

28  disclaimer shall be recorded at any time after the creation of

29  the interest, but in any event within 9 months after the event

30  giving rise to the right to disclaim, including the death of

31  the decedent; or, if the disclaimant is not finally

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  1  ascertained as a beneficiary or the disclaimant's interest has

  2  not become indefeasibly fixed both in quality and quantity at

  3  the death of the decedent, then the disclaimer shall be

  4  recorded not later than 6 months after the event that would

  5  cause the him or her to become finally ascertained and his or

  6  her interest to become indefeasibly fixed both in quality and

  7  quantity.  However, a disclaimer may be effective if recorded

  8  at any time after the creation of the interest, upon the

  9  written consent of all interested parties as provided in s.

10  731.302.

11         (6)  WAIVER OR BAR TO RIGHT TO DISCLAIM.--

12         (a)  The right to disclaim otherwise conferred by this

13  section shall be barred if the disclaimant beneficiary is

14  insolvent at the time of recording the disclaimer the event

15  giving rise to the right to disclaim and also by:

16         1.  Making a voluntary assignment or transfer of, a

17  contract to assign or transfer, or an encumbrance of, an

18  interest in real or personal property.

19         2.  Giving a written waiver of the right to disclaim

20  the succession to an interest in real or personal property.

21         3.  Making any sale or other disposition of an interest

22  in real or personal property pursuant to judicial process by

23  the beneficiary before recording he or she has recorded a

24  disclaimer.

25         (b)  The acceptance, assignment, transfer, encumbrance,

26  or written waiver of the right to disclaim a part of an

27  interest in property, or the sale pursuant to judicial process

28  of a part of an interest in property, shall not bar the right

29  to disclaim any other part of the interest in property.

30         (7)  EFFECT OF RESTRAINTS.--The right to disclaim

31  granted by this section is shall exist irrespective of any

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  1  limitation imposed on the interest of the disclaimant in the

  2  nature of an express or implied spendthrift provision or

  3  similar restriction.

  4         Section 58.  Section 732.804, Florida Statutes, is

  5  amended to read:

  6         732.804  Provisions relating to disposition of the body

  7  cremation.--Before issuance of letters, any person may carry

  8  out written instructions of the decedent relating to the

  9  decedent's body and funeral and burial arrangements. The fact

10  that cremation occurred pursuant to a written direction

11  provision of a will or any written contract signed by the

12  decedent that the in which he or she expressed the intent that

13  his or her body be cremated is a complete defense to a cause

14  of action against any person acting or relying on that

15  direction the personal representative or person providing the

16  services.

17         Section 59.  Section 732.901, Florida Statutes, is

18  amended to read:

19         732.901  Production of wills.--

20         (1)  The custodian of a will must deposit the will with

21  the clerk of the court having venue of the estate of the

22  decedent within 10 days after receiving information that the

23  testator is dead.  The custodian must supply the testator's

24  date of death or social security number to the clerk upon

25  deposit.  Willful failure to deposit the will with the clerk

26  within the time period specified shall render the custodian

27  responsible for all costs and damages sustained by anyone if

28  the court finds that the custodian had no just or reasonable

29  cause for withholding the deposit of the will.

30         (2)  Upon By petition and notice of it served on him or

31  her, the custodian of any will may be compelled to produce and

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  1  deposit the will as provided in subsection (1).  All costs,

  2  damages, and a reasonable attorney's fee shall be adjudged to

  3  petitioner against the delinquent custodian if the court finds

  4  that the custodian had no just or reasonable cause for failing

  5  to withholding the deposit of the will.

  6         Section 60.  Section 732.910, Florida Statutes, is

  7  transferred and renumbered as section 765.510, Florida

  8  Statutes.

  9         Section 61.  Section 732.911, Florida Statutes, is

10  transferred and renumbered as section 765.511, Florida

11  Statutes.

12         Section 62.  Section 732.912, Florida Statutes, is

13  transferred and renumbered as section 765.512, Florida

14  Statutes.

15         Section 63.  Section 732.913, Florida Statutes, is

16  transferred and renumbered as section 765.513, Florida

17  Statutes.

18         Section 64.  Section 732.914, Florida Statutes, is

19  transferred and renumbered as section 765.514, Florida

20  Statutes.

21         Section 65.  Section 732.915, Florida Statutes, is

22  transferred and renumbered as section 765.515, Florida

23  Statutes.

24         Section 66.  Section 732.916, Florida Statutes, is

25  transferred and renumbered as section 765.516, Florida

26  Statutes.

27         Section 67.  Section 732.917, Florida Statutes, is

28  transferred and renumbered as section 765.517, Florida

29  Statutes.

30  

31  

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  1         Section 68.  Section 732.918, Florida Statutes, is

  2  transferred and renumbered as section 765.518, Florida

  3  Statutes.

  4         Section 69.  Section 732.9185, Florida Statutes, is

  5  transferred and renumbered as section 765.5185, Florida

  6  Statutes.

  7         Section 70.  Section 732.919, Florida Statutes, is

  8  transferred and renumbered as section 765.519, Florida

  9  Statutes.

10         Section 71.  Section 732.921, Florida Statutes, is

11  transferred and renumbered as section 765.521, Florida

12  Statutes.

13         Section 72.  Section 732.9215, Florida Statutes, is

14  transferred and renumbered as section 765.5215, Florida

15  Statutes.

16         Section 73.  Section 732.92155, Florida Statutes, is

17  transferred and renumbered as section 765.52155, Florida

18  Statutes.

19         Section 74.  Section 732.9216, Florida Statutes, is

20  transferred and renumbered as section 765.5216, Florida

21  Statutes.

22         Section 75.  Section 732.922, Florida Statutes, is

23  transferred and renumbered as section 765.522, Florida

24  Statutes.

25         Section 76.  Section 733.101, Florida Statutes, is

26  amended to read:

27         733.101  Venue of probate proceedings.--

28         (1)  The venue for of probate of all wills and granting

29  of letters shall be:

30         (a)  In the county in this state where the decedent was

31  domiciled had his or her domicile.

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  1         (b)  If the decedent had no domicile in this state,

  2  then in any county where the decedent's decedent was possessed

  3  of any property is located.

  4         (c)  If the decedent had no domicile in this state and

  5  possessed no property in this state, then in the county where

  6  any debtor of the decedent resides.

  7         (2)  For the purpose of this section, a married woman

  8  whose husband is an alien or a nonresident of Florida may

  9  establish or designate a separate domicile in this state.

10         (3)  Whenever a When any proceeding is filed laying

11  venue in an improper the wrong county, the court may transfer

12  the action in the same manner as provided in the Florida Rules

13  of Civil Procedure.  Any action taken by the court or the

14  parties before the transfer is not affected by because of the

15  improper venue.

16         Section 77.  Subsection (2) of section 733.103, Florida

17  Statutes, is amended to read:

18         733.103  Effect of probate.--

19         (2)  In any collateral action or proceeding relating to

20  devised property, the probate of a will in Florida shall be

21  conclusive of its due execution; that it was executed by a

22  competent testator, free of fraud, duress, mistake, and undue

23  influence; and of the fact that the will was unrevoked on the

24  testator's death.

25         Section 78.  Section 733.104, Florida Statutes, is

26  amended to read:

27         733.104  Suspension of statutes of limitation in favor

28  of the personal representative.--

29         (1)  If a person entitled to bring an action dies

30  before the expiration of the time limited for the commencement

31  of the action and the cause of action survives, the action may

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  1  be commenced by that person's his or her personal

  2  representative before the later of the expiration of the time

  3  limited for the commencement of the action or 12 months after

  4  the expiration and within 12 months from the date of the

  5  decedent's death.

  6         (2)  If a person against whom a cause of action exists

  7  dies before the expiration of the time limited for

  8  commencement of the action and the cause of action survives,

  9  claim shall be filed on the cause of action, and it shall then

10  proceed as other claims against the estate, notwithstanding

11  the expiration of the time limited for commencement of the

12  action shall not apply if a claim is timely filed.

13         Section 79.  Section 733.105, Florida Statutes, is

14  amended to read:

15         733.105  Determination of beneficiaries.--

16         (1)  When property passes by intestate succession or

17  under a will to a person not sufficiently identified in the

18  will is unclear and there is the personal representative is in

19  doubt about:

20         (a)  Who is entitled to receive any part of the

21  property it or part of it, or

22         (b)  The shares and amounts that any person is entitled

23  to receive,

24  

25  any interested person the personal representative may petition

26  the court to determine beneficiaries or their shares file a

27  petition setting forth the names, residences, and post office

28  addresses of all persons in interest, except creditors of the

29  decedent, so far as known or ascertainable by diligent search

30  and inquiry, and the nature of their respective interests,

31  designating those who are believed by the personal

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  1  representative to be minors or incompetents and stating

  2  whether those so designated are under legal guardianship in

  3  this state.  If the personal representative believes that

  4  there are, or may be, persons whose names are not known to him

  5  or her who have claims against, or interest in, the estate as

  6  heirs or devisees, the petition shall so state.

  7         (2)  After formal notice and hearing, the court shall

  8  enter an order determining the heirs or devisees or the shares

  9  and amounts they are entitled to receive, or both.  Any

10  personal representative who makes distribution or takes any

11  other action pursuant to an the order determining

12  beneficiaries shall be fully protected.

13         (3)  When it is necessary to determine who are or were

14  the heirs or devisees, the court may make a determination, on

15  the petition of any interested person, in like proceedings and

16  after formal notice, irrespective of whether the estate of the

17  deceased person is administered or, if administered, whether

18  the administration of the estate has been closed or the

19  personal representative discharged.  A separate civil action

20  to determine beneficiaries may be brought under this

21  subsection when an estate has not been is not being

22  administered.

23         Section 80.  Subsections (2), (3), and (4) of section

24  733.106, Florida Statutes, are amended to read:

25         733.106  Costs and attorney's attorney fees.--

26         (2)  A person nominated as personal representative of

27  the last known will, or any proponent of a the will if the

28  person so nominated does not act within a reasonable time, if

29  in good faith justified in offering the will in due form for

30  probate, shall receive his or her costs and attorney's

31  

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  1  attorney fees from out of the estate even though probate is

  2  denied or revoked he or she is unsuccessful.

  3         (3)  Any attorney who has rendered services to an

  4  estate may be awarded reasonable compensation from the estate

  5  may apply for an order awarding attorney fees, and after

  6  informal notice to the personal representative and all persons

  7  bearing the impact of the payment the court shall enter its

  8  order on the petition.

  9         (4)  When costs and attorney's attorney fees are to be

10  paid from out of the estate, the court may, in its discretion,

11  direct from what part of the estate they shall be paid.

12         Section 81.  Section 733.107, Florida Statutes, is

13  amended to read:

14         733.107  Burden of proof in contests.--In all

15  proceedings contesting the validity of a will, the burden

16  shall be upon the proponent of the will to establish prima

17  facie its formal execution and attestation.  Thereafter, the

18  contestant shall have the burden of establishing the grounds

19  on which the probate of the will is opposed or revocation is

20  sought.

21         Section 82.  Section 733.109, Florida Statutes, is

22  amended to read:

23         733.109  Revocation of probate.--

24         (1)  A proceeding to revoke the probate of a will shall

25  be brought in the court having jurisdiction over the

26  administration. Any interested person, including a beneficiary

27  under a prior will, unless except those barred under s.

28  733.212 or s. 733.2123, may commence the proceeding, before

29  final discharge of the personal representative, petition the

30  court in which the will was admitted to probate for revocation

31  of probate.

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  1         (a)  The petition shall state the interest of the

  2  petitioner and the grounds for revocation.

  3         (b)  The petition shall be served upon the personal

  4  representative and all interested persons by formal notice,

  5  and thereafter proceedings shall be conducted as an adversary

  6  proceeding under the rules of civil procedure.

  7         (2)  Pending the determination of any petition for

  8  revocation of probate, the personal representative shall

  9  proceed with the administration of the estate as if no

10  revocation proceeding had been commenced, except that no

11  distribution may be made to beneficiaries devisees in

12  contravention of the rights of those who, but for the will,

13  would be entitled to the property disposed of.

14         (3)  Revocation of probate of a will shall not affect

15  or impair the title to the property theretofore purchased in

16  good faith for value from the personal representative prior to

17  an order of revocation.

18         Section 83.  Subsection (3) of section 733.201, Florida

19  Statutes, is amended to read:

20         733.201  Proof of wills.--

21         (3)  If it appears to the court that the attesting

22  witnesses cannot be found or that they have become incompetent

23  after the execution of the will or their testimony cannot be

24  obtained within a reasonable time, a will may be admitted to

25  probate upon the oath of the personal representative nominated

26  by the will as provided in subsection (2), whether or not the

27  nominated personal representative he or she is interested in

28  the estate, or upon the oath of any person having no interest

29  in the estate under the will stating, that the person he or

30  she believes the writing exhibited to be the true last will of

31  the decedent.

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  1         Section 84.  Section 733.202, Florida Statutes, is

  2  amended to read:

  3         733.202  Petition.--Any interested person may petition

  4  for administration.

  5         (1)  A verified petition for administration may be

  6  filed by any interested person.

  7         (2)  The petition for administration shall contain:

  8         (a)  A statement of the interest of the petitioner, the

  9  petitioner's name and address, and the name and office address

10  of his or her attorney.

11         (b)  The name, last known address, social security

12  number, and date and place of death of the decedent and the

13  state and county of the decedent's domicile.

14         (c)  So far as is known, the names and addresses of the

15  beneficiaries and the dates of birth of any who are minors.

16         (d)  A statement showing venue.

17         (e)  The priority under part III of the person whose

18  appointment as the personal representative is sought.

19         (f)  A statement of the approximate value and nature of

20  the assets so the clerk can ascertain the amount of the filing

21  fee and the court can determine the amount of any bond

22  authorized by this code.

23         (3)  If the decedent was a nonresident of this state,

24  the petition shall state whether domiciliary proceedings are

25  pending in another state or country, if known, and, if so, the

26  name and address of the foreign personal representative and

27  the court issuing letters.

28         (4)  In an intestate estate, the petition shall:

29         (a)  State that after the exercise of reasonable

30  diligence the petitioner is unaware of any unrevoked wills or

31  codicils or, if the petitioner is aware of any unrevoked wills

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  1  or codicils, why the wills or codicils are not being probated,

  2  or

  3         (b)  Otherwise give the facts concerning the will or

  4  codicil.

  5         (5)  In a testate estate, the petition shall:

  6         (a)  Identify all unrevoked wills and codicils being

  7  presented for probate.

  8         (b)  State that the petitioner is unaware of any other

  9  unrevoked will or codicil or, if the petitioner is aware of

10  any other unrevoked will or codicil, why the other will or

11  codicil is not being probated.

12         (c)  State that the original of the decedent's last

13  will is in the possession of the court or accompanies the

14  petition or that an authenticated copy of a will probated in

15  another jurisdiction accompanies the petition.

16         Section 85.  Section 733.203, Florida Statutes, is

17  repealed.

18         Section 86.  Subsection (2) of section 733.204, Florida

19  Statutes, is amended to read:

20         733.204  Probate of a will written in a foreign

21  language.--

22         (2)  In admitting the will to probate, the court shall

23  establish its correct English translation.  If the original

24  will is not or cannot be filed, a photographic copy of the

25  original will shall be filed.  At any time during the

26  administration any interested person may have the correctness

27  of the translation, or any part, redetermined after formal

28  notice to all other interested persons. No personal

29  representative who complies in good faith with the English

30  translation of the will as may then be established by the

31  

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  1  court shall thereafter be held liable for doing as a result of

  2  having done so.

  3         Section 87.  Section 733.205, Florida Statutes, is

  4  amended to read:

  5         733.205  Probate of notarial will.--

  6         (1)  When a copy of a notarial will in the possession

  7  of a notary entitled to its custody in a foreign state or

  8  country, the laws of which state or country require that the

  9  will remain in the custody of the such notary, duly

10  authenticated by the notary, whose official position,

11  signature, and seal of office are further authenticated by an

12  American consul, vice consul, or other American consular

13  officer within whose jurisdiction the notary is a resident, is

14  presented to the court, it may be admitted to probate if the

15  original could have been admitted to probate in this state.

16         (2)  The duly authenticated copy shall be prima facie

17  evidence of its purported execution and of the facts stated in

18  the certificate in compliance with subsection (1).

19         (3)  Any interested person notified may oppose the

20  probate of such a notarial will or may petition for revocation

21  of probate of such a notarial will, as in the case of original

22  probate of a will in this state.

23         Section 88.  Subsection (3) of section 733.206, Florida

24  Statutes, is amended to read:

25         733.206  Probate of will of resident after foreign

26  probate.--

27         (3)  Any interested person may oppose the probate of

28  the will, or may petition for revocation of the probate of the

29  will, as in the case of the original probate of a will in this

30  state.

31  

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  1         Section 89.  Section 733.207, Florida Statutes, is

  2  amended to read:

  3         733.207  Establishment and probate of lost or destroyed

  4  will.--Any interested person may establish the full and

  5  precise terms of a lost or destroyed will and offer the will

  6  for probate.

  7         (1)  The establishment and probate of a lost or

  8  destroyed will shall be in one proceeding.  The court shall

  9  recite, and thereby establish and preserve, the full and

10  precise terms and provisions of the will in the order

11  admitting it to probate.

12         (2)  The petition for probate of a lost or destroyed

13  will shall contain a copy of the will or its substance. The

14  testimony of each witness must be reduced to writing and filed

15  and shall be evidence in any contest of the will if the

16  witness has died or moved from the state.

17         (3)  No lost or destroyed will shall be admitted to

18  probate unless formal notice has been given to those who, but

19  for the will, would be entitled to the property thereby

20  devised.  The specific content of the will must be clearly and

21  distinctly proved by the testimony of two disinterested

22  witnesses, or, if a correct copy is provided, it shall be

23  proved by one disinterested witness.

24         Section 90.  Section 733.208, Florida Statutes, is

25  amended to read:

26         733.208  Discovery of later will.--On the discovery of

27  a later will or codicil expressly or impliedly revoking the

28  probated will in whole or in part, pending or during

29  administration, any interested person may petition to revoke

30  the probate of the earlier will or to probate the later will

31  or codicil offer the later will for probate.  The proceedings

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  1  shall be similar to those for revocation of probate.  No later

  2  will or codicil may be offered after the testate or intestate

  3  estate has been completely administered and the personal

  4  representative discharged closing of the estate.

  5         Section 91.  Section 733.209, Florida Statutes, is

  6  amended to read:

  7         733.209  Estates of missing persons.--Any interested

  8  person may petition to administer the estate of a missing

  9  person; however, no personal representative shall be appointed

10  until the court determines that the missing person is dead.

11  The estates of missing persons shall be administered in the

12  same manner as other estates.  A petition for administration

13  of the estate shall request entry of an order declaring the

14  death of a missing person prior to appointing a personal

15  representative and commencing administration.

16         Section 92.  Section 733.212, Florida Statutes, is

17  amended to read:

18         733.212  Notice of administration; filing of objections

19  and claims.--

20         (1)  The personal representative shall promptly publish

21  a notice of administration.  The notice shall contain the name

22  of the decedent, the file number of the estate, the

23  designation and address of the court in which the proceedings

24  are pending, the name and address of the personal

25  representative, and the name and address of the personal

26  representative's attorney and state the date of first

27  publication. The notice shall require all interested persons

28  to file with the court:

29         (a)  All claims against the estate within the time

30  periods set forth in s. 733.702, or be forever barred.

31  

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  1         (b)  Any objection by an interested person on whom

  2  notice was served that challenges the validity of the will,

  3  the qualifications of the personal representative, venue, or

  4  jurisdiction of the court within the later of 3 months after

  5  the date of the first publication of the notice or 30 days

  6  after the date of service of a copy of the notice on the

  7  objecting person.

  8         (2)  Publication shall be once a week for 2 consecutive

  9  weeks, two publications being sufficient, in a newspaper

10  published in the county where the estate is administered or,

11  if there is no newspaper published in the county, in a

12  newspaper of general circulation in that county.

13         (1)(3)  The personal representative shall promptly

14  serve a copy of the notice of administration on the following

15  persons who are known to the personal representative:

16         (a)  The decedent's surviving spouse;

17         (b)  Beneficiaries; and

18         (c)  The trustee of any trust described in s.

19  733.707(3); and, of which the decedent was grantor

20         (d)  Persons who may be entitled to exempt property,

21  

22  in the manner provided for service of formal notice, unless

23  served under s. 733.2123.  The personal representative may

24  similarly serve a copy of the notice on any devisees under a

25  known prior will or heirs or others who claim or may claim an

26  interest in the estate.

27         (2)  The notice shall state the name of the decedent,

28  the file number of the estate, the designation and address of

29  the court in which the proceedings are pending, whether the

30  estate is testate or intestate, and, if testate, the date of

31  the will and any codicils, the name and address of the

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  1  personal representative, and the name and address of the

  2  personal representative's attorney.  The notice shall state

  3  that interested persons are required to file with the court

  4  any objection by an interested person on whom the notice was

  5  served which challenges the validity of the will, the

  6  qualifications of the personal representative, venue, or

  7  jurisdiction of the court within 3 months after the date of

  8  service of a copy of the notice of administration on the

  9  objecting person.

10         (3)  Any interested person on whom a copy of the notice

11  of administration was served must object to the validity of

12  the will, the qualifications of the personal representative,

13  venue, or jurisdiction of the court by filing a petition or

14  other pleading requesting relief in accordance with the

15  Florida Probate Rules within 3 months after the date of

16  service of a copy of the notice of administration on the

17  objecting person or those objections are forever barred. The

18  appointment of a personal representative or a successor

19  personal representative shall not extend or renew the period

20  for filing objections under this section, unless a new will or

21  codicil is admitted.

22         (4)(a)  The personal representative shall promptly make

23  a diligent search to determine the names and addresses of

24  creditors of the decedent who are reasonably ascertainable and

25  shall serve on those creditors a copy of the notice within 3

26  months after the first publication of the notice. Under s.

27  409.9101, the Agency for Health Care Administration is

28  considered a reasonably ascertainable creditor in instances

29  where the decedent had received Medicaid assistance for

30  medical care after reaching 55 years of age. Impracticable and

31  extended searches are not required.  Service is not required

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  1  on any creditor who has filed a claim as provided in this

  2  part; a creditor whose claim has been paid in full; or a

  3  creditor whose claim is listed in a personal representative's

  4  timely proof of claim if the personal representative notified

  5  the creditor of that listing.

  6         (4)(b)  The personal representative is not individually

  7  liable to any person for giving notice under this section

  8  subsection, regardless of whether it is later determined that

  9  such notice was not required by this section.  The service of

10  notice in accordance with this section subsection shall not be

11  construed as conferring any right admitting the validity or

12  enforceability of a claim.

13         (5)(c)  If the personal representative in good faith

14  fails to give notice required by this section subsection, the

15  personal representative is not liable to any person for the

16  failure. Liability, if any, for the failure in such a case is

17  on the estate.

18         (5)  Objections under paragraph (1)(b), by persons on

19  whom notice was served, that are not filed within the later of

20  3 months after the date of first publication of the notice or

21  30 days after the date of service of a copy of the notice on

22  the objecting person are forever barred.

23         (6)  If a will or codicil is subsequently admitted to

24  probate, the personal representative shall promptly serve a

25  copy of a new notice of administration as required for an

26  initial will admission. Claims under paragraph (1)(a) are

27  barred as provided in s. 733.702.

28         Section 93.  Section 733.2121, Florida Statutes, is

29  created to read:

30         733.2121  Notice to creditors; filing of claims.--

31  

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  1         (1)  Unless creditors' claims are otherwise barred by

  2  s. 733.710, the personal representative shall promptly publish

  3  a notice to creditors.  The notice shall contain the name of

  4  the decedent, the file number of the estate, the designation

  5  and address of the court in which the proceedings are pending,

  6  the name and address of the personal representative, the name

  7  and address of the personal representative's attorney, and the

  8  date of first publication.  The notice shall state that

  9  creditors must file claims against the estate with the court

10  within the time periods set forth in ss. 733.702 and 733.710,

11  or be forever barred.

12         (2)  Publication shall be once a week for 2 consecutive

13  weeks, in a newspaper published in the county where the estate

14  is administered or, if there is no newspaper published in the

15  county, in a newspaper of general circulation in that county.

16         (3)(a)  The personal representative shall promptly make

17  a diligent search to determine the names and addresses of

18  creditors of the decedent who are reasonably ascertainable,

19  even if the claims are unmatured, contingent, or unliquidated,

20  and shall promptly serve a copy of the notice on those

21  creditors.  Impracticable and extended searches are not

22  required.  Service is not required on any creditor who has

23  filed a claim as provided in this part, whose claim has been

24  paid in full, or whose claim is listed in a personal

25  representative's timely filed proof of claim.

26         (b)  The personal representative is not individually

27  liable to any person for giving notice under this section,

28  even if it is later determined that notice was not required.

29  The service of notice to creditors in accordance with this

30  section shall not be construed as admitting the validity or

31  enforceability of a claim.

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  1         (c)  If the personal representative in good faith fails

  2  to give notice required by this section, the personal

  3  representative is not liable to any person for the failure.

  4  Liability, if any, for the failure is on the estate.

  5         (d)  If a decedent at the time of death was 55 years of

  6  age or older, the personal representative shall promptly serve

  7  a copy of the notice to creditors on the Agency for Health

  8  Care Administration within 3 months after the first

  9  publication of the notice to creditors, unless the agency has

10  already filed a statement of claim in the estate proceedings.

11         (e)  If the Department of Revenue has not previously

12  been served with a copy of the notice to creditors, then

13  service of the inventory on the Department of Revenue shall be

14  the equivalent of service of a copy of the notice to

15  creditors.

16         (4)  Claims are barred as provided in ss. 733.702 and

17  733.710.

18         Section 94.  Section 733.2123, Florida Statutes, is

19  amended to read:

20         733.2123  Adjudication before issuance of letters.--A

21  petitioner may serve formal notice of the his or her petition

22  for administration on interested persons. A copy of the will

23  offered for proposed to be admitted to probate shall be

24  attached to the notice. No person who is served with formal

25  notice of the petition for administration prior to the

26  issuance of letters or who has waived notice may challenge the

27  validity of the will, testacy of the decedent, qualifications

28  of the personal representative, venue, or jurisdiction of the

29  court, except in connection with the proceedings before

30  issuance of letters.

31  

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  1         Section 95.  Section 733.213, Florida Statutes, is

  2  amended to read:

  3         733.213  Probate as prerequisite to judicial petition

  4  for construction of will.--A will may not be construed until

  5  it has been admitted to probate No pleading seeking

  6  construction of a will may be maintained until the will has

  7  first been probated.

  8         Section 96.  Section 733.301, Florida Statutes, is

  9  amended to read:

10         733.301  Preference in appointment of personal

11  representative.--

12         (1)  In the granting of letters of administration, the

13  following order of preference preferences shall be observed:

14         (a)(1)  In testate estates:

15         1.(a)  The personal representative, or his or her

16  successor, nominated by the will or pursuant to a power

17  conferred in the will.

18         2.(b)  The person selected by a majority in interest of

19  the persons entitled to the estate.

20         3.(c)  A devisee under the will.  If more than one

21  devisee applies, the court may select exercise its discretion

22  in selecting the one best qualified.

23         (b)(2)  In intestate estates:

24         1.(a)  The surviving spouse.

25         2.(b)  The person selected by a majority in interest of

26  the heirs.

27         3.(c)  The heir nearest in degree.  If more than one

28  applies, the court may select exercise its discretion in

29  selecting the one best qualified for the office.

30         (2)(3)  A guardian of the property of a ward who if

31  competent would be entitled to appointment as, or to select,

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  1  the a personal representative may exercise the right to select

  2  the personal representative.

  3         (3)(4)  In either a testate or an intestate estate, if

  4  no application is made by any of the persons described named

  5  in subsection (1) or subsection (2), the court shall appoint a

  6  capable person; but no person may be appointed under this

  7  subsection:

  8         (a)  Who works for, or holds public office under, the

  9  court.

10         (b)  Who is employed by, or holds office under, any

11  judge exercising probate jurisdiction.

12         (4)(5)  After letters have been granted in either a

13  testate or an intestate estate, if a person who was entitled

14  to, and has not waived, preference over the person appointed

15  at the time of the his or her appointment and on whom formal

16  notice was not served seeks the appointment, the letters

17  granted may be revoked and the person entitled to preference

18  may have letters granted to him or her after formal notice and

19  hearing.

20         (5)(6)  After letters have been granted in either a

21  testate or an intestate estate, if any will is subsequently

22  admitted to probate the letters shall be revoked and new

23  letters granted as provided in subsection (1).

24         Section 97.  Section 733.302, Florida Statutes, is

25  amended to read:

26         733.302  Who may be appointed personal

27  representative.--Subject to the limitations in this part, any

28  person who is sui juris and who is a resident of Florida at

29  the time of the death of the person whose estate is to be

30  administered he or she seeks to administer is qualified to act

31  as personal representative in Florida.  A person who has been

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  1  convicted of a felony or who, from sickness, intemperance, or

  2  want of understanding, is incompetent to discharge the duties

  3  of a personal representative is not qualified.

  4         Section 98.  Subsections (1) and (2) of section

  5  733.305, Florida Statutes, are amended to read:

  6         733.305  Trust companies and other corporations and

  7  associations.--

  8         (1)  All trust companies incorporated under the laws of

  9  Florida the state, all state banking corporations and state

10  savings associations authorized and qualified to exercise

11  fiduciary powers in Florida, and all national banking

12  associations and federal savings and loan associations

13  authorized and qualified to exercise fiduciary powers in

14  Florida shall be entitled to act as personal representatives

15  and curators of estates.

16         (2)  When a qualified corporation has been named as a

17  personal representative in a will and subsequently thereafter

18  transfers its business and assets to, consolidates or merges

19  with, or is in any manner provided by law succeeded by,

20  another qualified corporation, on the death of the testator,

21  the successor corporation may qualify as personal

22  representative, and the court may issue letters to the

23  successor corporation unless the will provides otherwise.

24         Section 99.  Section 733.306, Florida Statutes, is

25  amended to read:

26         733.306  Effect of appointment of debtor.--The

27  appointment of a debtor as personal representative shall not

28  extinguish the debt due to the decedent.  This section shall

29  not prevent a testator from releasing a debtor by will.

30         Section 100.  Section 733.307, Florida Statutes, is

31  amended to read:

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  1         733.307  Succession of administration.--The No personal

  2  representative of the estate of a deceased personal

  3  representative is not as such shall be authorized to

  4  administer the estate of the first decedent.  On the death of

  5  a the sole or surviving personal representative, the court

  6  shall appoint a successor personal representative to complete

  7  the administration of the estate.

  8         Section 101.  Section 733.308, Florida Statutes, is

  9  amended to read:

10         733.308  Administrator ad litem.--When it is necessary

11  that an estate must be represented and the there is no

12  personal representative is unable to do so of the estate, the

13  court shall appoint an administrator ad litem without bond to

14  represent the estate in that for that particular proceeding.

15  The fact that the personal representative is seeking

16  reimbursement for claims against the decedent paid by the

17  personal representative does not require appointment of an

18  administrator ad litem.

19         Section 102.  Section 733.309, Florida Statutes, is

20  amended to read:

21         733.309  Executor de son tort.--No person shall be

22  liable to a creditor of a decedent as executor de son tort,

23  but any person taking, converting, or intermeddling with the

24  property of a decedent shall be liable to the personal

25  representative or curator, when appointed, for the value of

26  all the property so taken or converted and for all damages to

27  the estate caused by the his or her wrongful action. This

28  section shall not be construed to prevent a creditor of a

29  decedent from suing anyone in possession of property

30  fraudulently conveyed by the decedent to set aside the

31  fraudulent conveyance.

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  1         Section 103.  Section 733.310, Florida Statutes, is

  2  created to read:

  3         733.310  Personal representative not qualified.--At any

  4  time when a personal representative knows or should have known

  5  that he or she would not be qualified for appointment if

  6  application for appointment were then made, the personal

  7  representative shall promptly file and serve a notice setting

  8  forth the reasons. A personal representative who fails to

  9  comply with this section shall be personally liable for costs,

10  including attorney's fees, incurred in any removal proceeding,

11  if the personal representative is removed. This liability

12  shall be cumulative to any other provided by law.

13         Section 104.  Section 733.401, Florida Statutes, is

14  repealed.

15         Section 105.  Section 733.402, Florida Statutes, is

16  amended to read:

17         733.402  Bond of fiduciary personal representative;

18  when required; form.--

19         (1)  Unless the bond requirement has been waived by the

20  will or by the court testator waived the requirement, every

21  fiduciary person to whom letters are granted shall execute and

22  file a bond with surety, as defined in s. 45.011, to be

23  approved by the clerk without a service fee. The bond shall be

24  payable to the Governor and the Governor's successors in

25  office, conditioned on the performance of all duties as

26  personal representative according to law.  The bond must be

27  joint and several.

28         (2)  No bond executed by a personal representative or

29  curator shall be void or invalid because of an informality in

30  it or an informality or illegality in the appointment of the

31  fiduciary. The bond shall have the same force as if the

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  1  appointment had been legally made and the bond executed in

  2  proper form.

  3         (3)  The requirements of this section shall not apply

  4  to banks and trust companies authorized by law to act as

  5  personal representative.

  6         (4)  On petition by any interested person or on the

  7  court's own motion, the court may waive the requirement of

  8  filing a bond, require a bond, increase or decrease the bond,

  9  or require additional surety.

10         Section 106.  Section 733.403, Florida Statutes, is

11  amended to read:

12         733.403  Amount of bond.--

13         (1)  All bonds required by this part shall be in the

14  penal sum that the court deems sufficient after consideration

15  of the gross value of the estate, the relationship of the

16  personal representative to the beneficiaries, exempt property

17  and any family allowance, the type and nature of assets, known

18  creditors, and liens and encumbrances on the assets.

19         (2)  On petition by any interested person or on the

20  court's own motion, the court may waive the requirement of

21  filing a bond, require a personal representative or curator to

22  give bond, increase or decrease the bond, or require

23  additional surety.

24         Section 107.  Section 733.404, Florida Statutes, is

25  amended to read:

26         733.404  Liability of surety.--No surety for any

27  personal representative or curator shall be charged beyond the

28  value of the assets of an estate because of any omission or

29  mistake in pleading or of false pleading of the personal

30  representative or curator.

31  

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  1         Section 108.  Section 733.405, Florida Statutes, is

  2  amended to read:

  3         733.405  Release of surety.--

  4         (1)  Subject to the limitations of this section, on the

  5  petition of any interested person, the surety is entitled to

  6  be released from liability for the future acts and omissions

  7  of the fiduciary On petitioning the surety, or the personal

  8  representative of a surety, on the bond of any personal

  9  representative or curator shall be entitled as a matter of

10  right to be released from future liability upon the bond.

11         (2)  Pending the hearing of the petition, the court may

12  restrain the fiduciary principal from acting in his or her

13  representative capacity, except to preserve the estate.

14         (3)  On hearing, the court shall enter an order

15  prescribing the amount of the new bond for the fiduciary

16  personal representative or curator and the date when the bond

17  shall be filed. If the fiduciary principal fails to give the

18  new bond, the fiduciary he or she shall be removed at once,

19  and further proceedings shall be had as in cases of removal.

20         (4)  The original surety or sureties shall remain be

21  liable in accordance with the terms of its original bond for

22  all acts and omissions of the fiduciary which occur prior to

23  personal representative or surety until he or she has given

24  the approval of the new surety and filing and approval of the

25  bond and, after the giving of the new bond, shall remain

26  liable for all the principal's acts to the time of the filing

27  and approval of the new bond. The new surety shall be liable

28  on its bond for the principal's acts only after the filing and

29  approval of the new bond.

30         Section 109.  Section 733.406, Florida Statutes, is

31  amended to read:

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  1         733.406  Bond premium allowable as expense of

  2  administration or costs.--A personal representative Any

  3  receiver, assignee, trustee, committee, guardian, executor or

  4  administrator, or other fiduciary required by law to give bond

  5  shall pay the reasonable premium as an expense of

  6  administration as such, may include as part of his or her

  7  lawful expense such reasonable sum paid such an insurer for

  8  such suretyship not exceeding 1 percent per annum on the

  9  amount of the bond, as the head of department, board, court,

10  judge or officer by whom, or the court or body in which, he or

11  she was appointed allows; and in all actions or proceedings

12  the party entitled to recover costs may include therein such

13  reasonable sum as may have been paid such an insurer executing

14  or guaranteeing any bond or undertaking therein.

15         Section 110.  Section 733.501, Florida Statutes, is

16  amended to read:

17         733.501  Curators.--

18         (1)  When it is necessary, the court may appoint a

19  curator after and issue letters of curatorship to take charge

20  of the estate of a decedent until letters are granted.  If the

21  person entitled to letters is a resident of the county where

22  the property is situated, no curator shall be appointed until

23  formal notice is given to the person apparently so entitled to

24  letters of administration. The curator may be authorized to

25  perform any duty or function of a personal representative. If

26  there is great danger that any of the decedent's property is

27  likely to wasted, destroyed, or removed beyond the

28  jurisdiction of the court and if the appointment of a curator

29  would be delayed by giving notice, the court may appoint a

30  curator without giving notice. On appointment, the court shall

31  direct the person in possession of the effects of the decedent

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  1  to deliver them to the curator.  The order may be enforced by

  2  contempt.

  3         (2)  If there is great danger that the property or any

  4  part of it is likely to be wasted, destroyed, or removed

  5  beyond the jurisdiction of the court and if the appointment of

  6  a curator would be delayed by giving notice, the court may

  7  appoint a curator without giving notice.

  8         (3)  On special order of the court, the curator may be

  9  authorized to perform any duty or function of a personal

10  representative.

11         (2)(4)  Bond shall be required of the curator as the

12  court deems necessary to secure the property.  No bond shall

13  be required of banks and trust companies as curators.

14         (5)  The curator shall file an inventory of the

15  property within 20 days.  When the personal representative

16  qualifies, the curator shall immediately account and deliver

17  all assets of the estate in his or her hands to the personal

18  representative within 20 days, and in default shall be subject

19  to the provisions of this code relating to removal of personal

20  representatives.

21         (3)(6)  Curators shall be allowed reasonable

22  compensation for their services and the court may consider the

23  provisions of s. 733.617.

24         (4)  Curators shall be subject to removal and

25  surcharge.

26         Section 111.  Section 733.502, Florida Statutes, is

27  amended to read:

28         733.502  Resignation of personal representative.--A

29  personal representative may resign and be relieved of his or

30  her office. Notice of the petition shall be given to all

31  interested persons. Before relieving the personal

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  1  representative from his or her duties and obligations, the

  2  court shall require the personal representative to file a true

  3  and correct account of his or her administration and deliver

  4  to his or her successor or to his or her joint personal

  5  representative all of the property of the decedent and all

  6  records concerning the estate. After notice to all interested

  7  persons, the court may accept the resignation and then revoke

  8  the letters of the resigning personal representative if the

  9  interests of the estate are not jeopardized by the

10  resignation. The acceptance of the resignation, after

11  compliance with this section, shall not exonerate the any

12  personal representative or the his or her surety from

13  liability previously incurred.

14         Section 112.  Section 733.503, Florida Statutes, is

15  amended to read:

16         733.503  Appointment of successor upon

17  resignation.--When the personal representative's resignation

18  is accepted, the court shall appoint a personal representative

19  or shall appoint a curator to serve until a successor personal

20  representative is appointed If there is no joint personal

21  representative, a successor must be appointed and qualified

22  before a personal representative may be relieved of his or her

23  duties and obligations as provided in s. 733.502.

24         Section 113.  Section 733.5035, Florida Statutes, is

25  created to read:

26         733.5035  Surrender of assets after resignation.--When

27  the resignation has been accepted by the court, all estate

28  assets, records, documents, papers, and other property of or

29  concerning the estate in the resigning personal

30  representative's possession or control shall immediately be

31  surrendered to the successor fiduciary. The court may

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  1  establish the conditions and specify the assets and records,

  2  if any, that the resigning personal representative may retain

  3  until the final accounting of the resigning personal

  4  representative has been approved.

  5         Section 114.  Section 733.5036, Florida Statutes, is

  6  created to read:

  7         733.5036  Accounting and discharge following

  8  resignation.--

  9         (1)  A resigning personal representative shall file and

10  serve a final accounting of the personal representative's

11  administration.

12         (2)  After determination and satisfaction of the

13  liability, if any, of the resigning personal representative,

14  after compensation of the personal representative and the

15  attorney and other persons employed by the personal

16  representative, and upon receipt of evidence that

17  undistributed estate assets have been delivered to the

18  successor fiduciary, the personal representative shall be

19  discharged, the bond released, and the surety discharged.

20         Section 115.  Section 733.504, Florida Statutes, is

21  amended to read:

22         733.504  Causes of Removal of personal representative;

23  causes for removal.--A personal representative may be removed

24  and the his or her letters revoked for any of the following

25  causes, and the removal shall be in addition to any penalties

26  prescribed by law:

27         (1)  Adjudication of incompetency.

28         (2)  Physical or mental incapacity rendering the

29  personal representative incapable of the discharge of his or

30  her duties.

31  

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  1         (3)  Failure to comply with any order of the court,

  2  unless the order has been superseded on appeal.

  3         (4)  Failure to account for the sale of property or to

  4  produce and exhibit the assets of the estate when so required.

  5         (5)  The Wasting or maladministration of the estate.

  6         (6)  Failure to give bond or security for any purpose.

  7         (7)  Conviction of a felony.

  8         (8)  Insolvency of, or the appointment of a receiver or

  9  liquidator for, any corporate personal representative.

10         (9)  The Holding or acquiring by the personal

11  representative of conflicting or adverse interests against the

12  estate that will or may adversely interfere with the

13  administration of the estate as a whole.  This cause of

14  removal shall not apply to the surviving spouse because of the

15  exercise of the right to the elective share, family allowance,

16  or exemptions, as provided elsewhere in this code.

17         (10)  Revocation of the probate of the decedent's will

18  that authorized or designated the appointment of the such

19  personal representative.

20         (11)  Removal of domicile from Florida, if domicile was

21  a requirement of initial appointment the personal

22  representative is no longer qualified under part III of this

23  chapter.

24         (12)  The personal representative would not now be

25  entitled to appointment.

26         Section 116.  Section 733.505, Florida Statutes, is

27  amended to read:

28         733.505  Jurisdiction in removal proceedings.--A

29  petition for removal shall be filed in the court having

30  jurisdiction of the administration issuing the letters.

31  

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  1         Section 117.  Section 733.506, Florida Statutes, is

  2  amended to read:

  3         733.506  Proceedings for removal.--Proceedings for

  4  removal of a personal representative may be commenced by the

  5  court or upon the petition of an by any interested person or

  6  joint personal representative. The court shall revoke the

  7  letters of a removed personal representative. The removal of a

  8  personal representative shall not exonerate the removed

  9  personal representative or the removed personal

10  representative's surety from any liability.

11         Section 118.  Section 733.5061, Florida Statutes, is

12  created to read:

13         733.5061  Appointment of successor upon removal.--When

14  a personal representative is removed, the court shall appoint

15  a personal representative or shall appoint a curator to serve

16  until a successor personal representative is appointed.

17         Section 119.  Section 733.507, Florida Statutes, is

18  repealed.

19         Section 120.  Section 733.508, Florida Statutes, is

20  amended to read:

21         733.508  Accounting and discharge of removed personal

22  representatives upon removal.--

23         (1)  A removed personal representative shall file and

24  serve a final accounting of that personal representative's

25  administration.

26         (2)  After determination and satisfaction of the

27  liability, if any, of the removed personal representative,

28  after compensation of that personal representative and the

29  attorney and other persons employed by that personal

30  representative, and upon receipt of evidence that the estate

31  assets have been delivered to the successor fiduciary, the

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  1  removed personal representative shall be discharged, the bond

  2  released, and the surety discharged. A removed personal

  3  representative shall file a full, true, and correct account of

  4  his or her administration within 30 days after removal.

  5         Section 121.  Section 733.509, Florida Statutes, is

  6  amended to read:

  7         733.509  Surrender of assets upon removal.--Upon entry

  8  of an order removing a personal representative, the removed

  9  personal representative shall immediately deliver all estate

10  assets, records, documents, papers, and other property of or

11  concerning the estate in the removed personal representative's

12  possession or control to the remaining personal representative

13  or successor fiduciary The removed personal representative

14  shall deliver to the remaining or successor personal

15  representative all of the property of the decedent and all

16  records, documents, papers, and other property of or

17  concerning the estate.

18         Section 122.  Section 733.601, Florida Statutes, is

19  amended to read:

20         733.601  Time of accrual of duties and powers.--The

21  duties and powers of a personal representative commence upon

22  his or her appointment. The powers of a personal

23  representative relate back in time to give acts by the person

24  appointed, occurring before appointment and beneficial to the

25  estate, the same effect as those occurring after appointment

26  thereafter. Before issuance of letters, a person named

27  executor in a will may carry out written instructions of the

28  decedent relating to the decedent's body and funeral and

29  burial arrangements. A personal representative may ratify and

30  accept acts on behalf of the estate done by others when the

31  acts would have been proper for a personal representative.

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  1         Section 123.  Section 733.602, Florida Statutes, is

  2  amended to read:

  3         733.602  General duties.--

  4         (1)  A personal representative is a fiduciary who shall

  5  observe the standards of care applicable to trustees as

  6  described by s. 737.302. A personal representative is under a

  7  duty to settle and distribute the estate of the decedent in

  8  accordance with the terms of the decedent's will and this code

  9  as expeditiously and efficiently as is consistent with the

10  best interests of the estate. A personal representative shall

11  use the authority conferred upon him or her by this code, the

12  authority in the will, if any, and the authority of any order

13  of the court in proceedings to which he or she is party, for

14  the best interests of interested persons, including creditors

15  as well as beneficiaries.

16         (2)  A personal representative shall not be liable for

17  any act of administration or distribution if the act was

18  authorized at the time. Subject to other obligations of

19  administration, a probated will is authority to administer and

20  distribute the estate according to its terms. An order of

21  appointment of a personal representative is authority to

22  distribute apparently intestate assets to the heirs of the

23  decedent if, at the time of distribution, the personal

24  representative is not aware of a proceeding challenging

25  intestacy or a proceeding questioning the his or her

26  appointment or fitness to continue. Nothing in this section

27  affects the duty of the personal representative to administer

28  and distribute the estate in accordance with the rights of

29  interested persons.

30         Section 124.  Section 733.603, Florida Statutes, is

31  amended to read:

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  1         733.603  Personal representative to proceed without

  2  court order.--A personal representative shall proceed

  3  expeditiously with the settlement and distribution of a

  4  decedent's estate and, except as otherwise specified by this

  5  code or ordered by the court, shall do so without

  6  adjudication, order, or direction of the court. A personal

  7  representative may invoke the jurisdiction of the court to

  8  resolve judicial questions concerning the estate or its

  9  administration.

10         Section 125.  Section 733.604, Florida Statutes, is

11  amended to read:

12         733.604  Inventory.--

13         (1)(a)  Unless an inventory has been previously filed

14  Within 60 days after issuance of letters, a personal

15  representative who is not a curator or a successor to another

16  personal representative who has previously discharged the duty

17  shall file a verified an inventory of property of the estate,

18  listing it with reasonable detail and including for each

19  listed item its estimated fair market value at the date of the

20  decedent's death. Unless otherwise ordered by the court for

21  good cause shown, the any such inventory or amended or

22  supplementary inventory is subject to inspection only by the

23  clerk of the court, or the clerk's representative, the

24  personal representative, and the personal representative's

25  attorney, and other interested persons.

26         (b)  The initial opening of any safe-deposit box of the

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

28  the institution where the box is located and the personal

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

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

31  personal representative, each of whom must verify the contents

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

  2  representative shall file the safe-deposit box inventory with

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

  4         (2)  The personal representative shall serve a copy of

  5  the inventory on the Department of Revenue, as provided in s.

  6  199.062(4), the surviving spouse, each heir at law in an

  7  intestate estate, each residuary beneficiary in a testate

  8  estate, and any other interested person who may request it;

  9  and the personal representative shall file proof of such

10  service. The inventory shall be verified by the personal

11  representative.

12         (2)(3)  If the personal representative learns of any

13  property not included in the original inventory, or learns

14  that the estimated value or description indicated in the

15  original inventory for any item is erroneous or misleading,

16  the personal representative he or she shall file a verified

17  prepare an amended or supplementary inventory showing any the

18  estimated value of the new items and their estimated value

19  item at the date of the decedent's death, or the revised

20  estimated value or description; and the personal

21  representative shall serve a copy of the amended or

22  supplementary inventory on each person on whom a copy of the

23  inventory was served and shall file proof of such service.

24  The amended or supplementary inventory shall be verified by

25  the personal representative.

26         (3)(4)  Upon written request to the personal

27  representative, a beneficiary shall be furnished a written

28  explanation of how the inventory value for an asset was

29  determined, or, if an appraisal was obtained, a copy of the

30  appraisal, as follows:

31  

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  1         (a)  To a residuary beneficiary or heir in an intestate

  2  estate, regarding all inventoried assets.

  3         (b)  To any other beneficiary, regarding all assets

  4  distributed or proposed to be distributed to that beneficiary.

  5  Upon the written request of a beneficiary for any asset

  6  specifically devised to that beneficiary, a beneficiary for

  7  any asset received by that beneficiary in satisfaction of a

  8  general devise, or a residuary beneficiary of a intestate

  9  estate or an heir of an intestate estate, for any asset not

10  specifically devised, the personal representative shall

11  promptly furnish a written explanation of how the inventory

12  value for the asset was determined, including whether the

13  personal representative obtained an independent appraisal for

14  that asset and from whom the appraisal was obtained. The

15  personal representative must notify each beneficiary of that

16  beneficiary's rights under this subsection the right to

17  request information regarding determination of the inventory

18  value of an asset.  Neither a request nor the failure to

19  request information under this subsection affects any rights

20  of a beneficiary in subsequent proceedings concerning any

21  accounting of the personal representative or the propriety of

22  any action of the personal representative.

23         Section 126.  Section 733.605, Florida Statutes, is

24  repealed.

25         Section 127.  Section 733.6065, Florida Statutes, is

26  created to read:

27         733.6065  Opening safe-deposit box.--

28         (1)  Subject to the provisions of s. 655.936, the

29  initial opening of the decedent's safe-deposit box shall be

30  conducted in the presence of any two of the following persons:

31  an employee of the institution where the box is located, the

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  1  personal representative, or the personal representative's

  2  attorney of record.  Each person who is present must verify

  3  the contents of the box by signing a copy of the inventory

  4  under penalties of perjury.  The personal representative shall

  5  file the safe-deposit box inventory, together with a copy of

  6  the box entry record from a date which is 6 months prior to

  7  the date of death to the date of inventory, with the court

  8  within 10 days after the box is opened.  Unless otherwise

  9  ordered by the court, this inventory and the attached box

10  entry record is subject to inspection only by persons entitled

11  to inspect an inventory under s. 733.604(1).  The personal

12  representative may remove the contents of the box.

13         (2)  The right to open and examine the contents of a

14  safe-deposit box leased by a decedent, or any other documents

15  delivered by a decedent for safekeeping, and to receive items

16  as provided for in s. 655.935 are in addition to the rights

17  provided in subsection (1).

18         Section 128.  Section 733.607, Florida Statutes, is

19  amended to read:

20         733.607  Possession of estate.--

21         (1)  Except as otherwise provided by a decedent's will,

22  every personal representative has a right to, and shall take

23  possession or control of, the decedent's property, except the

24  protected homestead, but any real property or tangible

25  personal property may be left with, or surrendered to, the

26  person presumptively entitled to it unless possession of the

27  property by the personal representative will be necessary for

28  purposes of administration. The request by a personal

29  representative for delivery of any property possessed by a

30  beneficiary is conclusive evidence that the possession of the

31  property by the personal representative is necessary for the

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  1  purposes of administration, in any action against the

  2  beneficiary for possession of it. The personal representative

  3  shall take all steps reasonably necessary for the management,

  4  protection, and preservation of the estate until distribution

  5  and. He or she may maintain an action to recover possession of

  6  property or to determine the title to it.

  7         (2)  If, after providing for statutory entitlements and

  8  all devises other than residuary devises, the assets of the

  9  decedent's estate are insufficient to pay the expenses of the

10  administration and obligations of the decedent's estate and

11  enforceable claims of the decedent's creditors, the personal

12  representative is entitled to payment from the trustee of a

13  trust described in s. 733.707(3), in the amount the personal

14  representative certifies in writing to be required to satisfy

15  the such insufficiency.

16         Section 129.  Section 733.608, Florida Statutes, is

17  amended to read:

18         733.608  General power of the personal

19  representative.--

20         (1)  All real and personal property of the decedent,

21  except the protected homestead, within this state and the

22  rents, income, issues, and profits from it shall be assets in

23  the hands of the personal representative:

24         (a)(1)  For the payment of devises, debts, family

25  allowance, elective share, estate and inheritance taxes,

26  claims, charges, and expenses of the administration and

27  obligations of the decedent's estate.

28         (b)(2)  To enforce contribution and equalize

29  advancement.

30         (c)(3)  For distribution.

31  

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  1         (2)  If property that reasonably appears to the

  2  personal representative to be protected homestead is not in

  3  the possession of a person who appears to have an interest in

  4  the property, the personal representative is authorized, but

  5  not required, to take possession of that property for the

  6  limited purpose of preserving, insuring, and protecting it for

  7  the heir or devisee, pending a determination of its homestead

  8  status.  If the personal representative takes possession of

  9  that property, any rents and revenues may be collected by the

10  personal representative for the account of the heir or

11  devisee, but the personal representative shall have no duty to

12  rent or otherwise make the property productive.

13         Section 130.  Section 733.609, Florida Statutes, is

14  amended to read:

15         733.609  Improper exercise of power; breach of

16  fiduciary duty.--A personal representative's fiduciary duty is

17  the same as the fiduciary duty of a trustee of an express

18  trust and a personal representative is liable to interested

19  persons for damage or loss resulting from the breach of this

20  duty.  In all actions for breach of fiduciary duty or

21  challenging the exercise of or failure to exercise a personal

22  representative's powers, the court shall award taxable costs

23  as in chancery actions, including attorney's fees If the

24  exercise of power concerning the estate is improper or in bad

25  faith, the personal representative is liable to interested

26  persons for damage or loss resulting from a breach of his or

27  her fiduciary duty to the same extent as a trustee of an

28  express trust. In all actions challenging the proper exercise

29  of a personal representative's powers, the court shall award

30  taxable costs as in chancery actions, including attorney's

31  fees.

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  1         Section 131.  Section 733.610, Florida Statutes, is

  2  amended to read:

  3         733.610  Sale, encumbrance or transaction involving

  4  conflict of interest.--Any sale or encumbrance to the personal

  5  representative or the personal representative's his or her

  6  spouse, agent, or attorney, or any corporation or trust in

  7  which the personal representative has a substantial beneficial

  8  interest, or any transaction that is affected by a conflict of

  9  interest on the part of the personal representative, is

10  voidable by any interested person except one who has consented

11  after fair disclosure, unless:

12         (1)  The will or a contract entered into by the

13  decedent expressly authorized the transaction; or

14         (2)  The transaction is approved by the court after

15  notice to interested persons.

16         Section 132.  Section 733.611, Florida Statutes, is

17  amended to read:

18         733.611  Persons dealing with the personal

19  representative; protection.--Except as provided in s.

20  733.613(1), a person who in good faith either assists or deals

21  for value with a personal representative or deals with him or

22  her for value is protected as if the personal representative

23  acted properly exercised his or her power. The fact that a

24  person knowingly deals with the personal representative does

25  not alone require the person to inquire into the authority of

26  the personal representative existence of his or her power, the

27  limits on the power, or the propriety of its exercise.  A

28  person is not bound to see to the proper application of estate

29  assets paid or delivered to the personal representative. This

30  The protection here expressed extends to instances in which a

31  procedural irregularity or jurisdictional defect occurred in

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  1  proceedings leading to the issuance of letters, including a

  2  case in which the alleged decedent is alive.  This protection

  3  is in addition to any protection afforded by The protection

  4  here expressed is not by substitution for that provided in

  5  comparable provisions of the laws relating to commercial

  6  transactions and laws simplifying transfers of securities by

  7  fiduciaries.

  8         Section 133.  Section 733.612, Florida Statutes, is

  9  amended to read:

10         733.612  Transactions authorized for the personal

11  representative; exceptions.--Except as otherwise provided by

12  the will or court by order of court, and subject to the

13  priorities stated in s. 733.805, without court order of court,

14  a personal representative, acting reasonably for the benefit

15  of the interested persons, may properly:

16         (1)  Retain assets owned by the decedent, pending

17  distribution or liquidation, including those in which the

18  personal representative is personally interested or that are

19  otherwise improper for fiduciary trust investments.

20         (2)  Perform or compromise, or, when proper, refuse to

21  perform performance of, the decedent's contracts.  In

22  performing the decedent's enforceable contracts by the

23  decedent to convey or lease real property, among other

24  possible courses of action, the personal representative may:

25         (a)  Convey the real property for cash payment of all

26  sums remaining due or for the purchaser's note for the sum

27  remaining due, secured by a mortgage on the property land.

28         (b)  Deliver a deed in escrow, with directions that the

29  proceeds, when paid in accordance with the escrow agreement,

30  be paid as provided to the distributees of the decedent, as

31  designated in the escrow agreement.

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  1         (3)  Receive assets from fiduciaries or other sources.

  2         (4)  Invest funds as provided in ss. 518.10-518.14,

  3  considering the amount to be invested, liquidity needs of the

  4  estate, and the time until distribution will be made If funds

  5  are not needed to meet debts and expenses currently payable

  6  and are not immediately distributable, deposit or invest

  7  liquid assets of the estate, including moneys received from

  8  the sale of other assets, in federally insured

  9  interest-bearing accounts, readily marketable secured loan

10  arrangements, or other prudent investments that would be

11  reasonable for use by trustees.

12         (5)  Acquire or dispose of an asset, excluding real

13  property in this or another state, for cash or on credit and

14  at public or private sale, and manage, develop, improve,

15  exchange, partition, or change the character of an estate

16  asset.

17         (6)  Make ordinary or extraordinary repairs or

18  alterations in buildings or other structures; demolish

19  improvements; or erect new party walls or buildings.

20         (7)  Enter into a lease, as lessor or lessee, for a

21  term within, or extending beyond, the period of

22  administration, with or without an option to renew.

23         (8)  Enter into a lease or arrangement for exploration

24  and removal of minerals or other natural resources or enter

25  into a pooling or unitization agreement.

26         (9)  Abandon property when it is valueless or so

27  encumbered, or in a such condition, that it is of no benefit

28  to the estate.

29         (10)  Vote, or refrain from voting, stocks or other

30  securities in person or by general or limited proxy.

31  

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  1         (11)  Pay calls, assessments, and other sums chargeable

  2  or accruing against, or on account of, securities, unless

  3  barred by the provisions relating to claims.

  4         (12)  Hold property in the name of a nominee or in

  5  other form without disclosure of the interest of the estate,

  6  but the personal representative is liable for any act of the

  7  nominee in connection with the property so held.

  8         (13)  Insure the assets of the estate against damage

  9  or, loss, and liability and insure against personal and

10  fiduciary liability himself or herself against liability to

11  third persons.

12         (14)  Borrow money, with or without security, to be

13  repaid from the estate assets or otherwise, other than real

14  property, and advance money for the protection of the estate.

15         (15)  Extend, renew, or in any manner modify any

16  obligation owing to the estate. If the personal representative

17  holds a mortgage, security interest, or other lien upon

18  property of another person, he or she may accept a conveyance

19  or transfer of encumbered assets from the owner in

20  satisfaction of the indebtedness secured by its lien instead

21  of foreclosure.

22         (16)  Pay taxes, assessments, and other expenses

23  incident to the administration of the estate.

24         (17)  Sell or exercise stock subscription or conversion

25  rights or consent, directly or through a committee or other

26  agent, to the reorganization, consolidation, merger,

27  dissolution, or liquidation of a corporation or other business

28  enterprise.

29         (18)  Allocate items of income or expense to either

30  estate income or principal, as permitted or provided by law.

31  

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  1         (19)  Employ persons, including, but not limited to,

  2  attorneys, accountants, auditors, appraisers, investment

  3  advisers, and others, even if they are one and the same as the

  4  personal representative or are associated with the personal

  5  representative, to advise or assist the personal

  6  representative in the performance of his or her administrative

  7  duties; act upon the recommendations of those such employed

  8  persons without independent investigation; and, instead of

  9  acting personally, employ one or more agents to perform any

10  act of administration, whether or not discretionary. Any fees

11  and compensation paid to a any such person who is the same as,

12  associated with, or employed by, the personal representative

13  shall be taken into consideration in determining the personal

14  representative's compensation.

15         (20)  Prosecute or defend claims or proceedings in any

16  jurisdiction for the protection of the estate and of the

17  personal representative in the performance of his or her

18  duties.

19         (21)  Sell, mortgage, or lease any personal property of

20  the estate or any interest in it for cash, credit, or for part

21  cash or part credit, and with or without security for the

22  unpaid balance.

23         (22)  Continue any unincorporated business or venture

24  in which the decedent was engaged at the time of his or her

25  death:

26         (a)  In the same business form for a period of not more

27  than 4 months from the date of his or her appointment, if

28  continuation is a reasonable means of preserving the value of

29  the business, including good will.

30         (b)  In the same business form for any additional

31  period of time that may be approved by court order of court.

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  1         (23)  Provide for exoneration of the personal

  2  representative from personal liability in any contract entered

  3  into on behalf of the estate.

  4         (24)  Satisfy and settle claims and distribute the

  5  estate as provided in this code.

  6         (25)  Enter into agreements with the proper officer or

  7  department head, commissioner, or agent of any department of

  8  the government of the United States, waiving the statute of

  9  limitations concerning the assessment and collection of any

10  federal tax or any deficiency in a federal tax.

11         (26)  Make partial part distribution to the

12  beneficiaries of any part of the estate not necessary to

13  satisfy claims, expenses of administration, taxes, family

14  allowance, exempt property, and an elective share, in

15  accordance with the decedent's will or as authorized by

16  operation of law.

17         (27)  Execute any instruments necessary in the exercise

18  of the personal representative's powers.

19         Section 134.  Section 733.6121, Florida Statutes, is

20  amended to read:

21         733.6121  Powers of personal representatives conferred

22  by this part in relation to environmental or human health laws

23  affecting property subject to administration or to property

24  subject to administration contaminated with hazardous or toxic

25  substances; liability.--

26         (1)  Except as otherwise provided by the will or by

27  court order of court, and subject to s. 733.805, the personal

28  representative has, without court authorization, the powers

29  specified in subsection (2).

30  

31  

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  1         (2)  A personal representative has the power, acting

  2  reasonably and for the benefit of the interested persons

  3  parties:

  4         (a)  To inspect or investigate, or cause to be

  5  inspected or investigated, property subject to administration,

  6  including interests in sole proprietorships, partnerships, or

  7  corporations and any assets owned by any such a business

  8  entity for the purpose of determining compliance with an

  9  environmental law affecting that property or to respond to an

10  actual or threatened violation of an environmental law

11  affecting that property;

12         (b)  To take, on behalf of the estate, any action

13  necessary to prevent, abate, or otherwise remedy an actual or

14  potential violation of an environmental law affecting property

15  subject to administration, either before or after initiation

16  of an enforcement action by a governmental body;

17         (c)  To settle or compromise at any time any claim

18  against the estate or the personal representative that may be

19  asserted by a governmental body or private party which

20  involves the alleged violation of an environmental law

21  affecting property subject to administration over which the

22  personal representative has responsibility;

23         (d)  To disclaim any power granted by any document,

24  statute, or rule of law which, in the sole judgment of the

25  personal representative, could cause the personal

26  representative to incur personal liability, or the estate to

27  incur liability, under any environmental law;

28         (e)  To decline to serve as a personal representative,

29  or, having undertaken to serve as a personal representative,

30  to resign at any time, if the personal representative believes

31  that there is or could be a conflict of interest in his or her

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  1  fiduciary capacity and in his or her individual capacity

  2  because of potential claims or liabilities that could be

  3  asserted against it on behalf of the estate by reason of the

  4  type or condition of the assets held; or

  5         (f)  To charge against the assets of the estate the

  6  cost of any inspection, investigation, review, abatement,

  7  response, cleanup, or remedial action considered reasonable by

  8  the personal representative that this section authorizes the

  9  personal representative to take; and, in the event of the

10  closing or termination of the estate or the transfer of the

11  estate property to another personal representative, to hold

12  moneys sufficient to cover the cost of cleaning up any known

13  environmental problem.

14         (3)  A personal representative is not personally liable

15  to any beneficiary or any other party for a decrease in value

16  of assets in an estate by reason of the personal

17  representative's compliance or efforts to comply with an

18  environmental law, specifically including any reporting

19  requirement under that law.

20         (4)  A personal representative who acquires ownership

21  or control of a vessel or other property without having owned,

22  operated, or materially participated in the management of that

23  vessel or property before assuming ownership or control as

24  personal representative is not considered an owner or operator

25  for purposes of liability under chapter 376, chapter 403, or

26  any other environmental law.  A personal representative who

27  willfully, knowingly, or recklessly causes or exacerbates a

28  release or threatened release of a hazardous substance is

29  personally liable for the cost of the response, to the extent

30  that the release or threatened release is attributable to the

31  personal representative's activities.  This subsection does

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  1  not preclude the filing of claims against the assets that

  2  constitute the estate held by the personal representative or

  3  the filing of actions against the personal representative as

  4  representative of the estate in his or her representative

  5  capacity. In any such an action, an award or judgment against

  6  the personal representative must be satisfied only from the

  7  assets of the estate.

  8         (5)  Neither the acceptance by the personal

  9  representative of the property or a failure by the personal

10  representative to inspect or investigate the property creates

11  any inference of as to whether there is liability under an

12  environmental law with respect to that property.

13         (6)  For the purposes of this section, the term

14  "environmental law" means a federal, state, or local law,

15  rule, regulation, or ordinance that relates to protection of

16  the environment or human health, and the term "hazardous

17  substance" means a substance, material, or waste defined as

18  hazardous or toxic, or any contaminant, pollutant, or

19  constituent thereof, or otherwise regulated by an

20  environmental law.

21         (7)  This section applies to any estate admitted to

22  probate on or after July 1, 1995.

23         Section 135.  Section 733.613, Florida Statutes, is

24  amended to read:

25         733.613  Personal representative's right to sell real

26  property.--

27         (1)  When a personal representative of an a decedent

28  dying intestate estate, or of an estate whose testator has not

29  conferred upon him or her a power of sale or whose testator

30  has granted a power of sale but the his or her power is so

31  limited by the will or by operation of law that it cannot be

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  1  conveniently exercised, shall consider that it is for the best

  2  interest of the estate and of those interested in it that real

  3  property be sold, the personal representative may sell it at

  4  public or private sale.  No title shall pass until the sale is

  5  authorized or confirmed by the court authorizes or confirms

  6  the sale.  Petition for authorization or confirmation of sale

  7  shall set forth the reasons for the sale, a description of the

  8  property sold or to be sold, and the price and terms of the

  9  sale. Except when interested persons have joined in the

10  petition for sale of real property or have consented to the

11  sale, notice of the petition shall be given. No bona fide

12  purchaser shall be required to examine any proceedings before

13  the order of sale.

14         (2)  When a decedent's will confers specific power to

15  sell or mortgage real property or a general power to sell any

16  asset of the estate, the personal representative may sell,

17  mortgage, or lease, without authorization or confirmation of

18  court, any real property of the estate or any interest therein

19  for cash or credit, or for part cash and part credit, and with

20  or without security for unpaid balances.  The sale, mortgage,

21  or lease need not be justified by a showing of necessity, and

22  the sale pursuant to power of sale shall be valid.

23         (3)  In a sale or mortgage that occurs under a specific

24  power to sell or mortgage real property, or under a court

25  order authorizing or confirming that act, the purchaser or

26  lender takes title free of claims of creditors of the estate

27  and entitlements of estate beneficiaries, except that existing

28  mortgages or other liens against real property are not

29  affected.

30         Section 136.  Section 733.614, Florida Statutes, is

31  amended to read:

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  1         733.614  Powers and duties of successor personal

  2  representative.--A successor personal representative has the

  3  same power and duty as the original personal representative to

  4  complete the administration and distribution of the estate as

  5  expeditiously as possible, but he or she shall not exercise

  6  any power made personal to the personal representative named

  7  in the will without court approval.

  8         Section 137.  Section 733.615, Florida Statutes, is

  9  amended to read:

10         733.615  Joint personal representatives; when joint

11  action required.--

12         (1)  If two or more persons are appointed joint

13  personal representatives, and unless the will provides

14  otherwise, the concurrence of all joint personal

15  representatives appointed pursuant to a will or codicil

16  executed prior to October 1, 1987, or appointed to administer

17  an intestate estate of a decedent who died prior to October 1,

18  1987, or of a majority of joint personal representatives

19  appointed pursuant to a will or codicil executed on or after

20  October 1, 1987, or appointed to administer an the intestate

21  estate of a decedent dying on or after October 1, 1987, is

22  required on all acts connected with the administration and

23  distribution of the estate.  This restriction does not apply

24  when any joint personal representative receives and receipts

25  for property due the estate, when the concurrence required

26  under this subsection cannot readily be obtained in the time

27  reasonably available for emergency action necessary to

28  preserve the estate, or when a joint personal representative

29  has been delegated to act for the others.

30         (2)  Where action by a majority of the joint personal

31  representatives appointed is authorized, a joint personal

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  1  representative who has not joined in exercising a power is not

  2  liable to the beneficiaries or to others for the consequences

  3  of the exercise, and a dissenting joint personal

  4  representative is not liable for the consequences of an action

  5  act in which the dissenting personal representative he or she

  6  joins at the direction of the majority of the joint personal

  7  representatives, if the dissent is he or she expressed his or

  8  her dissent in writing to the other any of his or her joint

  9  personal representatives at or before the time of the action

10  joinder.

11         (3)  A person dealing with a joint personal

12  representative without actual knowledge that joint personal

13  representatives have been appointed, or if advised by a the

14  joint personal representative with whom he or she deals that

15  the joint personal representative has authority to act alone

16  for any of the reasons mentioned in subsection (1), is as

17  fully protected in dealing with that joint personal

18  representative as if that joint personal representative

19  possessed and properly exercised the power he or she purports

20  to exercise.

21         Section 138.  Section 733.616, Florida Statutes, is

22  amended to read:

23         733.616  Powers of surviving personal

24  representatives.--Unless otherwise provided by the terms of

25  the will or a court order otherwise provide, every power

26  exercisable by joint personal representatives may be exercised

27  by the one or more remaining after the appointment of one or

28  more is terminated., and If one or more, but not all,

29  nominated as joint personal representatives are not appointed,

30  those appointed may exercise all the powers granted to those

31  nominated incident to the office.

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  1         Section 139.  Section 733.617, Florida Statutes, is

  2  amended to read:

  3         733.617  Compensation of personal representative.--

  4         (1)  A personal representative shall be entitled to a

  5  commission payable from the estate assets without court order

  6  as compensation for ordinary services.  The commission shall

  7  be based on the compensable value of the estate, which is the

  8  inventory value of the probate estate assets and the income

  9  earned by the estate during administration As compensation for

10  its ordinary services, a personal representative shall be

11  entitled, without order of court unless otherwise stated, to a

12  commission payable from the estate assets.  Such commission

13  shall be based upon the probate estate's value as determined

14  finally for probate inventory purposes and as accounted for by

15  the personal representative, which value shall include all

16  property, real or personal, tangible or intangible, and all

17  income earned thereon.

18         (2)  A commission computed on the compensable value of

19  the estate is presumed to be reasonable compensation for a

20  personal representative in formal administration Upon the

21  probate estate's value as defined in subsection (1), such

22  commission shall be computed as follows:

23         (a)  At the rate of 3 percent for the first $1 million.

24         (b)  At the rate of 2.5 percent for all above $1

25  million and not exceeding $5 million.

26         (c)  At the rate of 2 percent for all above $5 million

27  and not exceeding $10 million.

28         (d)  At the rate of 1.5 percent for all above $10

29  million.

30         (3)  In addition to the previously described aforesaid

31  commission, a personal representative shall be allowed such

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  1  further compensation as is the court may deem just and

  2  reasonable for any extraordinary services including, but not

  3  limited to:

  4         (a)  The sale of real or personal property.

  5         (b)  The conduct of litigation on behalf of or against

  6  the estate.

  7         (c)  Involvement in proceedings for the adjustment or

  8  payment of any taxes.

  9         (d)  The carrying on of the decedent's business.

10         (e)  Dealing with protected homestead.

11         (f)(e)  Any other special services that which may be

12  necessary for the personal representative to perform.

13         (4)  If the a decedent's will provides that a personal

14  representative's compensation shall be based upon specific

15  criteria, other than a general reference to commissions

16  allowed by law or words or similar import, including, but not

17  limited to, rates, amounts, commissions, or reference to the

18  personal representative's regularly published schedule of fees

19  in effect at the decedent's date of death, or words of similar

20  import, then a personal representative shall be entitled to

21  compensation in accordance with that such provision.  However,

22  except for such references in the a decedent's will to the

23  personal representative's regularly published schedule of fees

24  in effect at the decedent's date of death, or words of similar

25  import, if there is no written contract with the decedent

26  regarding compensation, a personal representative may renounce

27  the provisions contained in the will and be entitled to

28  compensation under this section hereunder.  A personal

29  representative may also renounce the its right to all or any

30  part of the compensation.

31  

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  1         (5)  If the probate estate's compensable value as

  2  defined in subsection (1) is $100,000 or more, and there are

  3  two representatives, each personal representative is entitled

  4  to the full commission allowed to a sole personal

  5  representative.  If there are more than two personal

  6  representatives and the probate estate's compensable value is

  7  more than $100,000 or more, the compensation to which two

  8  would be entitled must be apportioned among the personal

  9  representatives.  The basis for such apportionment shall be

10  one full commission allowed to the personal representative who

11  has possession of and primary responsibility for

12  administration of the assets and one full commission among the

13  remaining personal representatives according to the services

14  rendered by each of them respectively.  If the probate

15  estate's compensable value is less than $100,000 and there is

16  more than one personal representative, then one full

17  commission allowed herein to a sole personal representative

18  must be apportioned among the personal representatives

19  according to the services rendered by each of them

20  respectively.

21         (6)  If the personal representative is a member of The

22  Florida Bar and has rendered legal services in connection with

23  the administration of the estate, then in addition to a fee as

24  personal representative, there also shall be allowed a fee for

25  the legal services rendered.

26         (7)  Upon petition of any interested person, the court

27  may increase or decrease the compensation for ordinary

28  services of the personal representative or award compensation

29  for extraordinary services if the facts and circumstances of

30  the particular administration warrant.  In determining

31  reasonable compensation, the court shall consider all of the

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  1  following factors, giving weight to each as it determines

  2  appropriate The compensation for a personal representative as

  3  set forth in subsections (2) and (3) may, upon petition of any

  4  interested person, be increased or decreased by the court.  In

  5  determining whether to increase or decrease the compensation

  6  for ordinary services, the court must consider each of the

  7  following factors, giving each such weight as it determines to

  8  be appropriate:

  9         (a)  The promptness, efficiency, and skill with which

10  the administration was handled by the personal representative;

11         (b)  The responsibilities assumed by and the potential

12  liabilities of the personal representative;

13         (c)  The nature and value of the assets that are

14  affected by the decedent's death;

15         (d)  The benefits or detriments resulting to the estate

16  or interested persons its beneficiaries from the personal

17  representative's services;

18         (e)  The complexity or simplicity of the administration

19  and the novelty novelties of the issues presented;

20         (f)  The personal representative's participation in tax

21  planning for the estate and the estate's beneficiaries and in

22  tax return preparation, review, or approval;

23         (g)  The nature of the probate, nonprobate, and exempt

24  assets,; the expenses of administration,; the liabilities of

25  the decedent,; and the compensation paid to other

26  professionals and fiduciaries;

27         (h)  Any delay in payment of the compensation after the

28  services were furnished; and

29         (i)  Any other relevant factors.

30         Section 140.  Section 733.6171, Florida Statutes, is

31  amended to read:

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  1         733.6171  Compensation of attorney for the personal

  2  representative.--

  3         (1)  Attorneys for personal representatives shall be

  4  entitled to reasonable compensation for their services payable

  5  from the estate assets of the estate without court order.

  6         (2)  The attorney, the personal representative, and

  7  persons bearing the impact of the compensation may agree to

  8  compensation determined in a different manner than provided in

  9  this section. Compensation may also be determined in a

10  different manner than provided in this section if the manner

11  is disclosed to the parties bearing the impact of the

12  compensation and if no objection is made as provided for in

13  the Florida Probate Rules in the petition for discharge or

14  final accounting and there is no objection filed pursuant to

15  s. 733.901.

16         (3)  Compensation provided in the following schedule

17  for ordinary services of attorneys in formal estate

18  administration is presumed to be reasonable if based on the

19  compensable upon the inventory value of the estate, which is

20  the inventory value of the probate estate assets and the

21  income earned by the estate during the administration as

22  provided in the following schedule is presumed to be

23  reasonable compensation for attorneys in formal estate

24  administration:

25         (a)  One thousand five hundred dollars for estates

26  having a value of $40,000 or less.

27         (b)  An additional $750 for estates having a value of

28  more than $40,000 and not exceeding $70,000.

29         (c)  An additional $750 for estates having a value of

30  more than $70,000 and not exceeding $100,000.

31  

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  1         (d)  For estates having a value in excess of $100,000,

  2  at the rate of 3 percent on the next $900,000.

  3         (e)  At the rate of 2.5 percent for all above $1

  4  million and not exceeding $3 million.

  5         (f)  At the rate of 2 percent for all above $3 million

  6  and not exceeding $5 million.

  7         (g)  At the rate of 1.5 percent for all above $5

  8  million and not exceeding $10 million.

  9         (h)  At the rate of 1 percent for all above $10

10  million.

11         (4)  In addition to the attorney's fees for ordinary

12  services, the attorney for the personal representative shall

13  be allowed further reasonable compensation for any

14  extraordinary service.  What is an extraordinary service may

15  vary depending on many factors, including the size of the

16  estate. Extraordinary services may include, but are not

17  limited to:

18         (a)  Involvement in a will contest, will construction,

19  a proceeding for determination of beneficiaries, a contested

20  claim, elective share proceeding, apportionment of estate

21  taxes, or any other adversarial proceeding or litigation by or

22  against the estate.

23         (b)  Representation of the personal representative in

24  audit or any proceeding for adjustment, determination, or

25  collection of any taxes.

26         (c)  Tax advice on postmortem tax planning, including,

27  but not limited to, disclaimer, renunciation of fiduciary

28  commission, alternate valuation date, allocation of

29  administrative expenses between tax returns, the QTIP or

30  reverse QTIP election, allocation of GST exemption,

31  qualification for Internal Revenue Code ss. 6166 and 303

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  1  privileges, deduction of last illness expenses, fiscal year

  2  planning, distribution planning, asset basis considerations,

  3  handling income or deductions in respect of a decedent,

  4  valuation discounts, special use and other valuation, handling

  5  employee benefit or retirement proceeds, prompt assessment

  6  request, or request for release of personal liability for

  7  payment of tax.

  8         (d)  Review of estate tax return and preparation or

  9  review of other tax returns required to be filed by the

10  personal representative.

11         (e)  Preparation of the estate's federal estate tax

12  return.  If this return is prepared by the attorney, a fee of

13  one-half of 1 percent up to a value of $10 million and

14  one-fourth of 1 percent on the value in excess of $10 million

15  of the gross estate as finally determined for federal estate

16  tax purposes, is presumed to be reasonable compensation for

17  the attorney for this service.  These fees shall include

18  services for routine audit of the return, not beyond the

19  examining agent level, if required.

20         (f)  Purchase, sale, lease, or encumbrance of real

21  property by the personal representative or involvement in

22  zoning, land use, environmental, or other similar matters.

23         (g)  Legal advice regarding carrying on of the

24  decedent's business or conducting other commercial activity by

25  the personal representative.

26         (h)  Legal advice regarding claims for damage to the

27  environment or related procedures.

28         (i)  Legal advice regarding homestead status of real

29  property or proceedings involving that status and services

30  related to protected homestead.

31  

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  1         (j)  Involvement in fiduciary, employee, or attorney

  2  compensation disputes.

  3         (k)  Proceedings involving ancillary administration of

  4  assets not subject to administration in this state.

  5         (5)  Upon petition of any interested person, the court

  6  may increase or decrease the compensation for ordinary

  7  services of the attorney or award compensation for

  8  extraordinary services if the facts and circumstances of the

  9  particular administration warrant.  In determining reasonable

10  compensation, the court shall consider all of the following

11  factors, giving such weight to each as it determines may

12  determine to be appropriate:

13         (a)  The promptness, efficiency, and skill with which

14  the administration was handled by the attorney.

15         (b)  The responsibilities assumed by, and the potential

16  liabilities of, the attorney.

17         (c)  The nature and value of the assets that are

18  affected by the decedent's death.

19         (d)  The benefits or detriments resulting to the estate

20  or interested persons its beneficiaries from the attorney's

21  services.

22         (e)  The complexity or simplicity of the administration

23  and the novelty of issues presented.

24         (f)  The attorney's participation in tax planning for

25  the estate and the estate's beneficiaries and tax return

26  preparation, or review, or and approval.

27         (g)  The nature of the probate, nonprobate, and exempt

28  assets, the expenses of administration, the and liabilities of

29  the decedent, and the compensation paid to other professionals

30  and fiduciaries.

31  

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  1         (h)  Any delay in payment of the compensation after the

  2  services were furnished.

  3         (i)  Any other relevant factors.

  4         (6)  The court may determine reasonable attorney's

  5  compensation without receiving expert testimony.  Any party

  6  may offer expert testimony after notice to interested persons.

  7  If expert testimony is offered, an expert witness fee may be

  8  awarded by the court and paid from the assets of the estate.

  9  The court may, in its discretion, direct from what part of the

10  estate it shall be paid.

11         (6)(7)  If a separate written agreement regarding

12  compensation exists between the attorney and the decedent, the

13  attorney shall furnish a copy to the personal representative

14  prior to commencement of employment, and, if employed, shall

15  promptly file and serve a copy on all interested persons.

16  Neither a separate agreement nor a provision in the will

17  suggesting or directing that the personal representative to

18  retain a specific attorney will obligate the personal

19  representative to employ the attorney or obligate the attorney

20  to accept the representation, but if the attorney who is a

21  party to the agreement or who drafted the will is employed,

22  the compensation paid shall not exceed the compensation

23  provided in the agreement or in the will.

24         (8)  Court proceedings to determine compensation, if

25  required, are a part of the estate administration process, and

26  the costs, including fees for the personal representative's

27  attorney, shall be determined by the court and paid from the

28  assets of the estate unless the court finds the request for

29  attorney's fees to be substantially unreasonable. The court

30  shall direct from which part of the estate they shall be paid.

31  

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  1         (9)  The amount and manner of determining compensation

  2  for attorneys for personal representatives must be disclosed

  3  in the final accounting, unless the disclosure is waived in

  4  writing signed by the parties bearing the impact of the

  5  compensation and filed with the court.  No such waiver shall

  6  be valid unless it contains language declaring that the

  7  waiving party has actual knowledge of the amount and manner of

  8  determining such compensation and, in addition, expressly

  9  acknowledging either one of the following two elements:

10         (a)  That the waiving party has agreed to the amount

11  and manner of determining such compensation and is waiving any

12  objections to payment of such compensation; or

13         (b)  That the waiving party has the right under

14  subsection (5) to petition the court to decrease such

15  compensation and is waiving that right.

16  

17  The requirements of this subsection shall not apply if the

18  full amount of such compensation has previously been

19  determined by order of the court after notice.  A waiver of

20  the final accounting shall not be effective if it does not

21  meet the requirements of this subsection.

22         (10)  This section shall apply to estates in which an

23  order of discharge has not been entered prior to its effective

24  date but not to those estates in which attorney's fees have

25  previously been determined by order of court after notice.

26         Section 141.  Section 733.6175, Florida Statutes, is

27  amended to read:

28         733.6175  Proceedings for review of employment of

29  agents and compensation of personal representatives and

30  employees of estate.--

31  

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  1         (1)  The court may review the propriety of the

  2  employment of any person employed by the personal

  3  representative and the reasonableness of any compensation paid

  4  to that person or to the personal representative.

  5         (2)  Court proceedings to determine reasonable

  6  compensation of the personal representative or any person

  7  employed by the personal representative, if required, are a

  8  part of the estate administration process, and the costs,

  9  including attorneys' fees, of the person assuming the burden

10  of proof of propriety of the employment and reasonableness of

11  the compensation shall be determined by the court and paid

12  from the assets of the estate unless the court finds the

13  requested compensation to be substantially unreasonable. The

14  court shall direct from which part of the estate the

15  compensation shall be paid.

16         (3)  After notice to all affected interested persons

17  and upon petition of an interested person bearing all or part

18  of the impact of the payment of compensation to the personal

19  representative or any person employed by him or her, the

20  propriety of such employment and the reasonableness of such

21  compensation or payment may be reviewed by the court. The

22  burden of proof of propriety of the such employment and the

23  reasonableness of the compensation shall be upon the personal

24  representative and the person employed by him or her. Any

25  person who is determined to have received excessive

26  compensation from an estate for services rendered may be

27  ordered to make appropriate refunds.

28         (4)  The court may determine reasonable compensation

29  for the personal representative or any person employed by the

30  personal representative without receiving expert testimony.

31  Any party may offer expert testimony after notice to

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  1  interested persons. If expert testimony is offered, a

  2  reasonable expert witness fee shall be awarded by the court

  3  and paid from the assets of the estate. The court shall direct

  4  from what part of the estate the fee shall be paid.

  5         Section 142.  Section 733.619, Florida Statutes, is

  6  amended to read:

  7         733.619  Individual liability of personal

  8  representative.--

  9         (1)  Unless otherwise provided in the contract, a

10  personal representative is not individually liable on a

11  contract, except a contract for attorney's fee, properly

12  entered into as in his or her fiduciary capacity in the

13  administration of the estate unless the personal

14  representative fails to reveal that his or her representative

15  capacity and identify the estate in the contract.

16         (2)  A personal representative is individually liable

17  for obligations arising from ownership or control of the

18  estate or for torts committed in the course of administration

19  of the estate only if he or she is personally at fault.

20         (3)  Claims based on contracts, except a contract for

21  attorney's fee, entered into by a personal representative as a

22  fiduciary in his or her fiduciary capacity, on obligations

23  arising from ownership or control of the estate, or on torts

24  committed in the course of estate administration, may be

25  asserted against the estate by proceeding against the personal

26  representative in that his or her fiduciary capacity, whether

27  or not the personal representative is individually liable

28  therefor.

29         (4)  Issues of liability as between the estate and the

30  personal representative individually may be determined in a

31  

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  1  proceeding for accounting, surcharge, or indemnification, or

  2  other appropriate proceeding.

  3         Section 143.  Section 733.701, Florida Statutes, is

  4  amended to read:

  5         733.701  Notifying creditors.--Unless creditors' claims

  6  are otherwise barred by s. 733.710 the proceedings are under

  7  chapter 734 or chapter 735, every personal representative

  8  shall cause notice to creditors of administration to be

  9  published and served under s. 733.2121 733.212.

10         Section 144.  Section 733.702, Florida Statutes, is

11  amended to read:

12         733.702  Limitations on presentation of claims.--

13         (1)  If not barred by s. 733.710, no claim or demand

14  against the decedent's estate that arose before the death of

15  the decedent, including claims of the state and any of its

16  subdivisions, even if the claims are unmatured, contingent,

17  whether due or not, direct or contingent, or liquidated or

18  unliquidated; no claim for funeral or burial expenses; no

19  claim for personal property in the possession of the personal

20  representative; and no claim for damages, including, but not

21  limited to, an action founded on fraud or another wrongful act

22  or omission of the decedent, is binding on the estate, on the

23  personal representative, or on any beneficiary unless filed in

24  the probate proceeding within the later of 3 months after the

25  time of the first publication of the notice to creditors of

26  administration or, as to any creditor required to be served

27  with a copy of the notice to creditors of administration, 30

28  days after the date of service of such copy of the notice on

29  the creditor, even though the personal representative has

30  recognized the claim or demand by paying a part of it or

31  interest on it or otherwise. The personal representative may

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  1  settle in full any claim without the necessity of the claim

  2  being filed when the settlement has been approved by the

  3  interested persons beneficiaries adversely affected according

  4  to the priorities provided in this code and when the

  5  settlement is made within the statutory time for filing

  6  claims; or, within 3 months after the first publication of the

  7  notice of administration, he or she may file a proof of claim

  8  of all claims he or she has paid or intends to pay.

  9         (2)  No cause of action heretofore or hereafter

10  accruing, including, but not limited to, an action founded

11  upon fraud or other wrongful act or omission, shall survive

12  the death of the person against whom the claim may be made,

13  whether or not an action is pending at the death of the person

14  or not, unless a the claim is filed within the time periods

15  set forth in this part.

16         (3)  Any claim not timely filed as provided in this

17  section is barred even though no objection to the claim is

18  filed on the grounds of timeliness or otherwise unless the

19  court extends the time in which the claim may be filed.  Such

20  An extension may be granted only upon grounds of fraud,

21  estoppel, or insufficient notice of the claims period.  No

22  independent action or declaratory action may be brought upon a

23  claim which was not timely filed unless such an extension has

24  been granted by the court.  If the personal representative or

25  any other interested person serves on the creditor a notice to

26  file a petition for an extension or be forever barred, the

27  creditor shall be limited to a period of 30 days from the date

28  of service of the notice in which to file a petition for

29  extension.

30         (4)  Nothing in this section affects or prevents:

31  

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  1         (a)  A proceeding to enforce any mortgage, security

  2  interest, or other lien on property of the decedent.

  3         (b)  To the limits of casualty insurance protection

  4  only, any proceeding to establish liability that of the

  5  decedent or the personal representative for which he or she is

  6  protected by the casualty insurance.

  7         (c)  The filing of a claim by the Department of Revenue

  8  subsequent to the expiration of the time for filing claims

  9  provided in subsection (1), provided it does so file within 30

10  days after the service of the inventory by the personal

11  representative on the department or, in the event an amended

12  or supplementary inventory has been prepared, within 30 days

13  after the service of the amended or supplementary inventory by

14  the personal representative on the department.

15         (c)(d)  The filing of a cross-claim or counterclaim

16  against the estate in an action instituted by the estate;

17  however, no recovery on such a cross-claim or counterclaim

18  shall exceed the estate's recovery in that such an action.

19         (5)  The Department of Revenue may file a claim against

20  the estate of a decedent for taxes due under chapter 199 after

21  the expiration of the time for filing claims provided in

22  subsection (1), if the department files its claim within 30

23  days after the service of the inventory.  Upon  filing of the

24  estate tax return with the department as provided in s.

25  198.13, or to the extent the inventory or estate tax return is

26  amended or supplemented, the department has the right to file

27  a claim or to amend its previously filed claim within 30 days

28  after service of the estate tax return, or an amended or

29  supplemented inventory or filing of an amended or supplemental

30  estate tax return, as to the additional information disclosed.

31  

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  1         (6)(5)  Nothing in this section shall extend the

  2  limitations period set forth in s. 733.710.

  3         Section 145.  Subsection (2) of section 733.703,

  4  Florida Statutes, is amended to read:

  5         733.703  Form and manner of presenting claim.--

  6         (2)  Within the time allowed by s. 733.702, the

  7  personal representative may file a proof of claim of all

  8  claims he or she has paid or intends to pay. A claimant whose

  9  claim is listed in a personal representative's proof of claim

10  filed within 3 months after the first publication of the

11  notice of administration shall be deemed to have filed a

12  statement of the claim listed.  Except as provided otherwise

13  in this part, the claim shall be treated for all other

14  purposes as if it had been filed by the claimant had filed it.

15         Section 146.  Section 733.704, Florida Statutes, is

16  amended to read:

17         733.704  Amendment of claims.--If a bona fide attempt

18  to file a claim is made by a creditor but the claim is

19  defective as to form, the court may permit the amendment of

20  the claim at any time.

21         Section 147.  Section 733.705, Florida Statutes, is

22  amended to read:

23         733.705  Payment of and objection to claims.--

24         (1)  The personal representative shall pay all claims

25  within 1 year from the date of first publication of notice to

26  creditors of administration, provided that the time shall be

27  extended with respect to claims in litigation, unmatured

28  claims, and contingent claims for the period necessary to

29  dispose of those such claims pursuant to subsections (4), (5),

30  (6), and (7), and (8).  The court may extend the time for

31  payment of any claim upon a showing of good cause.  No

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  1  personal representative shall be compelled to pay the debts of

  2  the decedent until after the expiration of 5 months from the

  3  first publication of notice to creditors of administration.

  4  If any person brings an action against a personal

  5  representative within the 5 months on any claim to which the

  6  personal representative has not filed an no objection, the

  7  plaintiff shall not receive any costs or attorneys' fees if he

  8  or she prevails, nor shall the judgment change the class of

  9  the claim for payment under this code.

10         (2)  On or before the expiration of 4 months from the

11  first publication of notice to creditors of administration or

12  within 30 days from the timely filing or amendment of a claim,

13  whichever occurs later, a personal representative or other

14  interested person may file a written objection to a claim.  An

15  objection to a claim shall contain a statement that the

16  claimant is limited to a period of 30 days from the date of

17  service of the objection within which to bring an action on

18  the claim as provided in subsection (4).  The failure to

19  include such a statement in the objection shall not affect the

20  validity of the objection but may be considered as good cause

21  for extending the time for filing an action or proceeding

22  after the objection is filed.  If an objection is filed, the

23  person filing it shall serve a copy of the objection as

24  provided by the Florida Probate Rules by registered or

25  certified mail to the address of the claimant or the

26  claimant's attorney as shown on the claim or by delivery to

27  the claimant to whose claim the person objects or the

28  claimant's attorney of record, if any, not later than 10 days

29  after the objection has been filed, and also on the personal

30  representative if the objection is filed by any interested

31  person other than the personal representative.  The failure to

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  1  serve a copy of the objection constitutes an abandonment of

  2  the objection. For good cause, the court may extend the time

  3  for filing or serving an objection to any claim or may extend

  4  the time for serving the objection.  The extension of time

  5  shall be granted only after notice. Objection to a claim

  6  constitutes an objection to an amendment of that claim unless

  7  the objection is withdrawn.

  8         (3)  If the objection is filed by a person other than

  9  the personal representative, the personal representative may

10  apply to the court for an order relieving him or her of the

11  obligation to defend the estate in an independent action or

12  for the appointment of the objector as administrator ad litem

13  to defend the action. Fees for the attorney for the

14  administrator ad litem may be awarded as provided in s.

15  733.106(3). If costs or attorney's fees are awarded from or

16  against the estate, the probate court may charge or apportion

17  that award as provided in s. 733.106(4).

18         (4)(3)  An objection by an interested person to a

19  personal representative's proof of claim shall state the

20  particular item or items to which the interested person

21  objects and shall be filed and served as provided in

22  subsection (2). Issues of liability as between the estate and

23  the personal representative individually for items paid by the

24  personal representative and thereafter listed in a personal

25  representative's proof of claim shall be determined in the

26  estate administration proceeding, in a proceeding for

27  accounting or, surcharge, or in another other appropriate

28  proceeding, whether or not an objection has been filed.  If an

29  objection to an item listed as to be paid in a personal

30  representative's proof of claim is filed and served, and the

31  personal representative has not paid the item, the other

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  1  subsections of this section shall apply as if a claim for the

  2  item had been filed by the claimant; but if the personal

  3  representative has paid the claim after listing it as to be

  4  paid, issues of liability as between the estate and the

  5  personal representative individually shall be determined in

  6  the manner provided for an item listed as paid.

  7         (5)(4)  The claimant is limited to a period of 30 days

  8  from the date of service of an objection within which to bring

  9  an independent action upon the claim, or a declaratory action

10  to establish the validity and amount of an unmatured claim

11  which is not yet due but which is certain to become due in the

12  future, or a declaratory action to establish the validity of a

13  contingent claim upon which no cause of action has accrued on

14  the date of service of an objection and that may or may not

15  become due in the future, unless an extension of this time is

16  agreed to by the personal representative in writing before it

17  expires. For good cause, the court may extend the time for

18  filing an action or proceeding after objection is filed. The

19  extension of time shall be granted only after notice. No

20  action or proceeding on the claim may shall be brought against

21  the personal representative after the time limited above, and

22  the any such claim is thereafter forever barred without any

23  court order. If an objection is filed to the claim of any

24  creditor and an action is brought by the creditor brings an

25  action to establish the his or her claim, a judgment

26  establishing the claim shall give it no priority over claims

27  of the same class to which it belongs.

28         (6)(5)  A claimant may bring an independent action or

29  declaratory action upon a claim which was not timely filed

30  pursuant to s. 733.702(1) only if the claimant has been

31  

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  1  granted an extension of time to file the claim pursuant to s.

  2  733.702(3).

  3         (7)(6)  If an unmatured claim has not become due before

  4  the time for distribution of an estate, the personal

  5  representative may prepay the full amount of principal plus

  6  accrued interest due on the claim, without discount and

  7  without penalty, regardless of any prohibition against

  8  prepayment or provision for penalty in any instrument on which

  9  the claim is founded.  If the claim is not prepaid, no order

10  of discharge may be entered until the creditor and personal

11  representative have filed an agreement disposing of the claim,

12  or in the absence of an agreement until the court provides for

13  payment by one of the following methods:

14         (a)  Requiring the personal representative to reserve

15  such assets as the court determines to be adequate to pay the

16  claim when it becomes due; in fixing the amount to be

17  reserved, the court may determine the value of any security or

18  collateral to which the creditor may resort for payment of the

19  claim and may direct the reservation, if necessary, of

20  sufficient assets to pay the claim or to pay the difference

21  between the value of any security or collateral and the amount

22  necessary to pay the claim. If the estate is insolvent, the

23  court may direct a proportionate amount to be reserved.  The

24  court shall direct that the amount reserved be retained by the

25  personal representative until the time that the claim becomes

26  due, and that so much of the reserved amount as is not used

27  for payment be distributed thereafter according to law;

28         (b)  Requiring that the claim be adequately secured by

29  a mortgage, pledge, bond, trust, guaranty, or other security,

30  as may be determined by the court, the security to remain in

31  effect until the time that the claim becomes due, and that so

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  1  much of the security or collateral as is not needed for

  2  payment be distributed thereafter according to law; or

  3         (c)  Making provisions such other provision for the

  4  disposition or satisfaction of the claim as are is equitable,

  5  and in a manner so as not to delay unreasonably the closing of

  6  the estate.

  7         (8)(7)  If no cause of action has accrued on a

  8  contingent claim before the time for distribution of an

  9  estate, no order of discharge may be entered until the

10  creditor and the personal representative have filed an

11  agreement disposing of the claim or, in the absence of an such

12  agreement, until:

13         (a)  The court determines that the claim is adequately

14  secured or that it has no value,

15         (b)  Three months from the date on which a cause of

16  action accrues upon the claim, provided that no action on the

17  claim is then pending,

18         (c)  Five years from the date of first publication of

19  notice to creditors of administration, or

20         (d)  The court provides for payment of the claim upon

21  the happening of the contingency by one of the methods

22  described in paragraph (a), paragraph (b), or paragraph (c) of

23  subsection (7) (6),

24  

25  whichever occurs first. No action or proceeding on the claim

26  may be brought against the personal representative after the

27  time limited above, and the claim is barred without court

28  order. If an objection is filed to the claim of any creditor

29  and the creditor brings an action to establish the claim, a

30  judgment establishing the claim shall give it no priority over

31  claims of the same class to which it belongs No action or

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  1  proceeding may be brought against the personal representative

  2  on the claim after the time limited above, and any such claim

  3  shall thereafter be forever barred without order of court.  If

  4  an action is brought within the time limited above, a judgment

  5  establishing the claim shall give it no priority over claims

  6  of the same class to which it belongs.

  7         (9)(8)  No interest shall be paid by the personal

  8  representative or allowed by the court on a claim until the

  9  expiration of 5 calendar months from the first publication of

10  the notice of administration, unless the claim is founded on a

11  written obligation of the decedent providing for the payment

12  of interest. Interest shall be paid by the personal

13  representative on written obligations of the decedent

14  providing for the payment of interest. On all other claims,

15  interest shall be allowed and paid beginning 5 months from the

16  first publication of the notice to creditors of

17  administration.

18         (10)(9)  The court may determine all issues concerning

19  claims or matters not requiring trial by jury.

20         (11)(10)  An order for extension of time authorized

21  under this section may be entered only in the estate

22  administration proceeding.

23         Section 148.  Section 733.707, Florida Statutes, is

24  amended to read:

25         733.707  Order of payment of expenses and

26  obligations.--

27         (1)  The personal representative shall pay the expenses

28  of the administration and obligations of the decedent's estate

29  in the following order:

30  

31  

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  1         (a)  Class 1.--Costs, expenses of administration, and

  2  compensation of personal representatives and their attorneys'

  3  fees and attorney's fees awarded under s. 733.106(3).

  4         (b)  Class 2.--Reasonable funeral, interment, and grave

  5  marker expenses, whether paid by a guardian under s.

  6  744.441(16), the personal representative, or any other person,

  7  not to exceed the aggregate of $6,000.

  8         (c)  Class 3.--Debts and taxes with preference under

  9  federal law, and claims pursuant to ss. 409.9101 and 414.28.

10         (d)  Class 4.--Reasonable and necessary medical and

11  hospital expenses of the last 60 days of the last illness of

12  the decedent, including compensation of persons attending the

13  decedent him or her.

14         (e)  Class 5.--Family allowance.

15         (f)  Class 6.--Arrearage from court-ordered child

16  support.

17         (g)  Class 7.--Debts acquired after death by the

18  continuation of the decedent's business, in accordance with s.

19  733.612(22), but only to the extent of the assets of that

20  business.

21         (h)  Class 8.--All other claims, including those

22  founded on judgments or decrees rendered against the decedent

23  during the decedent's lifetime, and any excess over the sums

24  allowed in paragraphs (b) and (d).

25         (2)  After paying any preceding class, if the estate is

26  insufficient to pay all of the next succeeding class, the

27  creditors of the latter class shall be paid ratably in

28  proportion to their respective claims.

29         (3)  Any portion of a trust with respect to which a

30  decedent who is the grantor has at the decedent's death a

31  right of revocation, as defined in paragraph (e), either alone

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  1  or in conjunction with any other person, is liable for the

  2  expenses of the administration and obligations of the

  3  decedent's estate and enforceable claims of the decedent's

  4  creditors to the extent the decedent's estate is insufficient

  5  to pay them as provided in s. 733.607(2).

  6         (a)  For purposes of this subsection, any trusts

  7  established as part of, and all payments from, either an

  8  employee annuity described in s. 403 of the Internal Revenue

  9  Code of 1986, as amended, an Individual Retirement Account, as

10  described in s. 408 of the Internal Revenue Code of 1986, as

11  amended, a Keogh (HR-10) Plan, or a retirement or other plan

12  established by a corporation which is qualified under s. 401

13  of the Internal Revenue Code of 1986, as amended, shall not be

14  considered a trust over which the decedent has a right of

15  revocation.

16         (b)  For purposes of this subsection, any trust

17  described in s. 664 of the Internal Revenue Code of 1986, as

18  amended, shall not be considered a trust over which the

19  decedent has a right of revocation.

20         (c)  This subsection shall not impair any rights an

21  individual has under a qualified domestic relations order as

22  that term is defined in s. 414(p) of the Internal Revenue Code

23  of 1986, as amended.

24         (d)  For purposes of this subsection, property held or

25  received by a trust to the extent that the property would not

26  have been subject to claims against the decedent's estate if

27  it had been paid directly to a trust created under the

28  decedent's will or other than to the decedent's estate, or

29  assets received from any trust other than a trust described in

30  this subsection, shall not be deemed assets of the trust

31  

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  1  available to for the payment of the expenses of administration

  2  of and enforceable claims against the decedent's estate.

  3         (e)  For purposes of this subsection, a "right of

  4  revocation" is a power retained by the decedent, held in any

  5  capacity, to:

  6         1.  Amend or revoke the trust and revest the principal

  7  of the trust in the decedent; or

  8         2.  Withdraw or appoint the principal of the trust to

  9  or for the decedent's benefit.

10         Section 149.  Section 733.708, Florida Statutes, is

11  amended to read:

12         733.708  Compromise.--When a proposal is made to

13  compromise any claim, whether in suit or not, by or against

14  the estate of a decedent or to compromise any question

15  concerning the distribution of a decedent's estate, the court

16  may enter an order authorizing the compromise if satisfied

17  that the compromise will be for the best interest of the

18  interested persons beneficiaries.  The order shall relieve the

19  personal representative of liability or responsibility for the

20  compromise. Claims against the estate may not be compromised

21  until after the time for filing objections to claims has

22  expired.  Notice must be given to those who have filed

23  objection to the claim proposed to be compromised.

24         Section 150.  Subsection (1) of section 733.710,

25  Florida Statutes, is amended to read:

26         733.710  Limitations on claims against estates.--

27         (1)  Notwithstanding any other provision of the code, 2

28  years after the death of a person, neither the decedent's

29  estate, the personal representative, (if any), nor the

30  beneficiaries shall be liable for any claim or cause of action

31  

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  1  against the decedent, whether or not letters of administration

  2  have been issued, except as provided in this section.

  3         Section 151.  Section 733.801, Florida Statutes, is

  4  amended to read:

  5         733.801  Delivery of devises and distributive shares.--

  6         (1)  No personal representative shall be required to

  7  pay or deliver any devise or distributive share or to

  8  surrender possession of any land to any beneficiary until the

  9  expiration of 5 months from the granting of letters.

10         (2)  Except as otherwise provided in the will, the

11  personal representative shall pay as an expense of

12  administration the reasonable expenses of storage, insurance,

13  packing, and delivery of tangible personal property to a

14  beneficiary.

15         Section 152.  Subsections (1) and (2) of section

16  733.802, Florida Statutes, are amended to read:

17         733.802  Proceedings for compulsory payment of devises

18  or distributive interest.--

19         (1)  Before final distribution, no personal

20  representative shall be compelled:

21         (a)  To pay a devise in money before the final

22  settlement of the personal representative's his or her

23  accounts,

24         (b)  To deliver specific personal property devised that

25  may have come into his or her hands, unless the personal

26  property is exempt personal property,

27         (c)  To pay all or any part of a distributive share in

28  the personal estate of a decedent, or

29         (d)  To surrender land to any beneficiary,

30  

31  

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  1  unless the beneficiary establishes files a petition setting

  2  forth the facts that entitle him or her to relief and stating

  3  that the property will not be required for the payment of

  4  debts, family allowance, estate and inheritance taxes, claims,

  5  elective share of the surviving spouse, charges, or expenses

  6  of administration or to provide for providing funds for

  7  contribution or to enforce enforcing equalization in case of

  8  advancements.

  9         (2)  An order directing the surrender of real property

10  or the delivery of personal property by the personal

11  representative to the beneficiary shall describe the property

12  to be surrendered or delivered.  The order shall be conclusive

13  in favor of bona fide purchasers for value from the

14  beneficiary or distributee as against the personal

15  representative and all other persons claiming by, through,

16  under, or against the decedent or the decedent's estate.

17         Section 153.  Section 733.803, Florida Statutes, is

18  amended to read:

19         733.803  Encumbered property; liability for

20  payment.--The specific devisee of any encumbered property

21  shall be entitled to have the encumbrance on devised property

22  paid at the expense of the residue of the estate only when the

23  will shows that such an intent.  A general direction in the

24  will to pay debts does not show that such an intent.

25         Section 154.  Section 733.805, Florida Statutes, is

26  amended to read:

27         733.805  Order in which assets abate are

28  appropriated.--

29         (1)  If a testator makes provision by his or her will,

30  or designates the Funds or property designated by the will

31  shall to be used, to pay for the payment of debts, estate and

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  1  inheritance taxes, family allowance, exempt property, elective

  2  share charges, expenses of administration, and devises, to the

  3  extent the funds or property are they shall be paid out of the

  4  funds or from the property or proceeds as provided by the will

  5  so far as sufficient.  If no provision is made or the

  6  designated any fund or property designated, or if it is

  7  insufficient, the funds and property of the estate shall be

  8  used for these such purposes, except as otherwise provided in

  9  s. 733.817 with respect to estate, inheritance, and other

10  death taxes, and to raise the shares of a pretermitted spouse

11  and children, except as otherwise provided in subsections (3)

12  and (4), in the following order:

13         (a)  Property passing by intestacy not disposed of by

14  the will.

15         (b)  Property devised to the residuary devisee or

16  devisees.

17         (c)  Property not specifically or demonstratively

18  devised.

19         (d)  Property specifically or demonstratively devised.

20         (2)  Demonstrative devises shall be classed as general

21  devises upon the failure or insufficiency of funds or property

22  out of which payment should be made, to the extent of the

23  insufficiency.  Devises to the decedent's surviving spouse,

24  given in satisfaction of, or instead of, the surviving

25  spouse's statutory rights in the estate, shall not abate until

26  other devises of the same class are exhausted.  Devises given

27  for a valuable consideration shall abate with other devises of

28  the same class only to the extent of the excess over the

29  amount of value of the consideration until all others of the

30  same class are exhausted. Except as herein provided, devises

31  shall abate equally and ratably and without preference or

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  1  priority as between real and personal property.  When property

  2  that has been specifically devised or charged with a devise is

  3  sold or used taken by the personal representative, other

  4  devisees shall contribute according to their respective

  5  interests to the devisee whose devise has been sold or used

  6  taken., and before distribution the court shall determine The

  7  amounts of the respective contributions shall be determined by

  8  the court, and they shall be paid or withheld before

  9  distribution is made.

10         (3)  Section 733.817 shall be applied before this

11  section is applied.

12         (4)  In determining the contribution required under s.

13  733.607(2), subsections (1)-(3) of this section and s.

14  737.3054(2) shall be applied as if the beneficiaries of the

15  estate and the beneficiaries of a trust described in s.

16  733.707(3), other than the estate or trust itself, were taking

17  under a common instrument.

18         Section 155.  Section 733.806, Florida Statutes, is

19  amended to read:

20         733.806  Advancement.--If a person dies intestate as to

21  all his or her estate, property that the decedent gave during

22  in his or her lifetime to an heir is treated as an advancement

23  against the heir's latter's share of the estate only if

24  declared in a contemporaneous writing by the decedent or

25  acknowledged in writing by the heir. The property advanced

26  shall be valued at the time the heir came into possession or

27  enjoyment of the property or at the time of the death of the

28  decedent, whichever first occurs. If the recipient of the

29  property does not survive the decedent, the property shall not

30  be taken into account in computing the intestate share to be

31  

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  1  received by the recipient's descendants unless the declaration

  2  or acknowledgment provides otherwise.

  3         Section 156.  Subsections (3), (4), (5), and (6) of

  4  section 733.808, Florida Statutes, are amended to read:

  5         733.808  Death benefits; disposition of proceeds.--

  6         (3)  In the event no trustee makes proper claim to the

  7  proceeds from the insurance company or other obligor within a

  8  period of 6 months after the date of the death of the insured,

  9  employee, or annuitant, or if satisfactory evidence is

10  furnished to the insurance company or such obligor within that

11  period that there is, or will be, no trustee to receive the

12  proceeds, payment shall be made by the insurance company or

13  obligor to the personal representative of the person making

14  the such designation, unless otherwise provided by agreement

15  with the insurer or other obligor during the lifetime of the

16  insured, employee, or annuitant.

17         (4)  Death benefits payable as provided in subsection

18  (1), subsection (2), or subsection (3), unless paid to a

19  personal representative under the provisions of subsection

20  (3), shall not be deemed to be part of the decedent's estate

21  of the testator or an intestate estate, and shall not be

22  subject to any obligation to pay the expenses of the

23  administration and obligations of the decedent's estate or for

24  contribution required from a trust under s. 733.607(2)

25  transfer or estate taxes, debts, or other charges enforceable

26  against the estate to any greater extent than if the such

27  proceeds were payable directly to the beneficiaries named in

28  the trust.

29         (5)  The death benefits so held in trust may be

30  commingled with any other assets that may properly come into

31  the trust.

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  1         (6)  Nothing in this section shall affect the validity

  2  of any designation of a beneficiary of proceeds previously

  3  heretofore made that designates as beneficiary the trustee of

  4  any trust established under a trust agreement or declaration

  5  of trust or by will.

  6         Section 157.  Section 733.809, Florida Statutes, is

  7  amended to read:

  8         733.809  Right of retainer.--The amount of a

  9  noncontingent indebtedness due from of a beneficiary to the

10  estate, if due, or its present value, if not due, may be

11  offset against that the beneficiary's interest. However, that,

12  but the beneficiary shall have has the benefit of any defense

13  that would be available to him or her in a direct proceeding

14  for recovery of the debt.

15         Section 158.  Section 733.810, Florida Statutes, is

16  amended to read:

17         733.810  Distribution in kind; valuation.--

18         (1)  Assets shall be distributed in kind unless:

19         (a)  A general power of sale is conferred;

20         (b)  A contrary intention is indicated by the will or

21  trust; or

22         (c)  Disposition is made otherwise under the provisions

23  of this code. Unless a general power of sale is conferred or a

24  contrary intention is indicated by the will or unless assets

25  are otherwise disposed of under the provisions of this code,

26  the distributable assets of a decedent's estate shall be

27  distributed in kind through application of the following

28  provisions:

29         (2)(a)  Any pecuniary devise, family allowance, or

30  other pecuniary share of the estate or trust or devise payable

31  in money may be satisfied by value in kind if:

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  1         (a)1.  The person entitled to the payment has not

  2  demanded cash;

  3         (b)2.  The property is distributed in kind is valued at

  4  fair market value as of the date of its distribution date; and

  5         (c)3.  No residuary devisee has requested that the

  6  asset remain a part of the residuary residue of the estate.

  7         (3)(b)  When it is not practicable to distribute

  8  undivided interests in a residuary asset property, the asset

  9  may property shall be sold converted into cash for

10  distribution.

11         (4)(2)  When the personal representative, trustee, or

12  other fiduciary under a will or trust instrument is required

13  to, or has an option, to, satisfy a pecuniary devise or

14  transfer in trust, to, or for the benefit of, the surviving

15  spouse, with an in-kind distribution assets of the estate or

16  trust in kind, at values as finally determined for federal

17  estate tax purposes, the personal representative, trustee, or

18  other fiduciary shall, unless the governing will or trust

19  instrument otherwise provides, satisfy the devise or transfer

20  in trust by distribution of assets, including cash, fairly

21  representative of the appreciated or depreciated value of all

22  property available for that distribution in satisfaction of

23  the devise or transfer in trust, taking into consideration any

24  gains and losses realized from a prior the sale, prior to

25  distribution of the marital interest, of any property not

26  devised specifically, generally, or demonstratively devised.

27         (5)(3)  With the consent of all beneficiaries affected,

28  A personal representative or a trustee is authorized to

29  distribute any distributable assets, non-pro rata among the

30  beneficiaries subject to the fiduciary's duty of impartiality

31  entitled thereto.

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  1         Section 159.  Section 733.811, Florida Statutes, is

  2  amended to read:

  3         733.811  Distribution; right or title of

  4  distributee.--If a distributee receives from a fiduciary an

  5  instrument transferring assets in kind, payment in

  6  distribution, or possession of specific property, the

  7  distributee has succeeded to the estate's interest in the

  8  assets as against all persons interested in the estate.

  9  However, the fiduciary may recover the assets or their value

10  if the distribution was improper Proof that a distributee has

11  received an instrument transferring assets in kind or payment

12  in distribution or possession of specific property from a

13  personal representative is conclusive evidence that the

14  distributee has succeeded to the interest of the estate in the

15  distributed assets, as against all persons interested in the

16  estate, but the personal representative may recover the assets

17  or their value if the distribution was improper.

18         Section 160.  Section 733.812, Florida Statutes, is

19  amended to read:

20         733.812  Improper distribution or payment; liability of

21  distributee or payee.--Unless the distribution or payment no

22  longer can be questioned because of adjudication, estoppel, or

23  limitations, A distributee of property improperly distributed

24  or paid or a claimant who was paid improperly must paid, if he

25  or she has the property, is liable to return the assets or

26  funds property improperly received, and the income from those

27  assets or interest on the funds its income since distribution

28  or payment, unless the distribution or payment cannot be

29  questioned because of adjudication, estoppel, or limitations

30  to the personal representative or to the beneficiaries

31  entitled to it. If the distributee or claimant he or she does

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  1  not have the property, its then he or she is liable to return

  2  the value of the property improperly received at the date of

  3  disposition, and its income thereon, and gain received by the

  4  distributee or claimant must be returned him or her.

  5         Section 161.  Section 733.813, Florida Statutes, is

  6  amended to read:

  7         733.813  Purchasers from distributees protected.--If

  8  property distributed in kind, or a security interest in that

  9  property therein, is acquired by a purchaser or lender for

10  value from a distributee who has received an instrument of

11  distribution or possession from the personal representative,

12  the purchaser or lender takes title free of any claims of the

13  estate and incurs no personal liability to the estate, whether

14  or not the distribution was proper.  The To be protected under

15  this provision a purchaser or lender need not inquire whether

16  a personal representative acted properly in making the

17  distribution in kind.

18         Section 162.  Section 733.814, Florida Statutes, is

19  amended to read:

20         733.814  Partition for purpose of distribution.--When

21  two or more beneficiaries heirs or devisees are entitled to

22  distribution of undivided interests in any property, the

23  personal representative or any beneficiary one or more of the

24  beneficiaries may petition the court before closing the estate

25  is closed to make partition.  After formal notice to the

26  interested beneficiaries, the court shall partition the

27  property in the same manner as provided by law for civil

28  actions of partition.  The court may direct the personal

29  representative to sell any property that cannot be partitioned

30  without prejudice to the owners and that cannot be allotted

31  equitably and conveniently be allotted to any one party.

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  1         Section 163.  Section 733.815, Florida Statutes, is

  2  amended to read:

  3         733.815  Private contracts agreements among interested

  4  persons distributees.--Subject to the rights of creditors and

  5  taxing authorities, competent interested persons may agree

  6  among themselves to alter the interests, shares, or amounts to

  7  which they are entitled under the will or under the laws of

  8  intestacy in a written contract executed by them all who are

  9  affected. The personal representative shall abide by the terms

10  of the contract agreement, subject to the personal

11  representative's his or her obligation to administer the

12  estate for the benefit of interested persons who are not

13  parties to the contract, and creditors, to pay all taxes and

14  costs of administration, and to carry out the responsibilities

15  of his or her office for the benefit of any beneficiaries of

16  the decedent who are not parties to the agreement. Personal

17  representatives are not required to see to the performance of

18  trusts if the trustee is another person who is willing to

19  accept the trust. Trustees of a testamentary trust are

20  interested persons beneficiaries for the purposes of this

21  section. Nothing in this section herein relieves trustees of

22  any duties owed to beneficiaries of trusts.

23         Section 164.  Section 733.816, Florida Statutes, is

24  amended to read:

25         733.816  Disposition of unclaimed property held by

26  personal representatives.--

27         (1)  In all cases in which there is unclaimed property

28  in the hands of a personal representative that cannot be

29  distributed or paid because of the inability to find the

30  lawful owner because of inability to find him or her or

31  because no lawful owner is known or because the lawful owner

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  1  refuses to accept the property after a reasonable attempt to

  2  distribute it and after notice to that lawful owner, the court

  3  shall order the personal representative to sell the property

  4  and deposit the proceeds and cash already in hand, after

  5  retaining those amounts provided for in subsection (4), with

  6  the clerk and receive a receipt, and the clerk shall deposit

  7  the funds in the registry of the court to be disposed of as

  8  follows:

  9         (a)  If the value of the funds is $500 or less, the

10  clerk shall post a notice for 30 days at the courthouse door

11  giving the amount involved, the name of the personal

12  representative, and the other pertinent information that will

13  put interested persons on notice.

14         (b)  If the value of the funds is over $500, the clerk

15  shall publish the notice once a month for 2 consecutive months

16  in a newspaper of general circulation in the county.

17  

18  After the expiration of 6 months from the posting or first

19  publication, the clerk shall deposit the funds with the State

20  Treasurer after deducting the clerk's his or her fees and the

21  costs of publication.

22         (2)  Upon receipt of the funds, the State Treasurer

23  shall deposit them to the credit of the State School Fund, to

24  become a part of the school fund.  All interest and all income

25  that may accrue from the money while so deposited shall belong

26  to the fund.  The funds so deposited shall constitute and be a

27  permanent appropriation for payments by the State Treasurer in

28  obedience to court orders entered as provided by subsection

29  (3).

30         (3)  Within 10 years from the date of deposit with the

31  State Treasurer, on written petition to the court that

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  1  directed the deposit of the funds and informal notice to the

  2  Department of Legal Affairs, and after proof of entitlement

  3  his or her right to them, any person entitled to the funds

  4  before or after payment to the State Treasurer and deposit as

  5  provided by subsection (1) may obtain a court an order of

  6  court directing the payment of the funds to that person him or

  7  her. All funds deposited with the State Treasurer and not

  8  claimed within 10 years from the date of deposit shall escheat

  9  to the state for the benefit of the State School Fund.

10         (4)  The personal representative depositing assets with

11  the clerk is permitted to retain from the funds in his or her

12  possession a sufficient amount to pay final costs of

13  administration chargeable to the assets, including fees

14  allowed pursuant to s. 733.617 accruing between the deposit of

15  the funds with the clerk of the court and the order of

16  discharge. Any funds so retained which are surplus shall be

17  deposited with the clerk prior to discharge of the personal

18  representative.

19         (5)(a)  If a person entitled to the funds assigns the

20  right his or her rights to receive payment or part payment to

21  an attorney or private investigative agency which is duly

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

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

24  Finance is authorized to make distribution in accordance with

25  the such assignment.

26         (b)  Payments made to an attorney or private

27  investigative agency shall be promptly deposited into a trust

28  or escrow account which is regularly maintained by the

29  attorney or private investigative agency in a financial

30  institution located in this state and authorized to accept

31  these such deposits and located in this state.

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  1         (c)  Distribution by the attorney or private

  2  investigative agency to the person entitled to the funds shall

  3  be made within 10 days following final credit of the deposit

  4  into the trust or escrow account at the financial institution,

  5  unless a party to the agreement protests the distribution in

  6  writing such distribution before it is made.

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

  8  liable for any funds distributed pursuant to this subsection,

  9  provided the such distribution is made in good faith.

10         Section 165.  Subsections (1) and (2), paragraph (a) of

11  subsection (4), paragraph (c) of subsection (5), subsection

12  (6), paragraph (a) of subsection (7), and subsection (11) of

13  section 733.817, Florida Statutes, are amended to read:

14         733.817  Apportionment of estate taxes.--

15         (1)  For purposes of this section:

16         (a)  "Fiduciary" means a person other than the personal

17  representative in possession of property included in the

18  measure of the tax who is liable to the applicable taxing

19  authority for payment of the entire tax to the extent of the

20  value of the property in his or her possession.

21         (b)  "Governing instrument" means a will, trust

22  agreement, or any other document that controls the transfer of

23  an asset on the occurrence of the event with respect to which

24  the tax is being levied.

25         (c)  "Gross estate" means the gross estate, as

26  determined by the Internal Revenue Code with respect to the

27  federal estate tax and the Florida estate tax, and as that

28  such concept is otherwise determined by the estate,

29  inheritance, or death tax laws of the particular state,

30  country, or political subdivision whose tax is being

31  apportioned.

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  1         (d)  "Included in the measure of the tax" means that

  2  for each separate tax that an interest may incur, only

  3  interests included in the measure of that particular tax are

  4  considered. The term "included in the measure of the tax" does

  5  not include any interest, whether passing under the will or

  6  not, to the extent the interest is initially deductible from

  7  the gross estate, without regard to any subsequent reduction

  8  diminution of the deduction by reason of the charge of any

  9  part of the applicable tax to the interest. The term "included

10  in the measure of the tax" does not include interests or

11  amounts that are not included in the gross estate but are

12  included in the amount upon which the applicable tax is

13  computed, such as adjusted taxable gifts with respect to the

14  federal estate tax. If an election is required for

15  deductibility, an interest is not "initially deductible"

16  unless the election for deductibility is allowed.

17         (e)  "Internal Revenue Code" means the Internal Revenue

18  Code of 1986, as amended from time to time.

19         (f)  "Net tax" means the net tax payable to the

20  particular state, country, or political subdivision whose tax

21  is being apportioned, after taking into account all credits

22  against the applicable tax except as provided in this section.

23  With respect to the federal estate tax, "net tax" is

24  determined after taking into account all credits against the

25  tax except for the credit for foreign death taxes.

26         (g)  "Nonresiduary devise" means any devise that is not

27  a residuary devise.

28         (h)  "Nonresiduary interest" in connection with a trust

29  means any interest in a trust which is not a residuary

30  interest.

31  

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  1         (i)  "Recipient" means, with respect to property or an

  2  interest in property included in the gross estate, an heir at

  3  law in an intestate estate, devisee in a testate estate,

  4  beneficiary of a trust, beneficiary of an insurance policy,

  5  annuity, or other contractual right, surviving tenant, taker

  6  as a result of the exercise or in default of the exercise of a

  7  general power of appointment, person who receives or is to

  8  receive the property or an interest in the property, or person

  9  in possession of the property, other than a creditor.

10         (j)  "Residuary devise" has the meaning set forth in s.

11  731.201(31)(30).

12         (k)  "Residuary interest," in connection with a trust,

13  means an interest in the assets of a trust which remain after

14  provision for any distribution that is to be satisfied by

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

16  sum, or statutory amount.

17         (l)  "Revocable trust" means a trust as described in s.

18  733.707(3) as defined in s. 731.201(33) created by the

19  decedent to the extent that the decedent had at his or her

20  death the power to alter, amend, or revoke the trust either

21  alone or in conjunction with any other person.

22         (m)  "State" means any state, territory, or possession

23  of the United States, the District of Columbia, and the

24  Commonwealth of Puerto Rico.

25         (n)  "Tax" means any estate tax, inheritance tax,

26  generation skipping transfer tax, or other tax levied or

27  assessed under the laws of this or any other state, the United

28  States, any other country, or any political subdivision of the

29  foregoing, as finally determined, which is imposed as a result

30  of the death of the decedent, including, without limitation,

31  the tax assessed pursuant to s. 4980A of the Internal Revenue

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  1  Code. The term also includes any interest and penalties

  2  imposed in addition to the tax.  Unless the context indicates

  3  otherwise, the term "tax" means each separate tax.

  4         (o)  "Temporary interest" means an interest in income

  5  or an estate for a specific period of time or for life or for

  6  some other period controlled by reference to extrinsic events,

  7  whether or not in trust.

  8         (p)  "Tentative Florida tax" with respect to any

  9  property means the net Florida estate tax that would have been

10  attributable to that property if no tax were payable to any

11  other state in respect of that property.

12         (q)  "Value" means the pecuniary worth of the interest

13  involved as finally determined for purposes of the applicable

14  tax after deducting any debt, expense, or other deduction

15  chargeable to it for which a deduction was allowed in

16  determining the amount of the applicable tax. A lien or other

17  encumbrance is not regarded as chargeable to a particular

18  interest to the extent that it will be paid from other

19  interests. The value of an interest shall not be reduced by

20  reason of the charge against it of any part of the tax.

21         (2)  An interest in protected homestead property shall

22  be exempt from the apportionment of taxes if such interest

23  passes to a person to whom inures the decedent's exemption

24  from forced sale under the State Constitution.

25         (4)(a)  Except as otherwise effectively directed by the

26  governing instrument, if the Internal Revenue Code including,

27  but not limited to, ss. 2032A(c)(5), 2206, 2207, 2207A, 2207B,

28  and 2603, of the Internal Revenue Code applies to apportion

29  federal tax against recipients of certain interests, all net

30  taxes, including taxes levied by the state attributable to

31  each type of interest, shall be apportioned against the

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  1  recipients of all interests of that type in the proportion

  2  that the value of each interest of that type included in the

  3  measure of the tax bears to the total of all interests of that

  4  type included in the measure of the tax.

  5         (5)  Except as provided above or as otherwise directed

  6  by the governing instrument, the net tax attributable to each

  7  interest shall be apportioned as follows:

  8         (c)  The net tax attributable to an interest in

  9  protected homestead property which is exempt from

10  apportionment pursuant to subsection (2) shall be apportioned

11  against the recipients of other interests in the estate or

12  passing under any revocable trust in the following order:

13         1.  Class I:  Recipients of interests not disposed of

14  by the decedent's will or revocable trust that which are

15  included in the measure of the federal estate tax.

16         2.  Class II:  Recipients of residuary devises and

17  residuary interests that are included in the measure of the

18  federal estate tax.

19         3.  Class III:  Recipients of nonresiduary devises and

20  nonresiduary interests that are included in the measure of the

21  federal estate tax. The net tax apportioned to a class, if

22  any, pursuant to this paragraph shall be apportioned among the

23  recipients in the class in the proportion that the value of

24  the interest of each bears to the total value of all interests

25  included in that class.

26         (6)  The personal representative or fiduciary shall not

27  be required to transfer to a recipient any property in

28  possession of the personal representative or fiduciary which

29  he or she reasonably anticipated to anticipates may be

30  necessary for the payment of taxes. Further, the personal

31  representative or fiduciary shall not be required to transfer

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  1  any property in possession of the personal representative or

  2  fiduciary to the recipient until the amount of the tax due

  3  from the recipient is paid by the recipient. If property is

  4  transferred before final apportionment of the tax, the

  5  recipient shall provide a bond or other security for his or

  6  her apportioned liability in the amount and form prescribed by

  7  the personal representative or fiduciary.

  8         (7)(a)  The personal representative may petition at any

  9  time for an order of apportionment. If no administration has

10  been commenced at any time after 90 days from the decedent's

11  death any fiduciary may petition for an order of apportionment

12  in the court in which venue would be proper for administration

13  of the decedent's estate. Formal notice of the petition for

14  order of apportionment shall be given to all interested

15  persons. At any time after 6 months from the decedent's death,

16  any recipient may petition the such court for an order of

17  apportionment.

18         (11)  Nothing in this section shall limit the right of

19  any person who has paid more than the amount of the tax

20  apportionable to that such person, calculated as if all

21  apportioned amounts would be collected, to obtain contribution

22  from those who have not paid the full amount of the tax

23  apportionable to them, calculated as if all apportioned

24  amounts would be collected, and that right is hereby

25  conferred. In any action to enforce contribution, the court

26  shall award taxable costs as in chancery actions, including

27  reasonable attorney's fees.

28         Section 166.  Section 733.901, Florida Statutes, is

29  amended to read:

30         733.901  Distribution; Final discharge.--

31  

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  1         (1)  After administration has been When a personal

  2  representative has completed the personal representative shall

  3  be discharged administration except for distribution, he or

  4  she shall file a final accounting and a petition for discharge

  5  that shall contain:

  6         (a)  A complete report of all receipts and

  7  disbursements since the date of the last annual accounting or,

  8  if none, from the commencement of administration.

  9         (b)  A statement that he or she has fully administered

10  the estate by making payment, settlement, or other disposition

11  of all claims and debts that were presented and the expenses

12  of administration.

13         (c)  The proposed distribution of the assets of the

14  estate.

15         (d)  Any prior distributions that have been made.

16         (e)  A statement that objections to this report or

17  proposed distribution of assets be filed within 30 days.

18  

19  The final accounting and petition for discharge shall be filed

20  and served on all interested persons within 12 months after

21  issuance of letters for estates not required to file a federal

22  estate tax return, otherwise 12 months from the date the

23  return is due, unless the time is extended by the court for

24  cause shown after notice to interested persons.  The petition

25  shall state the status of the estate and the reasons for the

26  extension.

27         (2)  If no objection to the accounting or petition for

28  discharge has been filed within 30 days from the date of

29  service of copies on interested persons, or if service has

30  been waived, the personal representative may distribute the

31  estate according to the plan of distribution set forth in the

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  1  petition without a court order.  The assets shall be

  2  distributed free from the claims of any interested person and,

  3  upon receipt of evidence that the estate has been properly

  4  distributed and that claims of creditors have been paid or

  5  otherwise disposed of, the court shall enter an order

  6  discharging the personal representative and releasing the

  7  surety on any bond.

  8         (3)  If an objection to the petition for discharge has

  9  been filed within the time allowed, the court shall determine

10  the plan of distribution and, upon receipt of evidence that

11  the estate has been properly distributed and that claims of

12  creditors have been paid or otherwise disposed of, the court

13  shall enter an order discharging the personal representative

14  and releasing the surety on any bond.

15         (4)  The final accounting required under subsection (1)

16  may be waived upon a filing of a consent waiver with the

17  court, by all interested persons, acknowledging that they are

18  aware of their rights and that they waive the right to have a

19  final accounting.

20         (5)  The 30-day period contained in subsection (2) may

21  be waived upon written consent of all interested persons.

22         (2)(6)  The discharge of the personal representative

23  shall release the personal representative of the estate and

24  shall bar any action against the personal representative, as

25  such or individually, and the his or her surety.

26         Section 167.  Section 733.903, Florida Statutes, is

27  amended to read:

28         733.903  Subsequent administration.--The final

29  settlement of an estate and the discharge of the personal

30  representative shall not prevent a revocation of the order of

31  discharge or the subsequent issuance of letters if other

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  1  property of the estate is discovered or if it becomes

  2  necessary that further administration of the estate be had for

  3  any cause. However, The order of discharge may not be revoked

  4  under this section based upon the discovery of a will or later

  5  will.

  6         Section 168.  Subsections (3) and (4) of section

  7  734.101, Florida Statutes, are amended to read:

  8         734.101  Foreign personal representative.--

  9         (3)  Debtors who have not received a written demand for

10  payment from a personal representative or curator appointed in

11  this state within 60 days after appointment of a personal

12  representative in any other state or country, and whose

13  property in Florida is subject to a mortgage or other lien

14  securing the debt held by the foreign personal representative,

15  may pay the foreign personal representative after the

16  expiration of 60 days from the date of his or her appointment

17  of the foreign personnel representative.  Thereafter, a

18  satisfaction of the mortgage or lien executed by the foreign

19  personal representative, with an authenticated copy of the his

20  or her letters or other evidence of authority attached, may be

21  recorded in the public records.  The satisfaction shall be an

22  effective discharge of the mortgage or lien, irrespective of

23  whether the debtor making payment had received a written

24  demand before paying the debt.

25         (4)  All persons indebted to the estate of a decedent,

26  or having possession of personal property belonging to the

27  estate, who have received no written demand from a personal

28  representative or curator appointed in this state for payment

29  of the debt or the delivery of the property are authorized to

30  pay the debt or to deliver the personal property to the

31  foreign personal representative after the expiration of 60

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  1  days from the date of his or her appointment of the foreign

  2  personnel representative.

  3         Section 169.  Section 734.102, Florida Statutes, is

  4  amended to read:

  5         734.102  Ancillary administration.--

  6         (1)  If a nonresident of this state dies leaving assets

  7  in this state, credits due him or her from residents in this

  8  state, or liens on property in this state, a personal

  9  representative specifically designated in the decedent's will

10  to administer the Florida property shall be entitled to have

11  ancillary letters issued to him or her, if qualified to act in

12  Florida. Otherwise, the foreign personal representative of the

13  decedent's estate shall be entitled to have letters issued to

14  him or her, if qualified to act in Florida.  If the foreign

15  personal representative is not qualified to act in Florida and

16  the will names an alternate or successor who is qualified to

17  act in Florida, the alternate or successor shall be entitled

18  to have letters issued to him or her. Otherwise, those

19  entitled to a majority interest of the Florida property may

20  have letters issued to a personal representative selected by

21  them who is qualified to act in Florida.  If the decedent dies

22  intestate and the foreign domiciliary personal representative

23  is not qualified to act in Florida, the order of preference

24  for appointment of a personal representative as prescribed in

25  this code shall apply.  If ancillary letters are applied for

26  by other than the domiciliary personal representative, prior

27  notice shall be given to any domiciliary personal

28  representative.

29         (2)  Ancillary administration shall be commenced as

30  provided by the Florida Probate Rules. To entitle the

31  applicant to ancillary letters, an authenticated copy of so

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  1  much of the domiciliary proceedings shall be filed as will

  2  show either:

  3         (a)  The will, petition for probate, order admitting

  4  the will to probate, and letters, if there are such; or

  5         (b)  The petition for letters and the letters.

  6         (3)  On filing the authenticated copy of a probated

  7  will, including any probated codicils, the court shall

  8  determine If the will and any the codicils are executed as

  9  required by the code, they shall be admitted to probate if

10  any, comply with s. 732.502(1) or s. 732.502(2).  If they

11  comply, the court shall admit the will and any codicils to

12  record.

13         (4)  The ancillary personal representative shall give

14  bond as do personal representatives generally.  All

15  proceedings for appointment and administration of the estate

16  shall be as similar to those in original administrations as

17  possible.

18         (5)  Unless creditors' claims are otherwise barred by

19  s. 733.710, the ancillary personal representative shall cause

20  a notice to creditors to be served and published according to

21  the requirements of chapter 733.  Claims not filed in

22  accordance with chapter 733 shall be barred as provided in s.

23  733.702.

24         (6)(5)  After the payment of all expenses of

25  administration and claims against the estate, the court may

26  order the remaining property held by the ancillary personal

27  representative transferred to the foreign domiciliary personal

28  representative or distributed to the beneficiaries heirs or

29  devisees.

30         (7)(6)  Ancillary personal representatives shall have

31  the same rights, powers, and authority as other personal

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  1  representatives in Florida to manage and settle estates; to

  2  sell, lease, or mortgage local property; and to raise funds

  3  for the payment of debts, claims, and devises in the

  4  domiciliary jurisdiction.  No property shall be sold, leased,

  5  or mortgaged to pay a debt or claim that is barred by any

  6  statute of limitation or of nonclaim of this state.

  7         Section 170.  Section 734.1025, Florida Statutes, is

  8  amended to read:

  9         734.1025  Nonresident decedent's testate estate with

10  property not exceeding $50,000 $25,000 in this state;

11  determination of claims.--

12         (1)  When a nonresident decedent dies testate and

13  leaves property subject to administration in this state the

14  gross value of which does not exceed $50,000 at the date of

15  death $25,000, the foreign domiciliary personal representative

16  of the estate may determine the question of claims in this

17  state before the expiration of 2 years after the decedent's

18  death may file the 2-year period provided in s. 733.710 by

19  filing in the circuit court of the county where any property

20  is located an authenticated transcript of so much of the

21  foreign domiciliary proceedings as will show the will and

22  beneficiaries of the estate, as provided in the Florida

23  Probate Rules. The court shall admit the will and any codicils

24  to probate if they comply with s. 732.502(1) or (2).:

25         (a)  In a testate estate, the probated will and all

26  probated codicils of the decedent; the order admitting them to

27  record; the letters or their equivalent; and the part of the

28  record showing the names of the devisees and heirs of the

29  decedent or an affidavit of the domiciliary personal

30  representative reciting that the names are not shown or not

31  fully disclosed by the domiciliary record and specifying the

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  1  names.  On presentation of the foregoing, the court shall

  2  admit the will and any codicils to probate if they comply with

  3  s. 732.502(1) or (2).

  4         (b)  In an intestate estate, the authenticated copy of

  5  letters of administration, or their equivalent, with the part

  6  of the record showing the names of the heirs of the decedent

  7  or an affidavit of the domiciliary personal representative

  8  supplying the names, as provided in paragraph (a). On

  9  presentation of the foregoing, the court shall order them

10  recorded.

11         (2)  After complying with the foregoing requirements,

12  The foreign domiciliary personal representative may shall

13  cause a notice to creditors to be served and published

14  according to the revelant requirements of chapter 733 s.

15  731.111, notifying all persons having claims or demands

16  against the estate to file them. Claims not filed in

17  accordance with chapter 733 shall be barred as provided in s.

18  733.702. If any claim is filed, a personal representative

19  shall be appointed as provided in the Florida Probate Rules.

20         (3)  The procedure for filing claims and objection to

21  them and for suing on them shall be the same as for other

22  estates, except as hereinafter provided.

23         (4)  If no claims are filed against the estate within

24  the time allowed, the court shall enter an order adjudging

25  that notice to creditors has been duly given and proof thereof

26  filed and that no claims have been filed against the estate or

27  that all claims have been satisfied.

28         (5)  If any claim is filed against the estate within

29  the time allowed, the court shall send to the domiciliary

30  personal representative a copy of the claim and a notice

31  setting a date for a hearing to appoint an ancillary personal

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  1  representative.  At the hearing, the court shall appoint an

  2  ancillary personal representative according to the preferences

  3  as provided in s. 733.301.

  4         (6)  If an ancillary personal representative is

  5  appointed pursuant to subsection (5), the procedure for

  6  filing, objecting to, and suing on claims shall be the same as

  7  for other estates, except that the ancillary personal

  8  representative appointed shall have not fewer than 30 days

  9  from the date of his or her appointment within which to object

10  to any claim filed.

11         (7)  The filing by domiciliary personal representatives

12  of portions of the domiciliary probate proceedings as

13  specified in this section, and the barring of claims of

14  creditors in such estates by the publication of notice to

15  creditors as set forth in this section, in all cases prior to

16  June 25, 1980, are hereby validated and confirmed.

17         Section 171.  Subsections (1) and (3) of section

18  734.104, Florida Statutes, are amended to read:

19         734.104  Foreign wills; admission to record; effect on

20  title.--

21         (1)  An authenticated copy of the will of a nonresident

22  that devises real property in this state, or any right, title,

23  or interest in the property, may be admitted to record in any

24  county of this state where the property is located at any time

25  after 2 years from the death of the decedent or at any time

26  after the domiciliary personal representative has been

27  discharged if there has been no proceeding to administer the

28  estate of the decedent in this state, provided:

29         (a)  The will was executed as required by Chapter 732

30  complies with s. 732.502 as to form and manner of execution;

31  and

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  1         (b)  The will has been admitted to probate in the

  2  proper court of any other state, territory, or country.

  3         (3)  If the court finds that the requirements of this

  4  section have been met has been complied with, it shall enter

  5  an order admitting the foreign will to record.

  6         Section 172.  Section 734.201, Florida Statutes, is

  7  amended to read:

  8         734.201  Jurisdiction by act of foreign personal

  9  representative.--A foreign personal representative submits

10  personally to the jurisdiction of the courts of this state in

11  any proceeding concerning the estate by:

12         (1)  Filing authenticated copies of the domiciliary

13  proceedings under s. 734.104; 734.103.

14         (2)  Receiving payment of money or taking delivery of

15  personal property, under s. 734.101; or.

16         (3)  Doing any act as a personal representative in this

17  state that would have given the state jurisdiction over that

18  person him or her as an individual.

19         Section 173.  Section 734.202, Florida Statutes, is

20  amended to read:

21         734.202  Jurisdiction by act of decedent.--In addition

22  to jurisdiction conferred by s. 734.201, a foreign personal

23  representative is subject to the jurisdiction of the courts of

24  this state to the same extent that the his or her decedent was

25  subject to jurisdiction immediately before death.

26         Section 174.  Section 735.101, Florida Statutes, is

27  repealed.

28         Section 175.  Section 735.103, Florida Statutes, is

29  repealed.

30         Section 176.  Section 735.107, Florida Statutes, is

31  repealed.

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  1         Section 177.  Subsection (2) of section 735.201,

  2  Florida Statutes, is amended to read:

  3         735.201  Summary administration; nature of

  4  proceedings.--Summary administration may be had in the

  5  administration of either a resident or nonresident decedent's

  6  estate, when it appears:

  7         (2)  That the value of the entire estate subject to

  8  administration in this state, less the value of property

  9  exempt from the claims of creditors, does not exceed $75,000

10  $25,000 or that the decedent has been dead for more than 2

11  years.

12         Section 178.  Section 735.203, Florida Statutes, is

13  amended to read:

14         735.203  Petition for summary administration.--

15         (1)  A petition for summary administration may be filed

16  by any beneficiary, heir at law, or person nominated as

17  personal representative in the decedent's will offered for

18  probate. and shall be signed and verified by: The petition

19  must be signed and verified by

20         (a)  the surviving spouse, if any, and any; the heirs

21  at law or beneficiaries.

22         (2)  If a person named in subsection (1) has died, is

23  incapacitated, or is a minor, or has conveyed or transferred

24  all interest in the property of the estate, then, as to that

25  person, the petition must be signed and certified by:

26         (a)  The personal representative, if any, of a deceased

27  person or, if none, the surviving spouse, if any, and the

28  beneficiaries; or

29         (b)  The guardian of an incapacitated person or a

30  minor.

31  

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  1  The grantee or transferee of any of them is authorized to sign

  2  and verify the petition instead of the beneficiary or

  3  surviving spouse.

  4         (3)  The joinder in, or consent to, a petition for

  5  summary administration is not required of a beneficiary who

  6  will receive full distributive share under the proposed

  7  distribution.  Any beneficiary not joining or consenting shall

  8  receive formal notice of the petition.  who are sui juris; and

  9  the guardians of any heirs at law or beneficiaries who are not

10  sui juris; or

11         (b)  The persons described by s. 735.209.

12         (2)  A petition for summary administration shall

13  contain, in addition to the statements required by s.

14  733.202(2)(b) and (c), the following:

15         (a)  Facts showing that petitioners are entitled to

16  summary administration as provided in s. 735.201.

17         (b)  A complete list of the assets of the estate and

18  their estimated value, together with those assets claimed to

19  be exempt.

20         (c)  A statement that the estate is not indebted or

21  that provision for payment of debts has been made.

22         (d)  A proposed schedule of distribution of all assets

23  to those entitled thereto as surviving spouse, beneficiaries,

24  or creditors.

25         Section 179.  Section 735.206, Florida Statutes, is

26  amended to read:

27         735.206  Summary administration distribution.--

28         (1)  Upon the filing of the petition for summary

29  administration, the will, if any, shall be proved in

30  accordance with chapter 733 and be admitted to probate.

31  

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  1         (2)  Prior to entry of the order of summary

  2  administration, the petitioner shall make a diligent search

  3  and reasonable inquiry for any known or reasonably

  4  ascertainable creditors, serve a copy of the petition on those

  5  creditors, and make provision for payment for those creditors

  6  to the extent that assets are available.

  7         (3)(2)  The court may enter After such hearing as the

  8  court may require, an order of summary administration may be

  9  entered allowing immediate distribution of the assets to the

10  persons entitled to them.

11         (4)(3)  The order of summary administration and

12  distribution so entered shall have the following effect:

13         (a)  Those to whom specified parts of the decedent's

14  estate, including exempt property, are assigned by the order

15  shall be entitled to receive and collect the parts and to have

16  the parts transferred to them.  They may maintain actions to

17  enforce the right.

18         (b)  Debtors of the decedent, those holding property of

19  the decedent, and those with whom securities or other property

20  of the decedent are registered are authorized and empowered to

21  comply with the order by paying, delivering, or transferring

22  to those specified in the order the parts of the decedent's

23  estate assigned to them by the order, and the persons so

24  paying, delivering, or transferring shall not be accountable

25  to anyone else for the property.

26         (c)  After the entry of the order, bona fide purchasers

27  for value from those to whom property of the decedent may be

28  assigned by the order shall take the property free of all

29  claims of creditors of the decedent and all rights of the

30  surviving spouse and all other beneficiaries heirs and

31  devisees.

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  1         (d)  Property of the decedent that is not exempt from

  2  claims of creditors and that remains in the hands of those to

  3  whom it may be assigned by the order shall continue to be

  4  liable for claims against the decedent until barred as

  5  provided in the code this law. Any known or reasonably

  6  ascertainable creditor who did not receive notice and for whom

  7  provision for payment was not made may enforce the claim and,

  8  if the creditor prevails, shall be awarded reasonable

  9  attorney's fees as an element of costs against those who

10  joined in the petition.

11         (e)  The recipients of the decedent's property under

12  petitioners for the order of summary administration shall be

13  personally liable for a pro rata share of all lawful claims

14  against the estate of the decedent, but only to the extent of

15  the value of the estate of the decedent actually received by

16  each recipient petitioner, exclusive of the property exempt

17  from claims of creditors under the constitution and statutes

18  of Florida.

19         (f)  After 2 years from the death of the decedent,

20  neither the decedent's estate nor those to whom it may be

21  assigned shall be liable for any claim against the decedent,

22  unless proceedings have been taken for the enforcement of the

23  claim.

24         (g)  Any heir or devisee of the decedent who was

25  lawfully entitled to share in the estate but who was not

26  included in the order of summary administration and

27  distribution may enforce all his or her rights in appropriate

28  proceedings against those who procured the order and, if when

29  successful, shall be awarded reasonable attorney's fees as an

30  element of costs.

31  

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  1         Section 180.  Section 735.2063, Florida Statutes, is

  2  amended to read:

  3         735.2063  Notice to creditors.--

  4         (1)  Any person who has obtained received an order of

  5  summary administration may publish a notice to creditors

  6  according to the relevant requirements of s. 733.2121 731.111,

  7  notifying all persons having claims or demands against the

  8  estate of the decedent that an order of summary administration

  9  has been entered by the court. The Such notice shall will

10  specify the total cash value of the estate and the names and

11  addresses of those to whom it has been assigned by the such

12  order. Such notice, if published, shall be published once a

13  week for 2 consecutive weeks in a newspaper published in the

14  county where such order was entered, and proof of publication

15  of such notice shall be filed with the court.

16         (2)  If proof of publication of the such notice is

17  filed with the court, all claims and demands of creditors

18  against the estate of the decedent who are not known or are

19  reasonably ascertainable shall be forever barred unless the

20  such claims and demands are filed with the court within 3

21  months after from the first publication of the such notice.

22         Section 181.  Section 735.209, Florida Statutes, is

23  repealed.

24         Section 182.  Subsection (3) of section 735.301,

25  Florida Statutes, is amended to read:

26         735.301  Disposition without administration.--

27         (3)  Any person, firm, or corporation paying,

28  delivering, or transferring property under the authorization

29  shall be forever discharged from any liability thereon.

30         Section 183.  Section 735.302, Florida Statutes, is

31  amended to read:

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  1         735.302  Income tax refunds in certain cases.--

  2         (1)  In any case when the United States Treasury

  3  Department determines that an overpayment of federal income

  4  tax exists and the person in whose favor the overpayment is

  5  determined is dead at the time the overpayment of tax is to be

  6  refunded, and irrespective of whether the decedent had filed a

  7  joint and several or separate income tax return, the amount of

  8  the overpayment, if not in excess of $2,500 $500, may be

  9  refunded as follows:

10         (a)  Directly to the surviving spouse on his or her

11  verified application; or

12         (b)  If there is no surviving spouse, to one of the

13  decedent's children who is designated in a verified

14  application purporting to be executed by all of the decedent's

15  children over the age of 14 years.

16  

17  In either event, the application must show that the decedent

18  was not indebted, that provision has been made for the payment

19  of the decedent's debts, or that the entire estate is exempt

20  from the claims of creditors under the constitution and

21  statutes of the state, and that no administration of the

22  estate, including summary administration, has been initiated

23  and that none is planned, to the knowledge of the applicant.

24         (2)  If a refund is made to the surviving spouse or

25  designated child pursuant to the application, the refund shall

26  operate as a complete discharge to the United States from

27  liability from any action, claim, or demand by any beneficiary

28  of the decedent or other person.  Nothing in This section

29  shall be construed as establishing the ownership or rights of

30  the payee any person in the refund so distributed.

31  

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  1         Section 184.  Section 737.208, Florida Statutes, is

  2  created to read:

  3         737.208  Administration pending outcome of contest or

  4  other proceeding.--

  5         (1)  Pending the outcome of a proceeding filed to

  6  determine the validity of all or part of a trust or the

  7  beneficiaries of all or part of a trust, the trustee shall

  8  proceed with the administration of the trust as if no

  9  proceeding had been commenced, except that no distribution may

10  be made to a beneficiary in contravention of the rights of

11  those persons that may be affected by the outcome of the

12  proceeding.

13         (2)  Upon motion of a party and after notice to

14  interested persons, a court may, upon good cause shown, make

15  an exception to the prohibition under subsection (1) and

16  authorize the trustee to distribute trust assets to a

17  beneficiary subject to any conditions the court, in its

18  discretion may impose, including the posting of bond by the

19  beneficiary.

20         Section 185.  Section 737.3054, Florida Statutes, is

21  amended to read:

22         737.3054  Trustee's duty to pay expenses and

23  obligations of grantor's settlor's estate.--

24         (1)  A trustee of a trust described in s. 733.707(3)

25  shall pay to the personal representative of a grantor's

26  settlor's estate any amounts that the personal representative

27  certifies in writing to the trustee are required to pay the

28  expenses of the administration and obligations of the

29  grantor's settlor's estate and the enforceable claims of the

30  settlor's creditors.  Payments made by a trustee, unless

31  otherwise provided in the trust instrument, must be charged as

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  1  expenses of the trust without a contribution from anyone.  The

  2  interests interest of all beneficiaries of such a trust are

  3  subject to the provisions of this subsection; however, the

  4  payments must be made from assets or property or the proceeds

  5  thereof, other than assets proscribed in s. 733.707(3), which

  6  are included in the grantor's settlor's gross estate for

  7  federal estate tax purposes.

  8         (2)  Unless a grantor settlor provides by will, or

  9  designates in a trust described in s. 733.707(3) the funds or

10  property passing under the a trust described in s. 733.707(3)

11  to be so used, the expenses of the administration and

12  obligations of the grantor's settlor's estate and enforceable

13  claims of the settlor's creditors must be paid from the trust

14  in the following order:

15         (a)  Property of the residue of the trust remaining

16  after all distributions that are to be satisfied by reference

17  to a specific property or type of property, fund, or sum;

18         (b)  Property that is not to be distributed from

19  specified or identified property or a specified or identified

20  item of property; and

21         (c)  Property that is to be distributed from specified

22  or identified property or a specified or identified item of

23  property.

24         (3)  Trust distributions that are to be satisfied from

25  specified or identified property must be classed as

26  distributions to be satisfied from the general assets of the

27  trust and not otherwise disposed of in the trust instrument

28  upon the failure or insufficiency of funds or property from

29  which payment should be made, to the extent of the

30  insufficiency.  Trust distributions given for valuable

31  consideration abate with other distributions of the same class

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  1  only to the extent of the excess over the value of the

  2  consideration until all others of the same class are

  3  exhausted. Except as provided in this section, trust

  4  distributions abate equally and ratably and without preference

  5  or priority between real and personal property.  When a

  6  specified or identified item of property that has been

  7  designated for distribution in the trust instrument or that is

  8  charged with a distribution is sold or taken by the trustee,

  9  other beneficiaries shall contribute according to their

10  respective interests to the beneficiary whose property has

11  been sold or taken, and before distribution the trustee shall

12  determine the amounts of the respective contributions, and

13  they must be paid or withheld before distribution is made.

14         (4)  The trustee shall pay the expenses of trust

15  administration, including compensation of trustees and their

16  attorneys, before and in preference to the expenses of the

17  administration and obligations of the grantor's settlor's

18  estate and enforceable claims of the settlor's creditors.

19         Section 186.  Section 737.306, Florida Statutes, is

20  amended to read:

21         737.306  Personal liability of trustee.--

22         (1)(a)  Unless otherwise provided in the contract, a

23  trustee is not personally liable on contracts, except

24  contracts for attorneys' fees, properly entered into in the

25  trustee's fiduciary capacity in the course of administration

26  of the trust estate unless the trustee he or she fails to

27  reveal that his or her representative capacity and identify

28  the trust estate in the contract.

29         (b)  A trustee is personally liable for obligations

30  arising from ownership or control of property of the trust

31  estate or for torts committed in the course of administration

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  1  of the trust estate only if the trustee is personally at

  2  fault.

  3         (c)  Claims based on contracts, except contracts for

  4  attorneys' fees, entered into by a trustee in his or her

  5  fiduciary capacity, on obligations arising from ownership or

  6  control of the trust estate, or on torts committed in the

  7  course of trust administration may be asserted against the

  8  trust estate by proceeding against the trustee in the

  9  trustee's his or her fiduciary capacity, whether or not the

10  trustee is personally liable.

11         (2)  Issues of liability between the trust estate and

12  the trustee individually may be determined in a proceeding for

13  accounting, surcharge, or indemnification, or in any other

14  appropriate proceeding.

15         (3)  A successor trustee is not personally liable for

16  any action taken or omitted to be taken by any prior trustee;

17  nor does any successor trustee have a duty to institute any

18  action against any prior trustee, or file any claim against

19  any prior trustee's estate, for any of the prior trustee's

20  acts or omissions as trustee under any of the following

21  circumstances:

22         (a)  The successor trustee succeeds a trustee who was

23  also the grantor of a trust that was revocable during the time

24  that the grantor served as trustee;

25         (b)  As to any beneficiary who has waived any

26  accounting required by s. 737.303, but only as to the periods

27  included in the such waiver;

28         (c)  As to any beneficiary who has released the

29  successor trustee from the such duty to institute any action

30  or file any claim;

31  

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  1         (d)  As to any person who is not a beneficiary within

  2  the meaning of s. 737.303(4)(b); or

  3         (e)  As to any beneficiary described in s.

  4  737.303(4)(b):

  5         1.  If a super majority of the reasonably ascertainable

  6  current income or principal beneficiaries described in s.

  7  737.303(4)(b)1. and a super majority of the reasonably

  8  ascertainable remainder beneficiaries described in s.

  9  737.303(4)(b)2. have released the successor trustee;

10         2.  If the beneficiary has not delivered a written

11  request to the successor trustee to institute an action or

12  file a claim against the prior trustee within 6 months after

13  the date of the successor trustee's acceptance of the trust,

14  if the successor trustee has notified the beneficiary in

15  writing of its acceptance in accordance with s. 737.303(1) and

16  that such writing advises the beneficiary that, unless the

17  beneficiary delivers the such written request within 6 months

18  after the date of acceptance, the his or her right to proceed

19  against the successor trustee will be barred pursuant to this

20  section; or

21         3.  For any action or claim that the beneficiary is

22  barred from bringing against the prior trustee.

23         (4)(a)  Two years after the death of a settlor, neither

24  a trust described in s. 733.707(3) as established by the

25  settlor, the trustee of the trust, nor any beneficiary may be

26  held liable for any claim or cause of action against the

27  settlor by a creditor who seeks to recover from the trust,

28  trustee, or beneficiary.

29         (b)  This subsection does not apply to a creditor who

30  has timely filed a claim against the settlor's estate under s.

31  733.702 within 2 years after the settlor's death and whose

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  1  claim has not been paid or otherwise disposed of, even if the

  2  settlor's estate proceedings have been closed or otherwise

  3  completed.

  4         (c)  This subsection does not affect the lien of a duly

  5  recorded mortgage or security interest or the right to

  6  foreclose and enforce the mortgage or lien.

  7         (f)(5)  For the purposes of this section, a super

  8  majority of beneficiaries means at least two-thirds in

  9  interest of the beneficiaries if the interests of the

10  beneficiaries are reasonably ascertainable; otherwise, it

11  means at least two-thirds in number of the beneficiaries. A

12  release or waiver under this section may be exercised by a

13  legal representative or natural guardian of the beneficiary

14  without the filing of any proceeding or approval of any court.

15  Nothing in this subsection (3) affects any liability of the

16  prior trustee or the right of the successor trustee or any

17  beneficiary to pursue an action or claim against the prior

18  trustee.

19         Section 187.  Section 737.3061, Florida Statutes, is

20  created to read:

21         737.3061 Limitations on actions against certain

22  trusts.--

23         (1)  After the death of a grantor, no creditor of the

24  grantor may bring, maintain, or continue any direct action

25  against a trust described in s. 733.707(3), the trustee of the

26  trust, or any beneficiary of the trust which is dependent on

27  the individual liability of the grantor.  Those claims and

28  causes of action against the grantor shall be presented and

29  enforced against the grantor's estate as provided in part VII

30  of chapter 733, and the personal representative of the

31  grantor's estate may obtain payment from the trustee of a

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  1  trust described in s. 733.707(3) as provided in ss.

  2  733.607(2), 733.707(3), and 737.3054(1).

  3         (2)  This section shall not preclude a direct action

  4  against a trust described in s. 733.707(3), the trustee of the

  5  trust, or a beneficiary of the trust which is not dependent on

  6  the individual liability of the grantor.

  7         (3)  This section does not affect the lien of any duly

  8  recorded mortgage or security interest or the lien of any

  9  person in possession of personal property or the right to

10  foreclose and enforce the mortgage or lien.

11         Section 188.  Section 737.308, Florida Statutes, is

12  amended to read:

13         737.308  Notice of trust.--

14         (1)  Upon the death of a grantor settlor of a trust

15  described in s. 733.707(3), the trustee must file a notice of

16  trust with the court of the county of the grantor's settlor's

17  domicile and the court having jurisdiction of the grantor's

18  settlor's estate.

19         (2)  The notice of trust must contain the name of the

20  grantor settlor, the grantor's settlor's date of death, the

21  title of the trust, if any, the date of the trust, and the

22  name and address of the trustee.

23         (3)  If the grantor's settlor's probate proceeding has

24  been commenced, the clerk must notify the trustee in writing

25  of the date of the commencement of the probate proceeding and

26  the file number.

27         (4)  The clerk shall file and index the notice of trust

28  in the same manner as a caveat, unless there exists a probate

29  proceeding for the grantor's settlor's estate in which case

30  the notice of trust must be filed in the probate proceeding

31  

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  1  and the clerk shall send a copy to the personal

  2  representative.

  3         (5)  The clerk shall send a copy of any caveat filed

  4  regarding the grantor settlor to the trustee, and the Notice

  5  of Trust to any caveator, unless there is a probate proceeding

  6  pending and the personal representative and the trustee are

  7  the same.

  8         (6)  In any proceeding affecting the expenses of the

  9  administration of the estate, or any claims described in s.

10  733.702(1), the trustee of a trust described in s. 733.707(3)

11  is an interested person in the administration of the grantor's

12  estate.

13         (6)(7)  Any proceeding affecting the expenses of the

14  administration or obligations of the grantor's estate or any

15  claims described in s. 733.702(1) prior to the trustee filing

16  a notice of trust are binding upon the trustee.

17         (7)(8)  The trustee's failure to file the notice of

18  trust does not affect the trustee's obligation to pay expenses

19  of administration and obligations of the grantor's estate

20  enforceable claims as provided in s. 733.607(2).

21         Section 189.  Section 215.965, Florida Statutes, is

22  amended to read:

23         215.965  Disbursement of state moneys.--Except as

24  provided in s. 17.076, s. 253.025(14), s. 259.041(18), s.

25  717.124(5), s. 732.107(5)(6), or s. 733.816(5), all moneys in

26  the State Treasury shall be disbursed by state warrant, drawn

27  by the Comptroller upon the State Treasury and payable to the

28  ultimate beneficiary. This authorization shall include

29  electronic disbursement.

30         Section 190.  Subsection (3) of section 660.46, Florida

31  Statutes, is amended to read:

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  1         660.46  Substitution of fiduciaries.--

  2         (3)  Unless a waiver or consent shall be filed in the

  3  proceedings as provided in subsection (4), the provisions of

  4  s. 731.301(1)(a), (c), and (2)(d) shall apply with respect to

  5  notice of the proceedings to all persons who are then

  6  cofiduciaries with the original fiduciary, other than a person

  7  joining as a petitioner in the proceedings; to all persons

  8  named in the governing instrument as substitutes or successors

  9  to the fiduciary capacity of the original fiduciary; to the

10  persons then living who are entitled under the governing

11  instrument to appoint a substitute or successor to act in the

12  fiduciary capacity of the original fiduciary; to all vested

13  beneficiaries of the fiduciary account; and to all then-living

14  originators of the governing instrument. Unless a waiver or

15  consent shall be filed in the proceedings as provided in

16  subsection (4), the provisions of s. 731.301(2) shall apply

17  with respect to notice to all contingent beneficiaries of the

18  fiduciary account. Only the persons or classes of persons

19  described in the foregoing provisions of this subsection shall

20  be deemed to be interested persons for the purposes of this

21  section and the proceedings and notices provided for in this

22  section; and the provisions of ss. 731.301(3) and

23  731.303(3)(4) and (4)(5), relating to notice requirements, the

24  effect of notice, and representation of interests, shall apply

25  to the proceedings provided for in this section.

26         Section 191.  Subsection (1) of section 737.111,

27  Florida Statutes, is amended to read:

28         737.111  Execution requirements for express trusts.--

29         (1)  The testamentary aspects of a trust defined in s.

30  731.201(34)(33), are invalid unless the trust instrument is

31  

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  1  executed by the grantor settlor with the formalities required

  2  for the execution of a will.

  3         Section 192.  In editing manuscript for the next

  4  official version of the Florida Statutes, the Division of

  5  Statutory Revision and Indexing is directed to:

  6         (1)  Change the title of Part II of Chapter 732,

  7  Florida Statutes, from "Elective Share of Surviving Spouse" to

  8  "Elective Share of Surviving Spouse; Rights in Community

  9  Property."

10         (2)  Change the title of Part III of Chapter 733,

11  Florida Statutes, from "Priority to Administer and

12  Qualifications of Personal Representative" to "Preference in

13  Appointment and Qualifications of Personal Representative."

14         (3)  Change the title of Part IV of Chapter 733,

15  Florida Statutes, from "Appointment of Personal

16  Representative; Bonds" to "Fiduciary Bonds."

17         (4)  Change the title of Part V of Chapter 733, Florida

18  Statutes, from "Curators; Successor Personal Representative;

19  Removal" to "Curators; Resignation and Removal of Personal

20  Representatives."

21         Section 193.  This act shall take effect January 1,

22  2002. The substantive rights of all persons which have vested

23  prior to January 1, 2002, shall be determined as provided in

24  former chapters 63, 215, 409, 660, and 731-737, Florida

25  Statutes, as they existed prior to January 1, 2002. The

26  procedures for the enforcement of substantive rights which

27  have vested prior to January 1, 2002, shall be as provided in

28  this act, except that any Family Administration filed before

29  January 1, 2002, may be completed as a Family Administration.

30  

31  

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                              SB 402

  3                                 

  4  Clarifies provisions and cross-references between s. 655.936,
    and s. 733.6065, F.S., relating to the opening of safe-deposit
  5  boxes.

  6  Revises escheated property provisions in s. 732.107, F.S., to
    remove entitlement to interest on escheated property and to
  7  add Florida certified public accountants to the list of
    persons who may receive proceeds on behalf of a person
  8  entitled to escheated property.

  9  Corrects glitches in elective share law, adds protected
    homestead property as excluded property from the elective
10  estate, and adds charitable lead interests as a Class 4 source
    from which to pay an unsatisfied elective share.
11  
    Revises the cap for estates in summary administration from
12  $50,000 to $75,000.

13  Restores court's discretionary authority to award reasonable
    attorney's fees in probate proceedings.
14  
    Prohibits a trustee from making any distributions absent court
15  approval pending a contest to the validity of a trust or a
    determination of the beneficiaries to a trust.
16  
    Clarifies that the most recent supplemental writing referenced
17  in a will governs over provisions in conflict among equally
    effective writings.
18  
    Makes additional technical changes to conform terminology.
19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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