Senate Bill sb1368
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
By Senator Aronberg
27-663A-05
1 A bill to be entitled
2 An act relating to disclaimer of property
3 interests; creating the Florida Uniform
4 Disclaimer of Property Interests Act; creating
5 s. 739.101, F.S.; providing a short title;
6 creating s. 739.102, F.S.; defining terms;
7 creating s. 739.103, F.S.; providing the scope
8 of the act; creating s. 739.104, F.S.;
9 prescribing general provisions relating to
10 persons' powers to disclaim an interest in or
11 power over property; creating s. 739.201, F.S.;
12 prescribing rules applicable to a disclaimer of
13 an interest in property; creating s. 739.202,
14 F.S.; prescribing rules applicable to a
15 disclaimer of rights of survivorship in jointly
16 held property; creating s. 739.203, F.S.;
17 prescribing rules applicable to a disclaimer of
18 interests in property held as tenancy by the
19 entirety; creating s. 739.204, F.S.;
20 prescribing the effect of a disclaimer of
21 interest by a trustee; creating s. 739.205,
22 F.S.; prescribing rules with respect to a
23 disclaimer of the power of appointment or other
24 power not held in a fiduciary capacity;
25 creating s. 739.206, F.S.; prescribing rules
26 with respect to a disclaimer by the appointee,
27 object, or taker in default of the exercise of
28 power of appointment; creating s. 739.207,
29 F.S.; prescribing rules with respect to the
30 disclaimer of power held in a fiduciary
31 capacity; creating s. 739.301, F.S.; providing
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 guidelines for delivering or filing a
2 disclaimer; creating s. 739.401, F.S.;
3 providing when a disclaimer is permitted;
4 creating s. 739.402, F.S.; providing when a
5 disclaimer is barred or limited; creating s.
6 739.501, F.S.; prescribing the effect of a
7 tax-qualified disclaimer; creating s. 739.601,
8 F.S.; providing for recording a disclaimer
9 relating to real estate; creating s. 739.701,
10 F.S.; prescribing the application to existing
11 relationships; amending s. 731.201, F.S.;
12 providing applicability of certain definitions
13 to the act; repealing s. 689.21, F.S., relating
14 to disclaimer of interests in property passing
15 under certain nontestamentary instruments or
16 under certain powers of appointment; repealing
17 s. 732.801, F.S., relating to disclaimer of
18 interests in property passing by will or
19 intestate succession or under certain powers of
20 appointment; providing an effective date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Chapter 739, Florida Statutes, consisting
25 of sections 739.101, 739.102, 739.103, 739.104, 739.201,
26 739.202, 739.203, 739.204, 739.205, 739.206, 739.207, 739.301,
27 739.401, 739.402, 739.501, 739.601, and 739.701, Florida
28 Statutes, is created to read:
29 739.101 Short title.--This chapter may be cited as the
30 "Florida Uniform Disclaimer of Property Interests Act."
31
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 739.102 Definitions.--As used in this chapter, the
2 term:
3 (1) "Benefactor" means the creator of the interest
4 that is subject to a disclaimer.
5 (2) "Beneficiary designation" means an instrument,
6 other than an instrument creating or amending a trust, naming
7 the beneficiary of:
8 (a) An annuity or insurance policy;
9 (b) An account with a designation for payment on
10 death;
11 (c) A security registered in beneficiary form;
12 (d) A pension, profit-sharing, retirement, or other
13 employment-related benefit plan; or
14 (e) Any other nonprobate transfer at death.
15 (3) "Disclaimant" means the person to whom a
16 disclaimed interest or power would have passed had the
17 disclaimer not been made.
18 (4) "Disclaimed interest" means the interest that
19 would have passed to the disclaimant had the disclaimer not
20 been made.
21 (5) "Disclaimer" means the refusal to accept an
22 interest in or power over property. The term includes a
23 renunciation.
24 (6) "Fiduciary" means a personal representative,
25 trustee, agent acting under a power of attorney, guardian, or
26 other person authorized to act as a fiduciary with respect to
27 the property of another person.
28 (7) "Future interest" means an interest that takes
29 effect in possession or enjoyment, if at all, later than the
30 time of its creation.
31
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 (8) "Insolvent" means that the sum of a person's debts
2 is greater than all of the person's assets at fair valuation.
3 A person is presumed to be "insolvent" if the person is
4 generally not paying his or her debts as they become due.
5 (9) "Jointly held property" means property held in the
6 names of two or more persons under an arrangement in which all
7 holders have concurrent interests and under which the last
8 surviving holder is entitled to the whole of the property.
9 Jointly held property does not include property held as
10 tenants by the entirety.
11 (10) "Person" includes individuals, ascertained and
12 unascertained, living or not living, whether entitled to an
13 interest by right of intestacy or otherwise; a government,
14 governmental subdivision, agency, or instrumentality; and a
15 public corporation.
16 (11) "Time of distribution" means the time when a
17 disclaimed interest would have taken effect in possession or
18 enjoyment.
19 (12) "Trust" means:
20 (a) An express trust (including an honorary trust or a
21 trust under s. 737.116), charitable or noncharitable, with
22 additions thereto, whenever and however created; and
23 (b) A trust created pursuant to a statute, judgment,
24 or decree which requires the trust be administered in the
25 manner of an express trust.
26
27 As used in this chapter, the term "trust" does not include a
28 constructive trust or a resulting trust.
29 739.103 Scope.--This chapter applies to disclaimers of
30 any interest in or power over property, whenever created.
31 Except as provided in s. 739.701, this chapter is the
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 exclusive means by which a disclaimer may be made under
2 Florida law.
3 739.104 Power to disclaim; general requirements; when
4 irrevocable.--
5 (1) A person may disclaim, in whole or in part,
6 conditionally or unconditionally, any interest in or power
7 over property, including a power or appointment. A person may
8 disclaim the interest or power even if its creator imposed a
9 spendthrift provision or similar restriction on transfer or a
10 restriction or limitation on the right to disclaim. A
11 disclaimer shall be unconditional unless the disclaimant
12 explicitly provides otherwise in the disclaimer.
13 (2) With court approval, a fiduciary may disclaim, in
14 whole or part, any interest in or power over property,
15 including a power of appointment. Without court approval, a
16 fiduciary may disclaim, in whole or in part, any interest in
17 or power over property, including a power of appointment, if
18 and to the extent that the instrument creating the fiduciary
19 relationship explicitly grants the fiduciary the right to
20 disclaim. In the absence of a court-appointed guardian,
21 notwithstanding anything in chapter 744 to the contrary,
22 without court approval, a natural guardian under s. 744.301
23 may disclaim on behalf of a minor child of the natural
24 guardian, in whole or in part, any interest in or power over
25 property, including a power of appointment, which the minor
26 child is to receive solely as a result of another disclaimer,
27 but only if the disclaimed interest or power does not pass to
28 or for the benefit of the natural guardian as a result of the
29 disclaimer.
30 (3) To be effective, a disclaimer must be in writing,
31 declare the writing as a disclaimer, describe the interest or
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 power disclaimed, and be signed by the person making the
2 disclaimer and witnessed and acknowledged in the manner
3 provided for deeds of real estate to be recorded in this
4 state. In addition, for a disclaimer to be effective, an
5 original of the disclaimer must be delivered or filed in the
6 manner provided in s. 739.301.
7 (4) A partial disclaimer may be expressed as a
8 fraction, percentage, monetary amount, term of years,
9 limitation of a power, or any other interest or estate in the
10 property.
11 (5) A disclaimer becomes irrevocable when any
12 conditions to which the disclaimant has made the disclaimer
13 subject are satisfied and when the disclaimer is delivered or
14 filed pursuant to s. 739.301 or it becomes effective as
15 provided in ss. 739.201-739.207, whichever occurs later.
16 (6) A disclaimer made under this chapter is not a
17 transfer, assignment, or release.
18 739.201 Disclaimer of interest in property.--Except
19 for a disclaimer governed by s. 739.202, s. 739.203, or s.
20 739.204, the following rules apply to a disclaimer of an
21 interest in property:
22 (1) The disclaimer takes effect as of the time the
23 instrument creating the interest becomes irrevocable or, if
24 the interest arose under the law of intestate succession, as
25 of the time of the intestate's death.
26 (2) The disclaimed interest passes according to any
27 provision in the instrument creating the interest providing
28 explicitly for the disposition of the interest, should it be
29 disclaimed, or of disclaimed interests in general.
30 (3) If the instrument does not contain a provision
31 described in subsection (2), the following rules apply:
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 (a) If the disclaimant is an individual, the
2 disclaimed interest passes as if the disclaimant has
3 predeceased the benefactor, unless the disclaimed interest is
4 a remainder contingent on surviving to the time of
5 distribution, in which case the disclaimed interest passes as
6 if the disclaimant had died immediately before the time for
7 distribution. However, if, by law or under the instrument, the
8 descendants of the disclaimant would share in the disclaimed
9 interest by any method of representation had the disclaimant
10 died before the time of distribution, the disclaimed interest
11 passes only to the descendants of the disclaimant surviving at
12 the time of distribution.
13 (b) If the disclaimant is not an individual, the
14 disclaimed interest passes as if the disclaimant did not
15 exist.
16 (c) Upon the disclaimer of a preceding interest, a
17 future interest held by a person other than the disclaimant
18 takes effect as if the disclaimant had died or ceased to exist
19 immediately before the time of distribution, but a future
20 interest held by the disclaimant is not accelerated in
21 possession or enjoyment as a result of the disclaimer.
22 739.202 Disclaimer of rights of survivorship in
23 jointly held property.--
24 (1) Upon the death of a holder of jointly held
25 property:
26 (a) If, during the deceased holder's lifetime, the
27 deceased holder could have unilaterally regained a portion of
28 the property attributable to the deceased holder's
29 contributions without the consent of any other holder, another
30 holder may disclaim, in whole or in part, a fractional share
31 of that portion of the property attributable to the deceased
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 holder's contributions determined by dividing the number one
2 by the number of joint holders alive immediately after the
3 death of the holder to whose death the disclaimer relates.
4 (b) For all other jointly held property, another
5 holder may disclaim, in whole or in part, a fraction of the
6 whole of the property the numerator of which is one and the
7 denominator of which is the product of the number of joint
8 holders alive immediately before the death of the holder to
9 whose death the disclaimer relates multiplied by the number of
10 joint holders alive immediately after the death of the holder
11 to whose death the disclaimer relates.
12 (2) A disclaimer under subsection (1) takes effect as
13 of the death of the holder of jointly held property to whose
14 death the disclaimer relates.
15 (3) An interest in jointly held property disclaimed by
16 a surviving holder of the property passes as if the
17 disclaimant predeceased the holder to whose death the
18 disclaimer relates.
19 739.203 Disclaimer of property held as tenancy by the
20 entirety.--
21 (1) The survivorship interest in property held as a
22 tenancy by the entirety to which the survivor succeeds by
23 operation of law upon the death of the co-tenant may be
24 disclaimed as provided in this chapter. For purposes of this
25 chapter only, the deceased tenant's interest in property held
26 as a tenancy by the entirety shall be deemed to be an
27 undivided one-half interest.
28 (2) A disclaimer under subsection (1) takes effect as
29 of the death of the deceased tenant to whose death the
30 disclaimer relates.
31
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 (3) The survivorship interest in property held as a
2 tenancy by the entirety disclaimed by the surviving tenant
3 passes as if the disclaimant had predeceased the tenant to
4 whose death the disclaimer relates.
5 (4) A disclaimer of an interest in real property held
6 as tenants by the entirety does not cause the disclaimed
7 interest to be homestead property for purposes of descent and
8 distribution under ss. 732.401 and 732.4015.
9 739.204 Disclaimer of interest by trustee.--If a
10 trustee having the power to disclaim under the instrument
11 creating the fiduciary relationship or pursuant to court order
12 disclaims an interest in property that otherwise would have
13 become trust property, the interest does not become trust
14 property.
15 739.205 Disclaimer of power of appointment or other
16 power not held in a fiduciary capacity.--If a holder disclaims
17 a power of appointment or other power not held in a fiduciary
18 capacity, the following rules apply:
19 (1) If the holder has not exercised the power, the
20 disclaimer takes effect as of the time the instrument creating
21 the power becomes irrevocable.
22 (2) If the holder has exercised the power and the
23 disclaimer is of a power other than a presently exercisable
24 general power of appointment, the disclaimer takes effect
25 immediately after the last exercise of the power.
26 (3) The instrument creating the power is construed as
27 if the power expired when the disclaimer became effective.
28 739.206 Disclaimer by appointee, object, or taker in
29 default of exercise of power of appointment.--
30 (1) A disclaimer of an interest in property by an
31 appointee of a power of appointment takes effect as of the
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 time the instrument by which the holder exercises the power
2 becomes irrevocable.
3 (2) A disclaimer of an interest in property by an
4 object, or taker in default of an exercise of a power of
5 appointment, takes effect as of the time the instrument
6 creating the power becomes irrevocable.
7 739.207 Disclaimer of power held in fiduciary
8 capacity.--
9 (1) If a fiduciary disclaims a power held in a
10 fiduciary capacity which has not been exercised, the
11 disclaimer takes effect as of the time the instrument creating
12 the power becomes irrevocable.
13 (2) If a fiduciary disclaims a power held in a
14 fiduciary capacity which has been exercised, the disclaimer
15 takes effect immediately after the last exercise of the power.
16 (3) A disclaimer under this section is effective as to
17 another fiduciary if the disclaimer so provides and the
18 fiduciary disclaiming has the authority to bind the estate,
19 trust, or other person for whom the fiduciary is acting.
20 739.301 Delivery or filing.--
21 (1) Subject to subsections (2) through (12), delivery
22 of a disclaimer may be effected by personal delivery,
23 first-class mail, or any other method that results in its
24 receipt. A disclaimer sent by first-class mail shall be deemed
25 to have been delivered on the date it is postmarked. Delivery
26 by any other method shall be effective upon receipt by the
27 person to whom the disclaimer is to be delivered under this
28 section.
29 (2) In the case of a disclaimer of an interest created
30 under the law of intestate succession or an interest created
31 by will, other than an interest in a testamentary trust:
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 (a) The disclaimer must be delivered to the personal
2 representative of the decedent's estate; or
3 (b) If no personal representative is serving when the
4 disclaimer is sought to be delivered, the disclaimer must be
5 filed with the clerk of the court in any county where venue of
6 administration would be proper.
7 (3) In the case of a disclaimer of an interest in a
8 testamentary trust:
9 (a) The disclaimer must be delivered to the trustee
10 serving when the disclaimer is delivered or, if no trustee is
11 then serving, to the personal representative of the decedent's
12 estate; or
13 (b) If no personal representative is serving when the
14 disclaimer is sought to be delivered, the disclaimer must be
15 filed with the clerk of the court in any county where venue of
16 administration of the decedent's estate would be proper.
17 (4) In the case of a disclaimer of an interest in an
18 inter vivos trust:
19 (a) The disclaimer must be delivered to the trustee
20 serving when the disclaimer is delivered;
21 (b) If no trustee is then serving, it must be filed
22 with the clerk of the court in any county where the filing of
23 a notice of trust would be proper; or
24 (c) If the disclaimer is made before the time the
25 instrument creating the trust becomes irrevocable, the
26 disclaimer must be delivered to the grantor of the revocable
27 trust or the transferor of the interest or to such person's
28 legal representative.
29 (5) In the case of a disclaimer of an interest created
30 by a beneficiary designation made before the time the
31 designation becomes irrevocable, the disclaimer must be
11
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 delivered to the person making the beneficiary designation or
2 to such person's legal representative.
3 (6) In the case of a disclaimer of an interest created
4 by a beneficiary designation made after the time the
5 designation becomes irrevocable, the disclaimer must be
6 delivered to the person obligated to distribute the interest.
7 (7) In the case of a disclaimer by a surviving holder
8 of jointly held property, or by the surviving tenant in
9 property held as a tenancy by the entirety, the disclaimer
10 must be delivered to the person to whom the disclaimed
11 interest passes or, if such person cannot reasonably be
12 located by the disclaimant, the disclaimer must be delivered
13 as provided in subsection (2).
14 (8) In the case of a disclaimer by an object, or taker
15 in default of exercise, of a power of appointment at any time
16 after the power was created:
17 (a) The disclaimer must be delivered to the holder of
18 the power or to the fiduciary acting under the instrument that
19 created the power; or
20 (b) If no fiduciary is serving when the disclaimer is
21 sought to be delivered, the disclaimer must be filed with a
22 court having authority to appoint the fiduciary.
23 (9) In the case of a disclaimer by an appointee of a
24 nonfiduciary power of appointment:
25 (a) The disclaimer must be delivered to the holder,
26 the personal representative of the holder's estate, or the
27 fiduciary under the instrument that created the power; or
28 (b) If no fiduciary is serving when the disclaimer is
29 sought to be delivered, the disclaimer must be filed with a
30 court having authority to appoint the fiduciary.
31
12
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 (10) In the case of a disclaimer by a fiduciary of a
2 power over a trust or estate, the disclaimer must be delivered
3 as provided in subsection (2), subsection (3), or subsection
4 (4) as if the power disclaimed were an interest in property.
5 (11) In the case of a disclaimer of a power
6 exercisable by an agent, other than a power exercisable by a
7 fiduciary over a trust or estate, the disclaimer must be
8 delivered to the principal or the principal's representative.
9 (12) Notwithstanding subsection (1), delivery of a
10 disclaimer of an interest in or relating to real estate shall
11 be presumed upon the recording of the disclaimer in the office
12 of the clerk of the court of the county or counties where the
13 real estate is located.
14 (13) A fiduciary or other person having custody of the
15 disclaimed interest is not liable for any otherwise proper
16 distribution or other disposition made without actual notice
17 of the disclaimer or, if the disclaimer is barred under s.
18 739.402, for any otherwise proper distribution or other
19 disposition made in reliance on the disclaimer, if the
20 distribution or disposition is made without actual knowledge
21 of the facts constituting the bar of the right to disclaim.
22 739.401 When disclaimer is permitted.--A disclaimer
23 may be made at any time unless barred under s. 739.402.
24 739.402 When disclaimer is barred or limited.--
25 (1) A disclaimer is barred by a written waiver of the
26 right to disclaim.
27 (2) A disclaimer of an interest in property is barred
28 if any of the following events occur before the disclaimer
29 becomes effective:
30 (a) The disclaimer accepts the interest sought to be
31 disclaimed;
13
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 (b) The disclaimant voluntarily assigns, conveys,
2 encumbers, pledges, or transfers the interest sought to be
3 disclaimed or contracts to do so;
4 (c) The interest sought to be disclaimed is sold
5 pursuant to a judicial sale; or
6 (d) The disclaimant is insolvent with the disclaimer
7 becomes irrevocable.
8 (3) A disclaimer, in whole or in part, of the future
9 exercise of a power held in a fiduciary capacity is not barred
10 by its previous exercise.
11 (4) A disclaimer, in whole or in part, of the future
12 exercise of a power not held in a fiduciary capacity is not
13 barred by its previous exercise unless the power is
14 exercisable in favor of the disclaimant.
15 (5) A disclaimer of an interest in, or a power over,
16 property which is barred by this section is ineffective.
17 739.501 Tax-qualified disclaimer.--Notwithstanding any
18 other provision of this chapter, if, as a result of a
19 disclaimer or transfer, the disclaimed or transferred interest
20 is treated pursuant to the provisions of s. 2518 of the
21 Internal Revenue Code of 1986 as never having been transferred
22 to the disclaimant, the disclaimer or transfer is effective as
23 a disclaimer under this chapter.
24 739.601 Recording of disclaimer relating to real
25 estate.--
26 (1) A disclaimer of an interest in or relating to real
27 estate does not provide constructive notice to all persons
28 unless the disclaimer contains a legal description of the real
29 estate to which the disclaimer relates and unless the
30 disclaimer is filed for recording in the office of the clerk
31
14
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 of the court in the county or counties where the real estate
2 is located.
3 (2) An effective disclaimer meeting the requirements
4 of subsection (1) constitutes constructive notice to all
5 persons from the time of filing. Failure to record the
6 disclaimer does not affect its validity as between the
7 disclaimant and persons to whom the property interest or power
8 passes by reason of the disclaimer.
9 739.701 Application to existing relationships.--Except
10 as otherwise provided in s. 739.402, an interest in or power
11 over property existing on July 1, 2005, as to which the time
12 for delivering or filing a disclaimer under laws superseded by
13 this chapter has not expired, may be disclaimed after July 1,
14 2005.
15 Section 2. Section 731.201, Florida Statutes, is
16 amended to read:
17 731.201 General definitions.--Subject to additional
18 definitions in subsequent chapters that are applicable to
19 specific chapters or parts, and unless the context otherwise
20 requires, in this code, in s. 409.9101, and in chapters 737,
21 738, 739, and 744, the term:
22 (1) "Authenticated," when referring to copies of
23 documents or judicial proceedings required to be filed with
24 the court under this code, means shall mean a certified copy
25 or a copy authenticated according to the Federal Rules of
26 Civil Procedure.
27 (2) "Beneficiary" means heir at law in an intestate
28 estate and devisee in a testate estate. The term "beneficiary"
29 does not apply to an heir at law or a devisee after that
30 person's interest in the estate has been satisfied. In the
31 case of a devise to an existing trust or trustee, or to a
15
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 trust or trustee described by will, the trustee is a
2 beneficiary of the estate. Except as otherwise provided in
3 this subsection, the beneficiary of the trust is not a
4 beneficiary of the estate of which that trust or the trustee
5 of that trust is a beneficiary. However, if each trustee is
6 also a personal representative of the estate, the beneficiary
7 or beneficiaries of the trust as defined in s. 737.303(4)(b)
8 shall be regarded as a beneficiary of the estate.
9 (3) "Child" includes a person entitled to take as a
10 child under this code by intestate succession from the parent
11 whose relationship is involved, and excludes any person who is
12 only a stepchild, a foster child, a grandchild, or a more
13 remote descendant.
14 (4) "Claim" means a liability of the decedent, whether
15 arising in contract, tort, or otherwise, and funeral expense.
16 The term does not include an expense of administration or
17 estate, inheritance, succession, or other death taxes.
18 (5) "Clerk" means the clerk or deputy clerk of the
19 court.
20 (6) "Court" means the circuit court.
21 (7) "Curator" means a person appointed by the court to
22 take charge of the estate of a decedent until letters are
23 issued.
24 (8) "Devise," when used as a noun, means a
25 testamentary disposition of real or personal property and,
26 when used as a verb, means to dispose of real or personal
27 property by will or trust. The term includes "gift," "give,"
28 "bequeath," "bequest," and "legacy." A devise is subject to
29 charges for debts, expenses, and taxes as provided in this
30 code, the will, or the trust.
31
16
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 (9) "Devisee" means a person designated in a will or
2 trust to receive a devise. Except as otherwise provided in
3 this subsection, in the case of a devise to an existing trust
4 or trustee, or to a trust or trustee of a trust described by
5 will, the trust or trustee, rather than the beneficiaries of
6 the trust, is the devisee. However, if each trustee is also a
7 personal representative of the estate, the beneficiary or
8 beneficiaries of the trust as defined in s. 737.303(4)(b)
9 shall be regarded as a devisee.
10 (10) "Distributee" means a person who has received
11 estate property from a personal representative or other
12 fiduciary other than as a creditor or purchaser. A
13 testamentary trustee is a distributee only to the extent of
14 distributed assets or increments to them remaining in the
15 trustee's hands. A beneficiary of a testamentary trust to
16 whom the trustee has distributed property received from a
17 personal representative is a distributee. For purposes of this
18 provision, "testamentary trustee" includes a trustee to whom
19 assets are transferred by will, to the extent of the devised
20 assets.
21 (11) "Domicile" means a person's usual place of
22 dwelling and shall be synonymous with residence.
23 (12) "Estate" means the property of a decedent that is
24 the subject of administration.
25 (13) "Exempt property" means the property of a
26 decedent's estate which is described in s. 732.402.
27 (14) "File" means to file with the court or clerk.
28 (15) "Foreign personal representative" means a
29 personal representative of another state or a foreign country.
30 (16) "Formal notice" means formal notice under the
31 Florida Probate Rules.
17
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
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.
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 of
18 the administration and obligations of a decedent's estate, or
19 any claims described in s. 733.702(1), the trustee of a trust
20 described in s. 733.707(3) is an interested person in the
21 administration of the grantor's estate. The term does not
22 include a beneficiary who has received complete distribution.
23 The meaning, as it relates to particular persons, may vary
24 from time to time and must be determined according to the
25 particular purpose of, and matter involved in, any
26 proceedings.
27 (22) "Letters" means authority granted by the court to
28 the personal representative to act on behalf of the estate of
29 the decedent and refers to what has been known as letters
30 testamentary and letters of administration. All letters shall
31 be designated "letters of administration."
18
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 (23) "Other state" means any state of the United
2 States other than Florida and includes the District of
3 Columbia, the Commonwealth of Puerto Rico, and any territory
4 or possession subject to the legislative authority of the
5 United States.
6 (24) "Parent" excludes any person who is only a
7 stepparent, foster parent, or grandparent.
8 (25) "Personal representative" means the fiduciary
9 appointed by the court to administer the estate and refers to
10 what has been known as an administrator, administrator cum
11 testamento annexo, administrator de bonis non, ancillary
12 administrator, ancillary executor, or executor.
13 (26) "Petition" means a written request to the court
14 for an order.
15 (27) "Probate of will" means all steps necessary to
16 establish the validity of a will and to admit a will to
17 probate.
18 (28) "Property" means both real and personal property
19 or any interest in it and anything that may be the subject of
20 ownership.
21 (29) "Protected homestead" means the property
22 described in s. 4(a)(1), Art. X of the State Constitution on
23 which at the death of the owner the exemption inures to the
24 owner's surviving spouse or heirs under s. 4(b), Art. X of the
25 State Constitution. For purposes of the code, real property
26 owned as tenants by the entirety is not protected homestead.
27 (30) "Residence" means a person's place of dwelling.
28 (31) "Residuary devise" means a devise of the assets
29 of the estate which remain after the provision for any devise
30 which is to be satisfied by reference to a specific property
31 or type of property, fund, sum, or statutory amount. If the
19
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 will contains no devise which is to be satisfied by reference
2 to a specific property or type of property, fund, sum, or
3 statutory amount, "residuary devise" or "residue" means a
4 devise of all assets remaining after satisfying the
5 obligations of the estate.
6 (32) "Security" means a security as defined in s.
7 517.021.
8 (33) "Security interest" means a security interest as
9 defined in s. 671.201.
10 (34) "Trust" means an express trust, private or
11 charitable, with additions to it, wherever and however
12 created. It also includes a trust created or determined by a
13 judgment or decree under which the trust is to be administered
14 in the manner of an express trust. "Trust" excludes other
15 constructive trusts, and it excludes resulting trusts;
16 conservatorships; custodial arrangements pursuant to the
17 Florida Uniform Transfers to Minors Act; business trusts
18 providing for certificates to be issued to beneficiaries;
19 common trust funds; land trusts under s. 689.05; trusts
20 created by the form of the account or by the deposit agreement
21 at a financial institution; voting trusts; security
22 arrangements; liquidation trusts; trusts for the primary
23 purpose of paying debts, dividends, interest, salaries, wages,
24 profits, pensions, or employee benefits of any kind; and any
25 arrangement under which a person is nominee or escrowee for
26 another.
27 (35) "Trustee" includes an original, additional,
28 surviving, or successor trustee, whether or not appointed or
29 confirmed by court.
30 (36) "Will" means an instrument, including a codicil,
31 executed by a person in the manner prescribed by this code,
20
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 1368
27-663A-05
1 which disposes of the person's property on or after his or her
2 death and includes an instrument which merely appoints a
3 personal representative or revokes or revises another will.
4 Section 3. Sections 689.21 and 732.801, Florida
5 Statutes, are repealed.
6 Section 4. This act shall take effect July 1, 2005.
7
8 *****************************************
9 SENATE SUMMARY
10 Creates the Florida Uniform Disclaimer of Property
Interests Act, to provide rules and guidelines for
11 persons to disclaim interests in property. Repeals
provisions supplanted by the act.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
21
CODING: Words stricken are deletions; words underlined are additions.