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
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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
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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.
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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
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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:
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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
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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:
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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.
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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.--
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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
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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:
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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.
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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
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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
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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
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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
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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;
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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
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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
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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.
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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.
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